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Irate Lord Justice Jackson uses Court of Appeal judgment to issue lawyers with student-style skeleton argument tips

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Top judge snaps after wading through “35 pages of rambling prolixity”

skeleton-argument

Aghast at the poor standard of modern legal writing in the higher courts, one of the country’s leading judges has gone back-to-basics and issued lawyers with a beginners’ guide to penning a skeleton argument.

Three-quarters of the way through his judgment in an otherwise fairly dry Chancery appeal — which was released on BAILII yesterday — Lord Justice Jackson dramatically segues to the issue of “The appellant’s skeleton argument”, before beginning:

“I have protested previously about the poor quality and excessive length of some skeleton arguments in this court. On occasion the Court of Appeal has deprived successful parties of the costs of preparing their skeletons. So far, unfortunately, this message has failed to reach the profession. Mild rebukes to counsel and gentle comments in judgments have no effect whatsoever. Therefore, with regret, I must speak more bluntly.”

Continuing over the course of five paragraphs, Jackson proceeds to point out that drafting skeleton arguments is “not rocket science” and labels the skeleton submitted by counsel for the appellant — who for reasons of good taste we shall not name here — “as rambling prolixity”.

As a helpful reference point for practitioners we have re-produced those paragraphs in full:

“The rules governing skeleton arguments for the Court of Appeal are contained in paragraph 5 of Practice Direction 52A and paragraph 31 of Practice Direction 52C. (Paragraph 32 deals with supplementary skeleton arguments.) These rules do not exist for the benefit of judges or lawyers. They exist for the benefit of litigants, namely (a) to ensure that their contentions are presented most effectively to the court and (b) to enable the court to deal with its caseload expeditiously, bearing in mind that there is always a queue of appellants and respondents waiting for their matters to be heard.

“In essence an appellant’s skeleton should provide a concise, user friendly introduction for the benefit of the three judges who will probably have had no previous involvement in the case. The skeleton should then set out the points to be argued clearly and concisely, with cross-references to relevant documents and authorities, in the manner prescribed by Practice Direction 52A paragraph 5. The skeleton should not normally exceed 25 pages. Usually it will be much shorter. In a straightforward case like this the skeleton argument would, or at least should, be much less than 25 pages.

“As anyone who has drafted skeleton arguments knows, the task is not rocket science. It just requires a few minutes clear thought and planning before you start. A good skeleton argument (of which we receive many) is a real help to judges when they are pre-reading the (usually voluminous) bundles. A bad skeleton argument simply adds to the paper jungle through which judges must hack their way in an effort to identify the issues and the competing arguments. A good skeleton argument is a real aid to the court during and after the hearing. A bad skeleton argument may be so unhelpful that the court simply proceeds on the basis of the grounds of appeal and whatever counsel says on the day.

“The appellant’s skeleton argument in this case does not comply with the rules. It is 35 pages of rambling prolixity through which the reader must struggle to track down the relevant facts, issues and arguments.

“Although the successful appellant in this case is entitled to his costs, he will not recover the costs of the skeleton argument against the respondents to the appeal.”

Read the judgment in full below (the skeleton lesson is at paragraphs 52-57):

Legal Cheek

28 Comments

Not Amused

Deeply unpopular man says something likely to make him unpopular non-shocker

(2)(4)

Edward Shrumpton

It should be noted that the advocate who produced the skeleton argument invoking Jackson L.J.’s ire was nominated ‘Solicitor Advocate of the Year 2013’…

(2)(5)

Fiat Justitia (with bald tyres)

Jackson is completely right about this, but everyone will ignore him and carry on churning out wanky skeletons and endless authorities bundles.

(1)(1)

Solicitor advocate???

Nothing generally against solicitor advocates but if it is indeed from a SA – due to the changes in the courts over past few years – this can indicate the lack of adequate training given to SA’s compared to their barrister friends over in the inns of court. Going through the bar you are chiselled into presenting perfect skeletons. Be it in mooting, Cumberland lodge and so on.

Maybe a relevant indication of what is lacking with Solicitor Advocates and indeed, why the standard of advocacy is falling.

(3)(2)

Fiat Justitia (with bald tyres)

Lots of barristers produce crap-o-la skeletons. The standard of advocacy is very variable, regardless of the type of gown worn.

(2)(2)

Not Amused

And successful litigants should not be punished in costs merely because a judge has a subjective opinion

(1)(1)

Owen Smith

There was a comment re Solicitor Advocates And quality of training Mr Tear is a Solicitor Advocate but he trained as a Barrister only cross qualifying in 2004

(1)(1)

Fiat Justitia (with bald tyres)

Judges are there to have opinions. You should see some of the bilge that people churn out as skeleton arguments. Jackson’s ranty on this is not before time.

(2)(0)

Not Amused

One can find apologists for all forms of tyranny.

(1)(1)

Julius

Ban all roll-up words in legal documents. They serve no purpose. I bloody hate ‘said’ as well; most reliable way of identifying a buffoon.

(0)(1)

Fiat Justitia (with bald tyres)

I agree. Lord Justice Staunton had a purge of all the hereinbeforesaid and verily believe cobblers thirty years ago, but some people persist with the nonsense.

Comparing Jackson having a moan about crap skellies to a tyrant is a bit Godwinesque.

(1)(0)

Fiat Justitia (with bald tyres)

When I am King, anyone who uses any adjective or adverb, or the formulation “and/or” will be most egregiously killed and/or duffed up.

(0)(0)

CumLaudly

A dislike of “and/or”? Are you Colin Rimer?

(0)(0)

VTESI

@Not Amused “judge has a subjective opinion” – Oh come on! 35 pages to write your argument? That’s what, an MA thesis in page terms?! Seriously, if it takes you that long to cover all the issues and its not for an MA you’re doing it wrong.

(3)(0)

Not Amused

In the family division they now control which font you use.

You do realise that if you defend this new generation of judicial action you are aligning yourself with people who say things like “the culture of tolerance must end”. When in the history of civilised man (I’m will to accept that includes the last 6,000 years) has it been a good idea for humanity to get *less* tolerant?

Judges whine about skeles – non shocker. Judges get grumpy. Judges occasionally think they could do it better. All par for the course all *it has been this way since forever*.

Here a poor person has been economically hit because one man didn’t like another man’s bit of paper – it didn’t impact the case so denying costs seems pretty vile to me.

You go on justifying all this intolerance if you want to – just don’t ask me to join in. Man’s inhumanity to man.

(0)(1)

CumLaudly

Has anyone got a copy of the offending skeleton?

(0)(0)

Fiat Justitia (with bald tyres)

Inhumanity? It’s a Court telling its practitioners not to be dicks. Not a big ask. It’s not Pol Pot. Litigants pay for their lawyers’ cock ups all the time. Anyway, the litigant can say to the lawyer “I’m not paying for your crappy skelly”, and no one will make him pay.

(3)(0)

Anonymous

It’s not an “an otherwise fairly dry Chancery appeal”. It’s an absolutely extraordinary case of Mrs Justice Rose spectacularly cocking up a contempt application. Doing skeletons may not be “rocket science” but nor is telling someone what they are charged with before convicting them of it

(0)(0)

Anonymous

And it’s not just Jackson LJ’s “subjective opinion” about his taste in skeletons. The Practice Directions contain clear requirements (e.g. be concise, define and confine the areas of controversy, and should not normally exceed 25 pages) as well as clear warnings about the penalties for non-compliance. Professionals have no business appearing in the Court of Appeal if they don’t know about these rules. If the skeleton didn’t comply, Jackson LJ is entitled to say so.

(2)(0)

Not Amused

I am confused as to why I must deal with yet another subjective opinion presented as objective fact. The PD is not clear. It is one paragraph long. It is obviously open to wide subjective interpretation.Moreover it is a PD. Not a rule. It seems curious to me that supposedly intelligent people cannot notice the distinction between the two.

I am aware that a substantial subset of the profession approve of the modern drive towards over bearing and ridiculous rule keepers. Personally I am against this nonsense. I would remind everyone that Equity looks to the substance and not the form – but no matter how many times I try to do this, some apologist for basic inhumanity and petty bureaucracy pipes up with a smug restatement of what the ‘form’ requires.

We do not, yet, live or practice in a bizarre totalitarian state where procedural rules (which are legitimate ONLY in so far as they can assist justice) dictate our every move. But endorsing this level of judicial pettiness would get us one step closer – so I refuse to endorse it. You try to justify it if you want to, but I think it’s both vile and stupid.

(1)(2)

Fiat Justitia (with bald tyres)

So you don’t believe in concise and clear presentation of arguments? Obfuscation and verbiage are the traditional way, eh? My apologies for not posting this on vellum.

(1)(1)

Fiat Justitia (with bald tyres)

BTW, I agree that we should avoid procedural formality and strait jackets, and I was glad to take part in the CA cases earlier this year that relaxed the rigours of Mitchell, but asking advocates to write concise skeletons that address the issues isn’t procedural strait jacketing.

(1)(0)

PedantsRUs

Seriously, there are some abysmal skeletons out there. Badly written, prolix, repetitive and not grappling with the issues. Basically, someone in a hurry vomiting words onto a page. Whilst one may argue about style, this criticism is about the substance. The purpose of a skeleton is to inform as efficiently and effectively as possible about facts and law and to start the process of persuading the court of your case. If it does not do both it is a failure. If it has lots of white space, the judge can make notes on it. If it is short, the judge can read it and have a good idea of the case. We stick our necks out when we go into court and if we fail we take it on the chin. We are paid to do a good job. Probably the worst skeletons I have seen have been from Counsel called before about 1992, because they were never taught to do skeletons and are too arrogant to try and find out.

(1)(0)

PedantsRUs

Not all Counsel called before 1992, I hasten to add. Just some of the more arrogant ones. *ducks the barrage of well-aimed wigs*.

(1)(0)

CumLaudly

It is a little odd that, in a case where the first instance judge upheld allegations of contempt which had not been properly put to the alleged contemnor, it is the applicant’s advocate who ends up copping the flak.

“Getting first instance decisions right – it’s not rocket science”. Think of the CA time which would be saved if first instance judges adopted a Practice Direction of not cocking things up.

Note also that the alleged contemnor was unrepresented at first instance. Perhaps the skeleton was long because because the advocate felt that, where his opponent might be unrepresented on appeal, the skeleton should spell things out in some detail.

(1)(1)

Fiat Justitia (with bald tyres)

The issues in the case aren’t relevant to the question of whether the skeleton was prolix and unclear. A crappy first instance decision does not excuse a crappy appeal skeleton. If anything, the more important the case (and this one was important), the greater the need for clarity of argument.

(0)(0)

Inlaw

There are many incompetent Barristers but many Barristers believe that they are the one exception

(0)(0)

Julius

If only I could bottle Not Amused’s outrage…

(2)(0)

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