As a young barrister I scoffed at people who churned out skeleton arguments. I was an advocate. Advocacy was an oral skill. If I could not persuade the Judge with the power of my rhetoric I had no business in the Courtroom. As a more middle aged barrister I railed against Judges ordering skeleton arguments. These were simple points, they were Judges. They should understand the law and be able to apply it after hearing submissions. Did the Judiciary not realise we did not get paid for this written work? If I was not spouting my mouth off in court, the meter was not running.
Turns out I was wrong. Or maybe lazy. Or a combination of the two. So the aspiring or new advocate should not make the same mistake as me. Never underestimate the need for, and the power of, good written advocacy.
What constitutes good written advocacy? Concise is a winner. Do not have a long, rambling document that seeks to set out the entire history of the case and tell the factual story. On the vast majority of occasions it is simply not necessary. If you have not got to the point and the reader is at paragraph 57 on page 12 the client may be impressed by the weight of the document but the Judge is not going to be impressed with its clarity. The two things to remember are to get to the point and to stick to the point. If something is not necessary for the point you are arguing, it should not find its way into your advocacy and particularly not into your written advocacy.
Give thought to what your document is intended to do. Is it a “skeleton argument” or are they intended to be “written submissions”? There is a difference but before I carry on to reveal what it is let me get off point a little (without breaking the rules, this is a blog, not written advocacy) to tell one of my favourite little advocacy anecdotes.
A colleague of mine was in the Court of Appeal, being led by a Silk. The Silk rose to his feet and began “Does the Court have a copy of my ‘Speaker’s Note’?” One of their Lordships lent forward and replied, “Yes Mr X, and we were rather wondering what was the difference between a ‘skeleton argument’ and a ‘Speaker’s Note’?” The Silk paused before answering “Well a skeleton argument would have been two weeks late whereas the Court had made no order for the service of a Speaker’s Note……”
Back to the point. Skeleton v Submissions. There is a difference. Skeleton arguments should be a document to which you intend to speak further. It should identify the issues and the relevant law. The clue is in the word “skeleton”. It should be the bones, not the corpse. Short and concise is the absolute aim here. It enables the Judge and each party to understand where the arguments are going and then allows them to develop in Court.
Written submissions or applications in writing should be the complete work. It should be able to stand alone as your advocacy and require nothing more than for you to develop your submissions at the invitation of the Judge if further elucidation is required or to respond to some submission or development that you have not dealt with in the document itself.
On the whole, I prefer complete written submissions. I will often end them with a paragraph that makes it clear I have no further oral submissions that I seek to make. The full written submissions allow you to have everything before the Judge in advance of the day. It is a document to which the Judge can return and can really analyse.
Of course there is little point in doing a document unless you pay care and attention to it. Firstly the content has to be everything you look for in your oral advocacy. It has to be legally sound with authority for the proposition that you are advancing (with anything contrary to your cause properly identified). This does not extend to the citing of the 57 authorities that deal with anything and everything which is remotely connected to the case in point. Rely upon clear authority. You are not often breaking new ground which requires an historical trawl through all the jurisprudence including the interesting dicta from the dissenting judgment in 1889. Yes it shows you are clever (and possibly a tad dull) but it is not going to help in your average case.
Secondly, as with your oral advocacy, your written advocacy should be attractive. On one level that means the content should be presented in an attractive and digestible format. And I am now talking about how the document looks and reads. I am about to make a rod for my own back here but get the spelling right (these are blogs, not written submissions, so do not go trawling through my spelling here and elsewhere). Remember your audience. Courtrooms are formal places. Don’t use abbreviations, do not neglect to use language properly (and yes, that was an ironic use of don’t). And I am serious. There is no place for isn’t, don’t and shouldn’t in your written advocacy. Be realistic about it. You do not have to say parambulator when you refer to a pram. You are not in Victorian England but you are dealing with an animal (the Judge) for whom formality is their natural habitat.
Try to ensure that the document is easy on the eye. Nicely spaced, properly formatted, paragraphs numbered and the use of headings, if appropriate. Generally speaking shorter sentences and shorter paragraphs work best. Although not too short, this ain’t Twitter. Although it may be amusing to use hashtags……#PrejudcialNotProbative. Emojis are probably frowned upon though.
The language used should be attractive too. Do not forget that you are still seeking to persuade. Whilst oral advocacy and written advocacy will have different structures and language, written advocacy should still engage the reader. It should inform and then encourage an application of the information to the benefit of your client.
Written submissions can be a very powerful tool. In things like sentence appeals in the Court of Appeal they are your only tool. Not I am not suggesting that their Lordships have decided 90% of such cases before they hear from Counsel…..it is just that they are masters at delivering fully reasoned judgments ex tempore. But on the off chance that they may just make up their minds in advance, your grounds and documents in support may be your only chance to win. So get it right.
Before the right Judge, written submissions during the course of a trial can be an incredibly effective tool. If you can, obtain the Judge’s email and send such documents to them electronically. This is convenient and convenient is good. It also allows you to send them to the Judge well in advance of the start of the court day. No handing documents in at the last minute. When you are part heard in a trial this can allow you to set the agenda. Send your argument for the day to the Judge, copy it to your opponent and have the Judge thinking about your arguments from the moment they land in their chambers. And obviously having your argument in full and electronically allows the Judge, who is under tremendous pressure of time, to formulate their own written judgment. And when I say “formulate”, I mean cut and paste from your masterpiece. Every humanbeing likes the person who makes their life a little easier….
There are other forms of written advocacy. The carefully crafted case summary is a thing of beauty. I am not going to dare to give any hints or tips about case summaries. I would no more give advice about case summaries than I would tell LS Lowry the best way to draw a matchstick man. The only thing I will say is that the maxim of making a Judge’s job easy has never been more true than when it comes to the case summary. Like all good advocacy, a case summary is about telling a story and making complicated things seem simple. A good case summary inches the prosecution closer to a conviction. A great case summary shoves the defendant closer to a plea.
Always think about whether written advocacy is going to help. You may have no choice. The court may have ordered a skeleton or the application may require written advocacy by law or regulation. But do not fire something off to just comply. Write something that stands alone as an example of your excellency in advocacy. Sometimes you may have a choice. Do not be shy of utilising the opportunity that writing out your submissions gives you. It may be that something like a chronology will be the perfect adjunct to what you want say in court.
It may have come to me late in the day but learn my lesson. Advocacy is advocacy. It is not just talking.