Flesh out argument but bare bones preferred

On By Kyle McDonaldIn Uncategorized

One of the guiding principles of advocacy is: BE BRIEF.

But, sometimes, just occasionally, some lawyers aren’t brief, even if briefed to be brief. (Who knew?)

I think sometimes, it’s the fear of missing something. We all live in fear of losing a case on a point that we could have covered, but deliberately didn’t cover in the belief it wasn’t necessary.

(Personally, I like at least drafting some sort of written outline of my submissions, because it often helps me sort my thoughts into a more logical — or at least, less illogical — order and see what is needed and what can be culled.)

Theodor Geisel — better known as Dr Seuss — wrote a great little piece on the importance of brevity.

It has often been said
there’s so much to be read,
you never can cram
all those words in your head.

So the writer who breeds
more words than he needs
is making a chore
for the reader who reads.

That’s why my belief is
the briefer the brief is,
the greater the sigh
of the reader’s relief is.

It is possible that somewhere, just maybe, some reader of legal writing agrees with these sentiments.

You might scoff, and say, “No! Surely not!”

But, there are at least three judges in the UK Court of Appeal who quite possibly do agree.

Hat-tip to Paul Bowen QC (@paulebowen). His tweet led me to the recent case of Standard Bank Plc v Via Mat International Ltd & Anor [2013] EWCA Civ 490.

There, Lord Justice Moore-Bick wrote the lead judgment allowing an appeal against granting summary judgment.

At the end of his judgement, His Honour was moved to add a postscript.

25. Before leaving this matter I wish to say something about the skeleton arguments in this case. Although there were two applications before the judge, they were complementary and in substance this was a relatively straightforward application for summary judgment. The hearing before the judge was completed within a day, as was the hearing of the appeal and although a large amount of evidence was filed, it proved possible as a result of co-operation between the parties to produce a single core bundle of moderate length which included all the important documents. In those circumstances it is a matter of concern that the skeleton arguments produced for the appeal run to a total of 116 pages, of which by far the greater part (93 pages in all) is made up of the appellant’s skeleton and supplementary skeleton arguments.

26. In the opening paragraphs of his judgment in Khader v Aziz [2010] EWCA Civ 716, [2010] 1 W.L.R. 2673 Sir Anthony May PQBD sounded a clear warning about the risks to our tradition of oral advocacy posed by excessively long skeleton arguments. He did so following complaints of a similar nature voiced by the members of this court in Tombstone Limited v Raja [2008] EWCA Civ 1444, [2009] 1 WLR 1143 and Midgulf International Limited v Groupe Chimique Tunisien [2010] EWCA Civ 66, [2010] 2 Lloyd’s Rep. 543. I expressly associated myself with the President’s remarks, pointing out that the purpose of skeleton arguments is to inform the court of the essential elements of the parties’ submissions and thereby enable it to understand the issues and arguments arising on the appeal. I also expressed the view that the best way in which to alleviate the increasingly onerous burden imposed by unduly long and complex skeleton arguments is for the court to be far more willing than it has been in the past to disallow all or part of the costs of any skeleton that fails to serve that essential purpose.

27. It is important that both practitioners and their clients understand that skeleton arguments are not intended to serve as vehicles for extended advocacy and that in general a short, concise skeleton is both more helpful to the court and more likely to be persuasive than a longer document which seeks to develop every point which the advocate would wish to make in oral argument. In this context I wish to draw attention to the provisions of Practice Directions 52A and 52C, both of which apply to proceedings in this court. Each of those Practice Directions contains important provisions relating to the nature and content of skeleton arguments. Practice Direction 52C, in particular, contains specific provisions governing their length and presentation. The court will expect the requirements of both Practice Directions to be rigorously observed. Failure to comply with them is likely to be penalised in costs.

Just in case anyone missed it, Lord Justice Aikens added to the complaint about prolixity.

29. I would, however, like specifically to endorse all Moore-Bick LJ has said in his postscript. Overlong pleadings and written submissions — the true “skeleton argument” of bye-gone days no longer exists — which are manufactured by parties and their lawyers have become the bane of commercial litigation in England and Wales. This prolixity only adds unnecessary costs; it does nothing to clarify and simplify the issues or to shorten proceedings, which aims should be the objectives of both pleadings and written submissions. I recognise that this is not a new problem. In a reported case, Mylward v Weldon (1596) Tothill 102, 21 ER 136, [1595] ECHR Ch 1, it is stated that in 1595 the son of a litigant (the report does not say whether the miscreant was a barrister) produced a pleading (a replication, ie. reply) of “six score sheets of paper” which the Lord Keeper deemed could have been “well contrived” in 16 sheets. The Lord Keeper (Egerton) ordered that the miscreant be imprisoned in the Fleet until he paid a fine of £10 (a huge sum) to Her Majesty and 20 nobles to the defendant. In addition the Lord Keeper ordered:

“…that the Warden of the Fleet shall take the said Richard Mylward…and shall bring him into Westminster Hall on Saturday next, about ten of the clock in the forenoon and then and there shall cut a hole in the myddest of the same engrossed replication…and put the said Richard’s head through the same hole and so let the same replication hang about his shoulders with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting and shall shew him at the bar of every of the three Courts within the Hall and shall then take him back to the Fleet…”.

30. That sanction against prolix pleaders and submission authors may not be available today, but failure to comply with the letter of the Practice Direction on written submissions and the failure to heed the need for brevity in pleadings may well lead to strict adverse costs orders.

For good measure, Mr. Justice David Richards weighed in with:

31. I also agree.

Skeleton arguments are intended to be written outlines of the main points a party relies on in its application or case, and used as an aid to oral argument, in contrast to written submissions used as an alternative to oral argument. There are several examples in the Advocacy manual used by the Bar Professional Training Course in the UK, and it seems they’re close to the type of submissions we commonly see in Australia, though point-form appears acceptable as well as fully-fledged prose.

For an alternative view on skeleton arguments, and an insight into advocacy practice in the UK, check out Michael Reed at Working Theory.

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