Friday, 5 January 2018

Skeleton Arguments



Firm 24B Class of 2017 KSL

1.1 INTRODUCTION

The use of skeleton arguments is a widely used concept in Kenya and it has been borrowed from other jurisdictions such as the United Kingdom. The questions we aim to answer in this discourse are: what a skeleton argument is, its purpose, where to use it, its use in other jurisdiction and how to structure it.

A skeleton argument in any form of legal proceeding is a very important document. It is the first opportunity the judge has to evaluate you as an advocate and your case. Whether you are for the appellant or respondent, the skeleton argument should inform the judge which side you are on, the tenets of your case, and what you are seeking from the court. It should inform the judge what you intend to touch on in your time before them. The skeleton exists to build the foundation of your case and your advocacy exists to bring the judge home.[1]The process of writing a skeleton argument entails one doing an extensive research of their case.[2]

Importantly, the skeleton is not a script, a substitute or a substitute to one’s oral arguments. As such, reading it out to the court would be defeating its purpose and doing your case a disservice. What the court can read, do not read; let it read for itself.

A good skeleton argument 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.’[3]

In addition, the skeleton argument should be as brief and concise as possible. Your submissions in the skeleton will be fleshed out when you are in court.[4]
1.2 DEFINITION

A skeleton has been defined as a supporting framework or basic outline of a particular object or subject matter. Arguments on the other hand refer to a series of reasons or statements of facts which are intended to persuade the court to rule in favour of a party to the hearing.

A skeleton argument is a written document provided to the court prior to a hearing, which summarizes the issues to be addressed during trial and the authorities to be relied upon.[5] Skeleton arguments in essence outline the bare bones of a case that is by providing a brief and concise synopsis of the issues that are to be dealt with by the court. An articulately drafted skeleton argument ought to inform, educate and persuade the court to rule in a party’s favour. Skeleton arguments are like supportive systems that provide a legal and a factual framework just like a human skeleton which supports the human body. The skeleton arguments should however not be used as substitutes for oral arguments.



2.0 PURPOSE OF SKELETON ARGUMENTS[6]

A skeleton argument is meant to persuade fact finders. In trial advocacy, skeleton arguments have an impact on the advocate’s argument. It is a chance given to persuade the court both in advance and in conjunction with the oral argument. Skeleton arguments also provide the forum for the advocate to make his client’s case. The details of the argument are made orally, in person, before the court where the advocate will add flesh to the “bare bones” during his submissions. Lastly, a skeleton argument gives the judge the issue, it poses questions he will answer and it should pose the responses to those questions.


3.0 USE OF SKELETON ARGUMENTS

Skeleton arguments are usually prepared for interim applications, contested hearings, final hearings and appeals. These will be prepared by an Advocate if one is legally represented. If, however, one is a litigant in person, then they might need to draft one personally.[7]

A skeleton argument is most usually produced as a means of presenting the skeleton or “bare bones” of a case before a trial. This gives the judge a brief synopsis of the relevant matters for the court to consider and also outlines both the agreed and disagreed issues between the parties. The detail of the arguments is heard before the court, orally during the trial or hearing.[8] Skeleton arguments are however not intended to replace oral arguments or submissions but rather to save on court time. They help the judge prepare for the hearing by identifying the issues that will be determined thus should be filed in sufficient time before the hearing for the judge to have sufficient time to look at them. 

Furthermore, a skeleton argument is the first opportunity for the judge has to evaluate you as an advocate. Whether you are for the appellant or respondent, the skeleton argument should inform the judge which side you are on and (if necessary) who is joining you in representing the appellant or the respondent. It should inform them what you intend to touch on in your time before them. The skeleton exists to build the foundation of your future victory; your advocacy exists to bring the judge home.[9]

A skeleton argument also saves the court’s time and help in the decision making process. They do so by giving the background of the case and also by the parties stating what they are asking from the court.

The party filing their skeleton argument will also show why they think the court should find in their favour. This might be put into consideration by the court as it makes a decision. They are used mostly to achieve greater effectiveness in the hearing process as they advance the main arguments that will be put forth by the advocate.

Skeleton arguments are usually filed at the pre-trial stage.

However, in some jurisdictions like United Kingdom, there are circumstances when filing of skeleton arguments is unnecessary. The instances include:

a. When the matter in contention is brief, the issues are clear or when the matter is a small claim.

b. When the matter is of urgency such that filing skeleton arguments would be impractical

c. When the court orders 
3.1 THE USE OF SKELETON ARGUMENTS IN KENYA

The municipal law does not expressly provide for the use of skeleton arguments in the country. The Civil Procedure Act,[10] Civil Procedure Rules 2010 and the Criminal Procedure Code[11] have maintained their silence on a pertinent area of law which has been made compulsory in other jurisdictions such as the United Kingdom. The line between submissions and skeleton arguments is blurry within the Kenyan jurisdiction hence one has to rely on the thin jurisprudence that has been created by the Judiciary.

Courts have however encouraged their use as they make the trial process expedient. In Jet Link express Limited v East African Safari Air Express Limited,[12] counsel for the Plaintiff contended that skeleton arguments were an unknown phenomenon in law. The Court however agreed with counsel for defence that the court has powers under Order 50 Rule 18 of the Civil Procedure Rules to limit the time allowed for submissions by the parties or their advocate. It could therefore allow or direct for the filing of skeleton arguments in the interest of time. Similarly in criminal cases, the use of skeleton arguments has become a matter of practice as oppose to a matter of law. Skeleton arguments have been filed for instance in Francis Mburugu Muchena v Republic [13] and George Gitau Wainaina v Attorney General[14].

i. .

It is important to note that the Gichuru rules have since been appealed.

The Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedom of the Individual) High Court Practice and Procedure Rules, 2006 

Through Gazette Notice No. 8167 of 2008 that came in on September 1, 2008, the Chief Justice Gicheru in exercise of the powers conferred to him by section 65(3) and section 84(6) of the Repealed Constitution of Kenya, section 10 of the Judicature Act and pursuant to recommendations by the Expeditious Disposal of Cases Committee of the Judiciary, the Chief Justice made the following Practice Directions among others that;

i. Rule 1. All courts are encouraged to permit the filing and exchange by the parties of written submissions to supplement or replace oral arguments.

ii. Rule 16: All courts are required to generally exercise discretion in favor of expeditious disposal of cases pending before them

Rule 18 stated:

(1)Within seven days from the date of service of the response or further affidavit, whichever is the later, the Registrar shall place the matter before a judge for fixing a hearing date or directions.

(2)The Judge may in giving directions require that parties file and serve written submissions.

This is however not a mandatory requirement because the Judge has the discretion to direct the filing of the submissions. The written submissions in this case may be deemed to be skeleton arguments.

Rule 31 stated:

“Where a party intends to rely on any reported or unreported case, or to quote from any book, he shall lodge with the court, and serve copies of the reported or unreported case or the quotation, as the case may be, two days before the hearing.” This rule is directly inferred from the composition of skeleton arguments as will be seen in the UK jurisdiction below. It is interesting to note that even with the promulgation of the Constitution 2010, these rules still stand and are applicable within the courts as observed in Murang’a Bar Operators & another v Minister For State For Provincial Administration and Internal Security & 2 others[15]


3.2 THE USE OF SKELETON ARGUMENTS IN OTHER JURISDICTIONS

The use of skeleton arguments in the Kenyan context is a foreign concept that has been borrowed from other jurisdictions. We shall look at several jurisdictions that have incorporated skeleton arguments in trial advocacy.
3.2.1 The use of Skeleton Arguments in the United States of America

Skeleton arguments in America are known as a brief on the merits. In as early as the 1800s, the United States Supreme Court mandated attorneys to use briefs on the merits which basically set out the legal points and authorities by which an advocated intended to rely on during the oral argument. A brief on the merits is a document that contains a succinct statement of the case, points of law or facts relied on, the substance of the evidence to be discussed by an advocate during trial.

Rule 28 of the Rules of the Supreme Court of the United States stipulates that oral arguments shall lay emphasis and shed light on the written arguments in the briefs on the merits. This illustrates that it is mandatory for advocates to submit briefs on the merits before oral arguments are made before the court. In 2008, the Office of the Clerk at the Supreme Court of the United States inculcated rules for the electronic submission of briefs on the merits.[16] This cements the use and acceptance of skeleton arguments in the United States legal system. 


3.2.2 The use of Skeleton Arguments in Australia

In the 1950s, the High Court Rules of Australia introduced a voluntary procedure where a party to an appeal had the option of filing a ‘written case’ which summarized the grounds upon which the appeal arose. This brought forth the use of skeleton arguments and their submission thereof in all Australian Appellate courts before oral arguments are heard in court.[17] Before the hearing of an appeal, the parties are required to have exchanged written submissions. This illustrates the wide use of skeleton arguments across different jurisdictions.
3.2.3 The use of Skeleton arguments in the United Kingdom

Lord Woolf was commissioned to write reports on Access to Justice which precipitated the Civil Procedure Rules 1998 applied in Wales and England. The compulsory nature of Skeleton arguments in the English civil system was amongst the changes informed by these reforms. Skeleton arguments are now considered to be part of the pleadings especially in civil appeals. As with the other changes such as case management and pre action protocols,[18] skeleton arguments were intended to remedy the mischief of the slow, expensive, complex and inaccessible nature of the legal system in the United Kingdom.

Skeleton arguments as per Section 5 of the Practice directions 52A on Appeals are intended to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely. A skeleton argument must: be concise, define and confine the areas of controversy, set out in numbered paragraphs, cross-referenced to any relevant document in the bundle(of documents), self-contained and not incorporate reference materials from previous skeleton arguments and should not include any extensive quotations from documents or authorities. Further, the documents to be relied upon should be stated. Where it is necessary to refer to an authority, a skeleton argument must state the proposition of law the authority demonstrates; and identify the parts of the authority that support the proposition. If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why. The cost of preparing a skeleton argument which does not comply with the rules or the time frame allowed by the court will not be allowed on assessment except as directed by the court. The parties should consider what other information the appeal court will need. This may include a list of persons who feature in the case or glossaries of technical terms. A chronology of relevant events will be necessary in most appeals. Any statement of costs must show the amount claimed for the skeleton argument separately.

Section 3 of the Practice Direction 52C - appeals to the court of appeal states that a respondent who files a respondent’s notice must, within 14 days of filing the notice, lodge a skeleton argument with the court and serve a copy of the skeleton argument on every other party to the appeal. In addition, the provisions of section 5 of Practice directions 52A mentioned above must be complied with. This section further limits a skeleton argument to a maximum of twenty five (25) pages. It shall also be printed on A4 paper in not less than 12 point font and 1.5 line spacing (including footnotes),labelled as applicable (e.g. appellant’s PTA skeleton, appellant’s replacement skeleton, respondent’s supplementary skeleton), and be dated on its front sheet. Any skeleton argument which does not comply with these requirements will be returned to the author by the civil Appeals office and may not be refilled unless it complies with these requirements. It must also be served on all the parties to the appeal and the party seeking to refile it must seek leave from the court prior to the hearing to rely on the document. Where an appellant has filed a skeleton argument in support of an application for permission to appeal, the same skeleton argument may be relied upon in the appeal or the appellant may file an appeal skeleton argument. At the hearing, the court may refuse to hear an appeal on a point not mentioned in the skeleton argument filed within a prescribed time. The court may also dismiss an application for costs of making a skeleton argument which is not filed on time.

In Icap Management Services Ltd v Berry [2017] the parties felt the heat when Garnham J expressed his displeasure at the length of the skeleton arguments and volume of other documents. The hearing substantively concerned whether the court should continue an interim injunction against the first defendant employee until the end of his contractual garden leave, a relatively short period of under three months.

Noting that the claimant’s skeleton argument equated to 151 pages with a further 35 pages of appendices, the first defendant’s 158 pages plus eight pages of appendices, and the second defendant’s 51 pages plus six pages of appendices, the judge lambasted the parties for failing to heed the requirement of the overriding objective that cases be dealt with “justly and at proportionate cost” which included allotting to the case “an appropriate share of the court’s resources”.

He commented: “The skill in drafting a skeleton argument lies in the production of a concise outline of the essential elements of the argument which is to be developed orally by the court. The length and complexity of the skeletons in fact obfuscated the real issues in the case.

Temperatures rose further over the “grossly excessive” documentation put before the court. Out of 14,000 pages in those 44 files, the judge was referred to fewer than 100. This was described as “absurd” for a four day trial and betrayed a failure by the parties’ representatives to adopt a sensible and constructive approach. 

Consequently, Garnham J declined to consider all of the arguments advanced in the skeletons, otherwise the judgment would have run to hundreds of pages and not been delivered until after the period for which permanent injunctions were sought, rendering the exercise pointless. He also indicated that a large part of the costs involved in agreeing or producing the vast quantity of material should be disallowed.


4.0 GUIDELINES AS TO THE CONTENT OF SKELETON ARGUMENTS

i. The use of headings and sub-headings to distinctly illustrated on the different parts of the skeleton argument.

ii. It should cite the main authorities intended to be relied upon. Each argument should be followed by full references to the material to which the advocate will refer to in support thereof.

iii. It should be divided into numbered paragraphs and paged consecutively

iv. Each numbered list ought to be followed by a reference to any document which the party intends to rely on. [19]

v. A skeleton argument should be brief and straight to the point. It is therefore necessary to avoid digression, ambiguity and long-windedness when drafting a skeleton argument. The preferred maximum length of a well-crafted skeleton argument is about 20 pages (double-space). 

vi. It should make use of abbreviations such as ‘P’ for ‘Plaintiff’. [20]

vii. One should avoid using footnotes in a skeleton argument. If the point is worth stating, put it in the body. If it not crucial but worth mentioning, one should save it for the oral submissions.

viii. When citing figures, names or abbreviations, one should be consistent in their use to avoid confusion. When mentioning figures, put the figures into words and also in numbers. For example: Kenya Shillings Fifty Million (Kshs. 50,000,000)

ix. When drafting skeleton arguments one should avoid long-winded and lengthy quotations and texts made by scholars or authorities. If they are necessary, cross reference them.

x. When drafting skeleton arguments, start with the strongest point and then build on it to make other points. Start strong.



In the case of Jetlink Express Limited v East African Safari Air Express Limited; [21]Okwengu J held that, “with regard to the skeleton submissions, it is true that there is no specific rule which provides for the filing of skeleton arguments before the hearing of an application. That does not however mean that the filing of skeleton arguments is an unacceptable procedure. Indeed there is no rule in our Civil Procedure Rules providing for the filing of written submissions and yet the procedure has consistently gained root, with approval of the courts particularly in the Civil Courts where both parties are represented.

The bottom line is that filing of skeleton arguments does not prejudice any party in any way. It assists the court by clearly bringing into focus the issues and the parties submissions thereon. This is desirable particularly in a suit such as this one where numerous documents and affidavits have been filed and there is a risk of the real issues being clouded…..he further stated that it is within the court’s discretion in exercise of powers under Order 50 Rule 18 of the Civil Procedure Rules, to order parties to file skeleton arguments so as to shorten the time taken in arguing the application before the court. I cannot by any stretch of imagination see any prejudice that is likely to be suffered by any party by the exercise of such a procedure. I therefore find no good reason to strike out the skeleton submissions filed by the Defendant. To the contrary I order that the Plaintiff’s counsel shall also file skeleton arguments to facilitate the convenient hearing and speedy disposal of the application…”

Skeleton arguments have been used in criminal cases in Kenya and this is substantiated by the case of George Gitau Wainaina v Attorney General,[22] where the respondent filed his skeleton arguments in support of his case and on 12.05.08, the applicant filed his counter-skeleton arguments.

In Icap Management Services Ltd v Berry [2017] the claimant’s skeleton argument equated to 151 pages with a further 35 pages of appendices, the first defendant’s 158 pages plus eight pages of appendices, and the second defendant’s 51 the judge commented that “The skill in drafting a skeleton argument lies in the production of a concise outline of the essential elements of the argument which is to be developed orally by the court. The length and complexity of the skeletons in fact obfuscated the real issues in the case. Consequently, Garnham J declined to consider all of the arguments advanced in the skeletons.


5.0 THE STRUCTURE OF A SKELETON ARGUMENT

Caption 

The caption provides information such as the location of the action, the court, the file number, the title of the action and the parties involved.[23]

Heading 

Immediately after the caption, there is the heading, which marks the entry into the body of the skeleton argument. The heading contains the title of the skeleton argument. It indicates whose arguments they are. That is: “skeleton arguments on behalf of the Plaintiff” Or “the Defendant’s skeleton arguments”.

Where it is likely to have more than one skeleton argument, it is imperative to distinguish them, that is: “First skeleton argument of the defendant.”

Beneath the heading, there is the name of who the skeleton argument is drafted on behalf of.

Introduction 

The introduction is a brief overview of the entire skeleton argument. It indicates to the judge what one wants, why he or she wants it and why it ought to be given to him or her. It ought to be kept brief and to the point. As such, a statement of purpose is essential as it controls the form, content, style and length of the submission. For example, “This is an Appeal against the decision of the High Court on HCCC … dated 12thAugust,2017 that quashed the decision of the IEBC contracting the Dashiki co. to print ballot papers ….The Appellant asks the Court to overturn the decision of the High court, as it erred in interpreting the …….act”

Background /Facts 

This gives brief facts of the case and the holding of the previous court. It is important for the court to have a detailed understanding of the facts. However, have the essential facts and avoid being bogged down with detail. It is imperative not to misstate them. 

Issues 

Identify the key issues that are in contention and you want the court to rule on.

Where the issues are several, label them and if it is an appeal, briefly and precisely say how the issues were decided in the lower court. Also state why that was right or wrong, start swaying the judge to your position.

Applicable law

This section should set out any legal authorities or precedents you are relying on in the submissions

Have the key text of any vital statute 

Have authorities a short abstract that encapsulates the point you seek to make.

Submissions 

Apply the law to the issues point by point. Select the essential points. Only certain types of argument may be acceptable or available to you ensure that the strongest come out clearly. (For example where there is an appeal only on a question of law).

Arrange the points in a recognizable order. Make your strongest point first and build on them.

Be brief and to the point. Aim for simplicity in everything—concept, language, style and presentation. Concrete is preferable to abstract. If something seems unduly complex, break it down.

Use short sentences, short paragraphs, and short submissions. That does not mean that the skeleton argument always has to be a short document. It is important to balance. Do not aim for succinctness at the expense of persuasiveness.

Your case must make some sort of sense in terms of fairness, justice, practicality, principle and policy. It must be clear, coherent and logical. Your opponent’s case should make less sense than yours. It is important to deal with your own case first. Then respond to that of the opponent. This is an especially important if you are the respondent to an appeal.

Conclusion 

In conclusion, point out what you want the court to do. Ideally the conclusion should flow naturally from the foregoing submissions. It should also reflect what you said in your Introduction.

Sign and date the skeleton arguments and also indicate the drawer of the skeleton arguments.
6.0 DIFFERENCE BETWEEN SKELETON ARGUMENTS AND SUBMISSIONS

a. Skeleton arguments are not a statutory requirement whereas submissions are.

In the Civil Procedure Rules 2010, skeleton arguments have neither expressly been stated nor discussed as a requirement in Civil Procedure Law. This does not however stop the judge or magistrate from directing that they should be filed by the parties during trial.

Submissions, on the other hand, have been discussed under the Civil Procedure Rules 2010. For instance, in the case of civil[24] and criminal appeals,[25] any party who does not wish to appear in person may dispose of their arguments in court by way of written submissions. The leave of the court must however be sought in both instances.[26]

b. Skeleton arguments do not substitute oral submissions whereas written submissions could be used in the place of oral submissions.

Skeleton arguments are merely a road map which guide the judge on what issues will be argued and the law to be relied upon during trial. They however do not discharge the obligation to make submissions and are only meant to shorten the time to be taken at trial as alluded to by the learned Judge in the Jet link express Limited decision discussed above. Submissions, specifically written submissions, can substitute physical appearance in court in civil and criminal appeals.



7.0 CONCLUSION

In a nutshell, it is evident that there are a number of reasons for an advocate to use skeleton arguments as described above. An advocate may choose to use a skeleton argument in his argument together with his oral argument. It is important to note that the use of a skeleton argument does not disqualify the presentation of submissions. The discourse has also shown that skeleton arguments are used in other jurisdictions such as the United Kingdom, United States of America and Australia. Lastly, the discussion above has shown how one can draft a skeleton argument; going further to give the differences between a skeleton argument and submissions.
8.0 BIBLIOGRAPHY

BOOKS

Boyle F, Capps D1, Plowden P and Sand Ford C, A Practical Guide to Lawyering Skills (Routledge Publishers Newyork, 3rd Edn. 2005)

G Blank and H Selby, Appellate Practice, (Federation Press, 2008)

Hyam M, Advocacy Skills (4th, Edn)

Kallipetis M and Andrews G, Skeleton Argument: A Practitioners’ Guide, August 2014



ONLINE ARTICLES

Skeleton Arguments and Chronologies <http//www.ein.org.uk> accessed 21 June 2017

Supreme Court of the United States ‘Merits Briefs’ <http//www.meritsbriefs@suprememcourt.gov Last accessed on 20th June 2017> www.rasmussen.libaswers.com<accessed on 14th February, 2017>

Skeleton arguments for Claimants and Respondents < https://privacyinternational.org/node/904> last accessed on < Last accessed on 13th March 2017>


thestudentlawyer.com/2012/10/22/mooting-skeleton-arguments/ <Last accessed on 17th April 2017>

www.separated dads.co.uk/creating-skeleton-arguments-for-court.htmi <Last accessed on 17th April 2017>









[1]https://privacyinternational.org/node/904 Skeleton arguments for Claimants and Respondents <last accessed on 13th of March 2017> 




[3]Ibid 




[5] M Hyam, Advocacy Skills (4th Edn) pg 3- 8 


[6]M Kallipetis and G Andrews, Skeleton Arguments: A Practitioners’ Guide, (August 2014) pg. 2-3 


[7]thestudentlawyer.com/2012/10/22/mooting-skeleton-arguments/ <17th April 2017> 


[8]Ibid, at note 4 


[9]https://www.biicl.org/files/2223_skeleton_arguements_guide.pdf <last accessed 17th accessed on 17th April 2017> 


[10] Laws of Kenya, Cap 21. 


[11] Laws of Kenya, Cap 75. 


[12][2007] eKLR 


[13] [2011]eKLR 


[14]Criminal Revision No. 68 of 2003 


[15][2011]eKLR 


[16]Supreme Court of the United States ‘Merits Briefs’ <http//www.meritsbriefs@suprememcourt.gov>accessed 

20th June 2017 


[17]G Blank and H Selby, Appellate Practice, (Federation Press, 2008) 


[18]The first two protocols in the 1999 CPR related to personal injury and clinical negligence 


[19] F Boyle, et al, A Practical Guide to Lawyering Skills (3rd Edn, Routledge Publishers Newyork 2005) 


[20] Supra n 1 


[21] (2007) eKLR 


[22] Criminal Revision No. 68 of 2003 


[23]www.rasmussen.libaswers.com<accessed on 14th February, 2017> 


[24] Order 42 rule 16, Civil Procedure Rules 2010 


[25] Section 65 (3) Criminal Procedure Code 


[26] Ibid
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