Skeleton arguments

In the good old days, the seasoned advocate rolled out of bed, grabbed his papers and ambled down to court. Apart from a brief perusal of the file or brief, the advocate relied upon his innate ability to build an instantaneous rapport with the judge. Admittedly, as Rumpole knew full well, there were certain judges positioned outside the behavioural norms of the human race, but they were an occasional annoyance sent by whatever force to vex and annoy.

Perhaps this picture is a little fanciful and the virtues of hard work and preparation have always been necessary precursors to performing in court. Where life has undoubtedly changed for the modern legal practitioner is in the increased emphasis on written submission at the expense of oral argument. In a whole range of circumstances '“ not only at trial '“ the judge will be seized of the 'bright' idea that a skeleton argument would assist the court. For this reason, skeleton arguments often accompany applications to 'strike out', for summary judgment and to demand specific disclosure of documents.

Many people fashion their skeleton arguments based on a format, which they find on another file or prise out of the computer. Use of such documents is similar to a 17-year-old getting driving lessons from a member of their family. The family member may be a good driver, but some may be prone to pass on their bad habits to the young practitioner.

Guidance

Where do you look for guidance when faced with the need to prepare a skeleton argument? Clearly, many civil counsel regularly produce skeleton arguments and their documentation may be a useful starting point, if not a universal template. Do not disregard the CPR, which provide the practitioner with considerable guidance on the preparation of skeleton arguments. Take, for instance, the Chancery Guide. According to para 7.20, skeleton arguments are applicable in all hearings, the exceptions being short or urgent ones. Appendix 3 to the Guide sets out the guidelines to be followed in the preparation of skeleton arguments. By contrast, the Queen's Bench Guide (7.11.11) refers to time periods. For trials, the skeleton arguments should be filed not less than two days in advance and for 'substantial applications or appeals' one day in advance. The Admiralty and Commercial Court Guides (J.6.1) assume that skeleton arguments will be served and detail the time periods for their service. The possible contents are set out in Part 1 of Appendix 9.

There is a similarity between each of the Court Guides in the approach they recommend. Taking the Admiralty and Commercial Court Guides as an example, this emphasises (Appendix 9) that a skeleton argument identifies where the issues lie and summarises each party's respective case. It is 'not a substitute for oral argument'. Paragraph 2 requires the parties to avoid lengthy argument, but to identify concisely in numbered paragraphs stating the name of the advocate who prepared the skeleton argument:

• The nature of the case and the background facts.
• The relevant legal propositions and legal authorities.
• Factual submissions to be made in regard to the evidence.

A well-prepared, set out and reasoned skeleton argument will provide a busy judge with a clear executive summary in advance of the issue before him. It guides him to the relevant documents and gives an 'edge' in advance to the advocate who has 'won' on paper, removing from the judge the need to wade through the whole bundle. First impressions are important and sometimes difficult to overcome if adverse to you. Therefore, if you are to score with your skeleton argument, you must comply with any time limits the court may have imposed and certainly provide the skeleton argument in sufficient time to allow the judge to read it. Rather too many skeleton arguments are left on the court registration desk on the day of the hearing, with the plaintive cry that it needs to be passed to the district judge. Unless it is a very simple case, in which event the need for a skeleton argument is questionable, the chance of a judge reading the skeleton argument in advance of the hearing and dealing with his list at the same time is a remote possibility. Late service may simply allow the advocate to reap the benefit of the judge's withering tongue when he steps in to court.

Brevity and informality

Although each of the specialist Court Guides provides guidance on the preparation of skeleton arguments there is no one correct way to draft one. There are some overarching principles. Brevity is the order of the day. For instance, the Chancery Guide (para 3.2 of Appendix 9) refers to a 'normal' limit of 20 pages of double spaced A4 paper, with skeleton arguments being in manner instances much shorter. There is no prescription on the adoption of font size and many advocates are comfortable with '11'. What you actually say should be set out informally, as Appendix 3 para 3.2 of the Chancery Guide proposes, in that for instance it is quite in order to cite a date as '1.10.2005' and cross reference to the bundle in an abbreviated fashion, 'A/345' for page 345 of bundle A with the claimant referred to as 'C'. How to deal with reference to the bundle is a matter of personal taste. On occasions, a secretary may adopt a particular method of presentation because an earlier fee earner also did it in that way. Some advocates include the references in bold type in the main body of the text. These provide the judge with very clear route markers. Others favour footnotes, on the basis that these are less intrusive. On balance, textual references may be better. They are certainly much easier for the advocate to follow in his oral submissions. Footnotes irritate many people, who do not know how much they should concentrate on the footnotes at the expense of dealing with the text. If done to death, footnotes can become a comprehensive piece of text in their own right. Sentence construction is a matter of personal choice. However, it is as applicable here as anywhere else that short sentences are more effective than long verbose ones. Again, avoid the passive. It often smacks of someone who has dictated his skeleton argument and bought thinking time with verbosity. Sir Winston Churchill summed up the wordsmith's dilemma when he remarked that he had written someone a long letter because he did not have time to write a short one. Quality prose, which is effective communication, needs to be worked at. From any first draft much needs to be re-worked, omitted or added to get the finished product just right.

Sometimes an advocate, who is a regular performer in a particular court, will know what the judge likes and will tailor his document accordingly. However, a badly prepared skeleton, often citing the law at too great a length, sticks out and attracts attention for all the wrong reasons. Similarly, although the skeleton should aim for brevity, it must remain meaningful and be intelligible in its own right. There is always a danger that if the skeleton argument is too terse, demanding constant reference to the bundle, the judge will either not bother to do so, or will not be able to apply himself to a review of the bundle in the time he has available.

The facts and the law

The skeleton is argument, rather than advocacy. It should not be utilised to put a spin on the facts. The judge will soon tire of a skeleton argument that he feels there may be a valid reason to distrust. In summarising the core facts in the case you should differentiate between agreed and non-agreed facts. Only those facts which are unambiguously agreed should be treated as such, where for instance the defendant accepts the accuracy of large parts of the Particulars of Claim. Where the facts are not agreed you must: (a) identify the matters in dispute; and (b) summarise the differences of opinion between the parties, identifying where the judge is to find the competing evidence. In putting your case you must summarise all the evidence upon which you rely, cross-referencing to the witness statements and quoting from them if you can do so briefly. You may choose to place quotations in italics to differentiate them from the principal text.

You need to address the law upon which you rely, explaining why it is relevant. Always stick to the two or three genuinely significant cases, rather than introduce a plethora of peripheral authorities. It goes without saying that, as far as possible, cases should be cited with the neutral citation. Advocates sometimes set out a few relevant lines from the relevant law report, but it is better to avoid a lengthy citation. In most circumstances, you should simply refer the court to the relevant paragraphs of the judgment in the skeleton argument, ensuring that your bundle of authorities is provided to the court, sensibly tabulated.

Inasmuch as you know your opponent's case from his witness statements and pleadings, you should address any weaknesses as good points head on. There are no prizes in modern civil advocacy for those who keep their powder dry until oral submissions.

Perhaps the hardest part of any skeleton argument is preparation of the conclusion. In this you wish to coax the court to accede to your point of view without being unduly repetitious. Therefore, you will summarise briefly and in so doing not forget to ask for costs to be awarded in your client's favour.

Paul Newman is a barrister, specialising in construction law and mediation/ADR