Outlining the bare bones of an argument

In the latest instalment of a continuing series, we offer advice on the issues which face solicitor-advocates

Q Should I prepare a skeleton argument for every hearing?A Although not always obligatory, it will help you and the judge if you have a skeleton argument at the hearing.

Depending on the nature of the case, it may be that you will make little or no reference to your skeleton argument when opening the case to the judge, or subsequently.

However, a well- written skeleton argument is an excellent basis for the judgment that you hope the judge is going to give in your favour at the end of the case.

It should be at least double spaced and have large gaps after each paragraph which are needed to enable the judge to write in his comments for his own use as the matter proceeds.

Second, a skeleton argument is a good route map for you to follow when explaining the basis of your case to the judge.

It directs the tribunal both to the relevant facts, by reference to the paginated bundles before the court, and to the authorities.

You will have prepared these in a separate bundle for the court's convenience.

If you lose your way during a submission, or are blown off course by judicial intervention, a clear and accessible skeleton argument can be a life-raft.

Q How full and detailed should the skeleton argument be?A This will obviously depend on the nature of the case.

Typically, the skeleton will identify, in this order: the background to the application or trial; the materials that are before the court (and in which bundles); the issues that exist for the court to determine; your contentions on behalf of your client, together with the authorities on which you rely; the opponent's contentions, with brief reasons for dismissing them; and a conclusion.

The skeleton argument should be easy to read, straightforward to follow, and not confusing or unnecessarily complicated.

Apart from cases which are brought to court in a rush because of their overriding urgency (when a skeleton argument cannot be produced because of lack of time), it is difficult to think of circumstances in which an advocate is not well advised to prepare and serve and deliver to the court a skeleton argument.

Similarly, a chronology is always of value, not least as an aide-mmoire, and should be delivered with the papers to the court.

Q To what extent should advocacy style be varied to suit the occasion?A Without any doubt the advocacy style should be adapted to suit the nature of the judge with whom one is contending.

Check early for individual foibles.

Does the judge hear what you are saying? In one case, a solicitor-advocate outlined at the opening of the trial the materials that were before the judge, including the claimant's skeleton argument.

It only emerged later in the day that the judge had not been supplied with a copy of the skeleton argument and so had not had the benefit of reading the carefully crafted skeleton before the trial began.

Generally speaking, the more sensible the judge, and the higher up the judicial tree one finds oneself, the easier it is to make one's arguments without unnecessary judicial interference, grumpy interjections, and a general failure properly to manage the conduct of the application or trial.

Persuasion is always better than hectoring and you should be alert for indications from the bench - not necessarily made verbally - that certain lines of argument are attractive, whereas others are decidedly not.

Try to get the judge interested in the case, possibly interested in a particular authority that adds colour to it.

Do not forget the extent to which, especially in the lower courts, the judge is faced with an inordinate number of cases of a similar type.

Often cases will have at least one litigant in person who makes the judge's life far more difficult than it might be, and where the judge is, in essence, 'trapped' in the court for five or six hours a day with no respite.

Tell the judge the case is 'interesting' and why, even if, in your heart of hearts, you are conscious of that not necessarily being the case.

As a bonus you may manage thereby to make it interesting for yourself too.

Q Is it ever appropriate to argue with the judge?A It is never appropriate to argue with the judge.

However, there will be occasions when it is not only appropriate, but entirely necessary, to stand up to a judge who is not giving you a reasonable and appropriate opportunity to present your case on behalf of your client or to cross-examine witnesses.

Q How important is research of the authorities?A Researching the authorities is not just important, it is essential.

You may find an authority that will lend credence to your case and will be a knock-out blow.

If there is such an authority, and you miss it, you are, at the least, doing your client a disservice.

Second, you must be prepared to deal with any authorities produced by your opponent - you should have had advance warning of these from your opponent's skeleton argument, but if your opponent has been remiss in this area you do not want to be taken by surprise at a late stage.

Finally, you will look, and feel, a complete fool if the judge comes up with some authority of which you are unaware.

Researching the authorities makes this less likely.

This column is prepared by committee members of the Solicitors' Association of Higher Court Advocates.

For details of SAHCA or its workshop on skeleton arguments (which will be held in London on 22 July) or for a membership application form, contact Sandra Dawson, tel: tel 020 7837 0069.

E-mail your advocacy questions to: sandra@admin4u.org.uk