Skeleton Arguments

Hello. My name is Alistair Hodge. And can I welcome you to this data law webinar on skeleton arguments. Many of you out there watching will be involved in advocacy, whether in the Crown Court, the Magistrates court, county court or the High court or indeed any other form of tribunal. And if you have immersed yourself in advocacy over the last few years, you will know that the concept of the skeleton argument Has taken on far more importance than it ever had. When I, for example, when I started at the bar in 1998, it is now a key tool in various jurisdictions, in particular appellate jurisdictions, to which I will return a little bit later on. What I'm hoping to achieve in the next half hour or so is firstly give you an overview of uh the of good practice for skeleton arguments and weaving in a few amusing stories which will hopefully entertain you along the way in the second half of the webinar. What I'm gonna do is give you 10 suggestions for good practice, things that you should always bear in mind if you like, rules that you should always have in your heads. If you are called upon to draft a skeleton argument for an appeal or any form of advocacy that you may come across. So let's firstly, if we may spend a little bit of time breaking down the phrase, if one can call it a phrase, the two words skeleton argument into its various components. The first word I want to focus on is the concept of the argument. For many of the watching may already have seen the data law webinar on argument advocacy and the principles that I set out in that particular webinar in terms of the presentation of an argument orally, are equally relevant to skeleton arguments. Because at the end of the day it is an argument. It should contain the elements of logos, ethos and pathos as set out by Aristotle in his book rhetoric. Why should it contain the logic, the credibility and the empathy? Because it will engage the reader of the skeleton argument and it will make the skeleton argument far more attractive to them. But let's focus a bit on the argument. Everybody knows what an argument is for the purposes of a skeleton argument in court proceedings. Let me tell you what a skeleton argument is not. It is not simply a recitation of the facts of a particular case that will get you nowhere. The judge or tribunal in a particular case will know what the facts are. The judge, the tribunal have listened to those facts being brought out in evidence over the previous two hours or two days or two weeks or however long the particular trials lasts. They will be immersed in those facts. And the last thing they want to see when it comes to looking at your skeleton argument is simply setting out what actually happened in a particular case. The second thing that a skeleton argument is not is simply reciting the law again whilst we've looked at reciting the facts and telling the judge what happened in the particular case merely to set out the law almost like a university essay gets you nowhere either. Uh, all the judge will do is go away and think, well, I'm far better versed in the law in a particular area equally. And I saw this some years ago when teaching skeleton arguments and, and argument advocacy. One of the students put in a skeleton argument for a particular exercise, which can only be described as a detailed and nonetheless riveting essay on the wagon mound number two, It dealt in detail with great principles of remoteness of damage, and told me everything that I needed to know about the law and remoteness of damage. But of course that had not the slightest relevance to the actual matters that were involved in the case. And if you like, why the judge should find in the students favor on the particular application that they were making. So it is it isn't reciting the fact. It isn't reciting the law and it isn't writing a law essay. So what is it? Well, it's an argument. And as I said earlier, if you've seen my webinar on argument advocacy, you will know what an effective argument is in essence, for the purposes of the skeleton. Let's take a trivial example, if we may that of an application for summary judgment. It is a document that will tell the judge if you're acting for the claimant by way of example why the claimant should be successful in their application for summary judgment equally. If you're acting for the defendant, it should be a document that tells the judge why he should dismiss the claimants application for summary judgment. In other words, the skeleton argument focuses on one word and one word alone, or in fact two words The word because or the word why and never ever forget ladies and gentlemen the why? Because it is the why that is the key issue. Why is it that summary judgment should be granted for the claimant? Why is it that the claimants application for summary judgment should be dismissed? Why is it that a freezing order should be granted in favour of the claimant against the defendant? Why is it on a return date that the freezing order should be discharged? Never ever ever forget that word. Why put simply I suppose looking at it from a different angle. It's why in a particular case you should win and why the other side should lose so much for the argument? What now of the skeletal part of the argument? Well when I think of the word skeleton, I'm taken back to third Year or year nine for those of you who are slightly younger than I am in terms of years at school. But I go back to third year biology when I was taught by the enigmatic, charismatic and thoroughly brilliant. Mr Matthews now Mr Matthews was a biology teacher. He was he was a wonderful man. He was at times a strange man but he was a wonderful man. And I remember at the front of his biology laboratory hanging from the ceiling was a human skeleton. It was in fact a model of the human anatomy with the various bones. And every time ladies and gentlemen I draft a skeleton argument. I think Back to 3rd Year Biology. I think back to Mr Matthews standing in his white laboratory coat next to that skeleton that hung from the ceiling because that is what you are after in the skeleton. It has to be the bare bones of the argument no more the flesh if you like that you will apply to those bones. You can add to that. You can add the flesh to the bones in your oral submissions. Once you're in court making your closing speech or making your application, it is simply a short, pithy document that sets out in brief and in concise terms why you are going to succeed or why the other side should fail on a particular application or course. So in other words, when you're drafting a skeleton argument, basically always ensure that Mr Matthews or that human skeleton is in mind. So how do you do it? How practically do we actually go about putting together a skeleton argument and actually preparing it? Well the first, the way I do it and it's up to you to find your own way. But can I commend this to you? The first thing to do is to write the argument almost not in full longhand but keep in mind brevity. Keep in mind that skeletal nature of the argument and so and committed to paper, Set out your arguments on paper and so that it is there maybe eight or 9 or 10 pages of text. And when you've got that argument, when you know that you've got what you want the court to know and you know how you want the court to find, hit the button, Mark, save and commit that to your floppy drive, your flash drive, your hard disk or whatever it is. And therefore we've got the argument committed to paper. The next stage is to transform that written argument which is more at this stage a series of written submissions which have slightly more detail than they would otherwise need. The job for us now is to make that skeletal. And the way I do it is by using a very simple method called the red pen test. What I would do is I would print off my Document that I have prepared my 10 or so pages and then with a great degree of detail, I will go through that document and I will with my red pen actually physically on the page some of you may be better than me and can do it on screen. But I will remove from that document by way of the red pen things that I don't Need, what one might call Guff. Things that just simply don't want to be there. The classic example that I see when I'm teaching advocacy and skeleton arguments is people that begin a lot of paragraphs with it is submitted. That that's perfectly proper language for an oral submission. My Lord in my submission X. Y. Z. But in the skeleton argument, its surplus to requirements. It doesn't need to be there. They are words that are simply audios. You can get rid of them. And if you want to quote Lord Justice Simon Brown from rock refrigeration and jones, they're merely written water. They carry no meaning. They carry no emphasis and you can take them out and you will find when you apply the red paint test that in fact the document actually shrinks quite nicely. You may have set out, for example, if you're doing a summary judgment application, you may be appearing in front of a district judge or a high court master. Those individuals will be well versed in the law relating to summary judgment and the key authorities that can be found in the white book. Therefore it would be if you have done it in your original draft, if you set out the test, the summary judgment contained within the civil procedure rules, do you really need it? The answer is no equally. If you are acting for a defendant in a summary judgment case, it would be rare to set out a few paragraphs on the facts unless of course the facts were very, very key to the submissions that you were going to make. Uh So again, when it depends which party you're acting for. If you're acting for the claimant, it may be perfectly proper to set out a brief press e of what the case is about. And the factual background, if you're acting on the other side, you don't really need it. You can cut straight to the chase and get on with telling the judge why the application for summary judgment should be dismissed. And if you carry out that exercise, as I say, you will find that the document will get shorter. There is no hard and fast rule as to how long a skeleton should be. In some cases that I do my skeleton maybe no more than a page and a half. It maybe two pages. But invariably for me it would be Rare for me to have a skeleton argument any longer than eight pages. The other practical point to bear in mind, which is an important one is if you are handing in a skeleton argument to your court on the day, make sure you or your office or whoever have acquired the use of a very straightforward tool called a stapler. Trust me, paperclips are no use. You must use a stapler and ensure that your your skeleton argument is stapled together. Why? Because we know in the court system there's a lot of paper going around and pages may go missing. You want to ensure that the judge has each and every page of your skeleton argument. Let me turn now to the importance of skeleton arguments in modern day trials, litigation and advocacy. It is now in most appeals perfectly possible to win your appeal by way of the skeleton argument and by when the appeal, I mean, either get it allowed if you're acting for the appellant or indeed if you're for the respondent to the appeal in having it dismissed, much can be said for trials as well. If skeleton arguments go in before any of the evidence is heard, it very often focuses your tribunal or courts mind into your own end goal in that particular case and what you're going to be saying at the end of the trial about the various different issues in the case. But there's a further practical implication that it's important to bear in mind. Remember that judges are incredibly busy individuals. It may well be the case that a judge returns to their room after a long day in uh in court and they're doing some applications the next day And there's a list of maybe 10 or 15 applications and the first application the judge picks up and looks at is a lever arch file of paper. There is that amount of documentation in the fire but on top of the file is a beautiful short, pithy skeleton argument. What's the judge gonna read? Well, the reality is the judge is going to read the skeleton. Uh he or she may dip into the documentation but if you've done an effective skeleton that is going to help the judge, it's automatically gonna put the judge on your side. I mentioned earlier about skeleton arguments being able to win new cases before you even say anything in court. That is absolutely true. I remember one of my first appearances in front of the Employment Appeal Tribunal, in front of Judge Peter Clark and in accordance with the Employment Appeal Tribunal rules, skeletons had been submitted by myself and my opponent in advance of the particular case. Clearly the Employment Appeal Tribunal presided over by Judge Peter Clarke had read those skeletons before we went into court and it goes further because I stood up and waxed lyrical for about half an hour, and why my appeal should be allowed. And then my opponent spoke for about 20 minutes as to why the appeal should be dismissed. And what are what happened after that? Ladies and gentlemen are the things that only dreams are made of, because I will never forget this because Peter Clark looked at both of us and said, thank you gentlemen, we shall retire. And he and his fellow members stood up and they left the tribunal and they retired for about four minutes, probably long enough for a quick swig of a cup of coffee and say, what are you doing this weekend, et cetera. And they came back in and Peter Clark. Judge Peter Clarke on his desk, he had a sort of desktop computer with a bit of a sort of armed thing and he simply adjusted the arm, looked at us both smiled and began. This is an appeal from the Southampton Employment Tribunal promulgated on the 31st of January of 2000 and two. We shall refer to the parties as the claimant and the respondent. The judgment was already written, it was already on the screen. They, the Employment Appeal Tribunal had felt able to decide the case based on the skeleton arguments that had been submitted in advance in which they had read that ladies and gentlemen emphasizes the importance of a good skeleton. But for some of you, I hear you cry. Does that mean that oral advocacy is now dead? Doesn't mean it doesn't matter now. Of course it doesn't. Because of course what Peter Clarke did in my appeal was within some of the arguments that I made on the day into his judgment. He would finish a particular paragraph that had been pre written on the screen and would do something like this On 24 February, Mr Hodge on behalf of the appellant tells me today in oral argument that the tribunal failed to apply the second limb of the test in latin Marshall. We reject that On 24 February of 2003 and so on and so forth. And he continues with the written judgment. But don't whatever you do, take this as me saying that oral advocacy is dead and is at an end. I'm far from saying that Uh long before my time there was a story in relation to a criminal appeal that was presided over in the court of appeal by Lord Justice Hobhouse and two fellow Court of Appeal judges and the Queen's counsel who argued the appeal point in the morning wax lyrical from around 10:30 a.m. Until 12 50 PM. And the QC sat down. I was quite happy to have sat down and finish the submissions. Lord Justice Hobhouse looked at the uh both parties and sort of said, well that looks as though it's it's clearly time to have a spot of lunch and their lordships of Roads and Lord Justice Hop House. The one thing about him was he didn't have a particularly quiet voice and as they exited the court and went down the corridor, he was heard to moan. Well that's buggered up the judgment, hasn't it? We're going to have to rewrite the draft because again, they had decided the case based on the skeletons, but the oral advocacy of the Queen's counsel on the day had persuaded them. So oral advocacy is still alive but mirrored by the importance of an effective skeleton argument in the time that I have left. Can I now turn to some top tips from me about the drafting of skeleton arguments? Uh the first and some of these will be tried and some of these will be second nature to many of you. But they are still mistakes that are made in practice and it's very important that you don't make these same mistakes. The first matter I want to talk about is actually the naming of the document. It is of little use to a judge to simply head the document skeleton argument. Indeed, if you're drafting skills are not yet developed, developed to the extent that they should be. It may well be that the judge will get so far into the document and not have the slightest idea whether it's actually an argument on behalf of the claimant or indeed an argument on behalf of the defendant. So always make sure that your judge is not having to carry out the exercise of working out who submitted the skeleton quite clearly on the header. You can say skeleton argument on behalf of the claimant skeleton argument on behalf of the defendant, skeleton on behalf of the appellant. The respondent etcetera make it clear on the first page so that the judge knows exactly who has submitted the argument. The second point I would make is really one of style. Again, a written skeleton argument should use numbered paragraphs and it should be paged consecutively again. Watch the pagination of paragraphs. Uh I've done done appeals where I remember one in particular where my opponent had drafted a skeleton argument and the pagination of the paragraph Numbering had gone awry. Uh this this sometimes happens it's easier to do if you if you like me you prefer not to use automatic numbering. And I in the course of my submission referred them to paragraph 12 of my opponent skeleton argument which prompted a line from the judge. Which one? I said so I'm not with you. He said well your opponent skeleton argument has three paragraph 12. So try and avoid that because obviously it doesn't look very good on you. It shows a lack of competence. A lack of care uh indicates that you haven't really read it with great care before actually submitting it. Uh Some of the guides will have rules as to lay out a good trick that I use is always to use double spacing between each line. That means that the judge or whoever can right in amongst the lines of your skeleton argument and a good practice is to use uh no no less than 12 C. P. I obviously we are judges are all human beings. I wear spectacles and smaller print is more difficult to read again. I would make sure there's a decent space at the end of each paragraph so that the skeleton itself is aesthetically pleasing on the eye. The more aesthetically pleasing it is on the I the more likely it is that the judge will want to read it. Good skeleton. And this is a requirement of some of the guides must also identify the advocate or lawyer who wrote it. In Other words do not simply think well let's just put in a skeleton and put nothing at the end or put the date. Put your name on it. It's your document, you've got care of it and you're responsible for its contents. So in other words it's not just a simple formality of putting your name to it. It does carry some weight under the rules I mentioned a moment ago. The date. The date is also more also important because in certain larger cases there may be multiple skeletons. It may be that over the course of a number of preliminary hearings that matters have changed and it's important that the judge knows which skeleton is the most recent of the skeletons. And the easiest way to do that is just to make sure that every skeleton has a date so that it's easier to follow equally if you're dealing with an appeal against various matters. And there have been different skeletons for different hearings. Having the date of the hearing to which that skeleton relates is also a good practice because it means that the judge will be able to focus on the skeleton with which he or she is going to be concerned. I've said a number of things about argument style and telling the judge where you're gonna go or telling the judge what you want, why you should get it and then telling him why he should grant it. That sort of three phase style. Again, any form of skeleton argument should begin right at the outset by putting the judge in no doubt as to what the application is about. Therefore, the submission should summarize in no more than one or two sentences right at the very start what the particular hearing or application is about. For example, this is a Claimants Application for Summary Judgment Arising Out of a Hire Purchase Agreement dated 22, 2015. No more, no less. The judge instantly knows its summary judgment application and you will be surprised ladies and gentlemen, when it comes to oral advocacy, how many people actually begin their submissions without actually ensuring that the judges aware what the application is and what is going on again? Your skeleton should engage the legal and factual submissions that you are making. It's important that they are contained therein because they are the important part of the argument. But again, I go back to what I said at the beginning. It's not simply setting out the fact, it's not simply setting out the law. It's remembering that question. Why? Why is it that the judge should find in your favor on a particular issue? Why is it? The judge should dismiss a particular argument that is contended for by the other side. I said a moment ago about setting out that the nature of the application at the very start of the skeleton, the next stage of that is actually to set out what you say about the particular issue in the case. Because at the end of the day saying that it's an application for summary judgment, well, that could mean a number of things. What is it you actually want. So, after you've set out in brief terms, what the case is about and what the application is about, put your spin or put your side, your sides case on the particular issues in the case. So, for example, in a case that might require a number of things for summary judgment make it clear. In the second paragraph in this application, the claimant seeks summary judgment on the claim in the summer of however many £1000 delivery up of certain goods whatever the orders maybe, and make sure the judges crystal clear right in those first two paragraphs, one that it's summary judgment and secondly, what you're saying about the particular issues in the case, authorities. There's a sort of mixed thinking about how to deal with authorities. Obviously, if you are going to insert chunks of authorities into the skeleton argument that obviously takes up more space, it may well in some cases be so fundamental that you need to or you should have the actual words of a judgment weaved into the skeleton argument. There's no right or wrong answer to this. Some advocates, I know will keep the skeleton when it comes to referring to legal authority. They'll state the proposition and they'll put the authority and then in oral submission, they will flesh it out by going to the text of the authority. If however, the point that you are making can be summed up in a minute and by that, I mean, no more than five lines a minute piece of text, then by all means feel free to cite that particular passage of a judgment in the skeleton arguments. Now, some final points be fair, fairness is one of those things that goes hand in hand with ethos. Back to Aristotle's arguing about credibility and your credibility as an advocate and as an arguer, if there are authorities that exist that are inconsistent with the proposition for which you are arguing, deal with them, deal with the other side's case and try and set out with some confidence and authority. Why it is that the particular case should be distinguished or why it is that your opponent is wrong to approach a particular point in a particular way, fairness is everything. And the court will love you for it if you see that you are making concessions where possible. Finally be persuasive. I know it's difficult to teach someone to be persuasive on a piece of paper, but there are various ways of doing it because as we know from oral advocacy brevity is everything. The most effective advocacy is the simplest short sentences, very few uses of sub clauses and punctuation. Just keep it incredibly simple. Uh, again, and I emphasize this in the webinar on argument advocacy. You should always treat the court in the skeleton as though it's the first time listener a skeleton. The first time reader imagine that the judge is coming to this totally a fresh. What are the key issues that you want? The judge to know you're going to be arguing for when it comes to the oral advocacy. It's very easy in a skeleton to assume knowledge and to assume that the judge will be able to follow everything that doesn't actually work in every single case. And if there were one other point I could give you its beacon size, it's going back to Mr Matthews, it's going back to that skeleton. Uh And there have been too many examples in recent times at court of appeal level where judges have torn to shreds skeleton arguments for those of you who want to do some further reading, Just look up on bailey the case of robert Tchenguiz when it got to the Court of Appeal And in particular the cost judgment on the changes case, Lord Justice Voss, Lord Justice Jackson and Lord Justice Lady Just as sharp are the three judges. And what you had in that case was a skeleton argument Submitted on behalf of the appellant that ran to something like 37 pages. There was then a supplemental skeleton arguments submitted to the court of appeal, which ran to 40 pages. So 77 pages of skeleton argument to put this in context and Lord Justice Jackson makes this point. This is in the context of a judgment of a high court judge Mr Justice IDa. That ran to some 11 pages now. Ladies and gentlemen, that is total and utter overkill. There is no reason for a skeleton or supplemental skeleton to be of that length and from memory of that particular costs judgment where they dealt the skeleton arguments. Uh The appellants were refused the costs of those additional skeletons because the court took the view it was totally unnecessary. So there we are. I hope that's giving you some pointers to go out into the big wide world and draft skeleton arguments. I wish you well in your drafting and look forward to seeing you against it.