Lord Donaldson stated in his 1982 Practice Note that in some cases it “may be desirable to ask for … a skeleton of the argument for both parties”. He could not possibly have been aware that 30 years later skeleton arguments would be required on all civil appeals.
In the intervening years written advocacy has flourished. QCs Geraldine Andrews and Michel Kallipetis collated advice from papers written by Lord Justice Mummery, Mr Justice Hunt and Edmund Lawson QC to present a practitioners’ guide to skeleton arguments for the British Institute of International and Comparative Law (BIICL). 10 years on we have picked their most valuable snippets of advice and shared them below.
The purpose of your skeleton is not to provide a lengthy commentary but to outline your case and argument. Sir James Hunt shared the anonymous judicial reaction to receiving a 35-page document: “This is not a skeleton, it’s a fat stiff”. The trend for long skeleton arguments has not been embraced by everyone, as discussed in another of our recent blog posts.
The judge is “the consumer” for whom the skeleton should be presented in an easily digestible manner. Advice stretches from ensuring you use a ring binder and dividers with an index, to printing on one side only with wide margins (for notes) and big spacing. A key piece of guidance is to use names “instead of respondent/appellant or claimant/defendant, which change with appeals and can be extremely confusing in multi-party litigation.”
“Aim for simplicity in everything – concept, language, style, presentation”. Sentences, paragraphs and submissions should all be short. Andrews and Kallipetis clarified that you should not “aim for succinctness at the expense of persuasiveness”; rather, you ought to “ensure that every sentence counts”.
As you streamline your wording you ought also to condense your authorities by “select[ing] relevant and best cases. Always ask yourself whether you need to cite a particular authority, and why”.
Most importantly, your case must make sense “in terms of fairness, justice, practicality, principle, policy. It must be clear, coherent and logical”. Possibly the most important statement from the BIICL paper was this: “Your opponent’s case should make less sense than yours”.
The judge will read and consider your skeleton before he has heard a word of your oral argument. It may well form the basis of his opinion. The BIICL paper submitted that “a carefully drafted written submission can, when skilfully used at the oral hearing, enhance the impact of argument … the use of a skeleton argument allows the advocate two shots at persuading the court of his case”. Ideally your submission “should provide the court with a reasoned justification for finding in your favour”. An extremely persuasive skeleton can easily be incorporated into a reasoned judgment.
A well prepared and planned skeleton can persuade a judge and influence a case, as much as, if not more than, your oral argument.
As Lord Bowen said to his pupil HH Asquith, “cases are won at chambers”.