SKELETON ARGUMENTS

Introduction

It is necessary to prepare a case by taking both a general and specific view of the case, so that
you have it clear in your mind not only what you have to prove or disprove, but also the way in
which you are going to do it. It is part of preparation nowadays to formulate a skeleton argument.

Skeletal arguments are an abbreviated note of the arguments and in no way usurp any part of the
function of oral arguments in court. As the name suggests, it is an outline of the case before the
court and matters to be considered.1

This document is 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.2

It is the structural framework upon which effective advocacy is delivered. 3 It is thus crucial that a
skeleton argument be thoroughly researched, prepared and presented clearly and coherently.4

This is however not a home grown concept. It is borrowed from other jurisdictions. It is therefore
not possible to interrogate the Kenyan stand on skeleton arguments without understanding other
jurisdictions.

A. America

The practice of preparing this document dates back to the 1800s when the US Supreme Court
required attorneys to supplement oral arguments with bare-bones 'Points' which stated the broad
legal points an advocate intended to discuss during oral arguments, and sometimes included
citations to authorities. This document was called a brief on the merits and did not constitute a
stand-alone representation of the argument itself.
1
The Custody Minefield Factsheets – Smartphone Series (optimised for smartphone users). Copyright Michael Robinson 2011.
See http://www.thecustodyminefield.com/SmartPhone/Writing-a-Skeleton-Argument-SP.htm

2
Elizabeth Baron, Preparing a Skeleton Argument for court. See http://www.separateddads.co.uk/creating-skeleton-argument-for-
court.html
3
See http://www.oxbridgeessays.com/services/law/bvc/skeleton-argument
4
Ibid note 2
It comprises of a full-dress argument in writing containing a concise statement of the case, a
specification of errors relied on, the substance of evidence, an argument exhibiting clearly the
points of law or fact to be discussed among other things.

Part VI of the Rules of the Supreme Court of the United States deal with briefs.5 Under Rule
28, an oral argument is there to emphasize and clarify the written arguments in the briefs on the
merits. Currently, an electronic version of every brief on the merits shall be transmitted to the
Clerk of Court and to opposing counsel of record at the time the brief is filed in accordance with
guidelines established by the Clerk.6

B. England and Wales

In the United Kingdom (UK) they are called skeleton arguments. They are compulsory in all
appellate cases, and should contain a numbered list of the points which the advocate proposes to
argue, stated in no more than one or two sentences, the object being to identify each point, not to
argue it or to elaborate on it.

This is then followed by full references to the material to which the advocate will refer in
support of it, i.e. the relevant pages or passages in authorities, bundles of documents, witness
statements, transcripts and the judgment under appeal. It should also contain anything which the
advocate would expect to be taken down by the court during the hearing if more convenient;
materials can be annexed to the skeleton argument rather than being included in it. The main
purpose is therefore to assist the oral argument and enable both the court and the opposing
advocate to work on the material without writing it down.

The Central London Civil Justice Centre has a dedicated email address for skeleton arguments.
There is also a form prescribing the format to be followed.7

Skeleton Arguments in the Kenyan Context

The Criminal Procedure Code Section 65(1) indirectly allows for a form of submissions to be
filed. It states that;

5
Adopted January 12, January 2010 and effective February 16, 2010.
6
Rule 25 (9) of the Rules.
7
CentralLondonCJSKEL@hmcourts-service.gsi.gov.uk here to rules as to the title, format and content are in existence.
“An appellant or, where the appellant is the State, a respondent who does not intend to appear
in person or by advocate at the hearing of the appeal may lodge with the Registrar ..................a
statement in writing of his arguments in support of or in opposition to the appeal, as the case
may be”.

This provision is limited in its scope. It only applies to appeals and in relation to people who do
not intend to appear in person at the hearing. Furthermore, Section 65(3) prevents a person from
addressing the court during the hearing if he/she has filed such a statement in writing without
leave of the court.

Section 97 of the Civil Procedure Act mirrors the above situation in that it applies to appeals
only and parties who do not intend to appear in person at the hearing. Once filed, a party cannot
address the court without leave of the court.8

There is no specific provision in either the criminal procedure or civil procedure codes that deals
with filing of skeleton submissions in subordinate courts. However, through Gazette Notice No.
8167 of 2008,9 Chief Justice Gicheru10 in exercise of the powers conferred to him by Section 10
of the Judicature Act and pursuant to recommendations by the Expeditious Disposal of Cases
Committee of the Judiciary, made the following Practice Directions among others that;

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

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

These directions do not state which courts these rules apply to, be it subordinate courts, courts of
first instance, appellate courts or even tribunals. Therefore, all courts whether criminal, civil,
subordinate or appellant in Kenya as the law currently stands, can ask for skeleton arguments to
be filed at whatever juncture to facilitate the court to expeditiously dispose of cases and assist the
court to reach a ruling, judgment, award or decision.
8
It would therefore be unwise for person to file such a document as they would lose their audience with the court. They would be
at the mercy of the court.
9
That came in on September 1, 2008
10
Chief Justice from 2003 to 2010
Advantages of Preparing Skeleton Arguments

a) Help judges familiarize themselves with the issues and scope of the dispute and thereby
avoid the necessity for a lengthy opening of the case or oral argument

b) Assist the judge and both counsels understand the substance of each side of the argument.

c) Enable time to be saved as they reduce or obviate the need for the judges to take a
longhand note, sometimes at dictation speed, of the submissions and authorities and other
documents referred to.

d) They are a note from which counsel can argue their case as a form of reference before
and during oral argument. They are a great tool to be used in the interests of greater
efficiency.

e) Reduce the length of hearings thereby causing more cases to be heard.

f) If used properly they can be an effective tool to persuade the court to make a ruling in
your favour.

Disadvantages of Preparing Skeleton Arguments

Most of the problems arising out of poor drafting include:

a) Extensive & Scanty Arguments: They sometimes tend to be too lengthy so that the
arguments are lost in the forest of detail or 'too scanty so that the points are listed without
the supporting elaboration which gives flesh and blood to the bare bones of the
propositions. In the process, ‘persuasion’, which is the object of all presentation, seems to
be overlooked.

b) Muddled presentation and an inability to delineate key issues therefore becoming

redundant.

Purpose of Skeleton Arguments

 Informing the Court

A skeleton argument in any form of legal proceeding is a very important document. 11 It is the
first opportunity 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. 12 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.13

 Persuading the Court

At the very least, the use of a skeleton argument allows the advocate two shots at persuading the
court of his case. 14 It is the golden opportunity for you, the advocate, to persuade the judge of the
merits of your case even before you open your mouth. 15 Ideally you should aim to produce a
carefully crafted instrument of persuasion designed to inform, educate, elucidate and persuade
the court both in advance of and in conjunction with your oral argument.16

 Influencing the Court’s Decision

A proper skeleton argument should provide the court with a reasoned justification for finding in
your favour. 17 Your skeleton can be used as an implement of decision. When drafting a skeleton
it is vital to bear in mind what you want the court to say when it gives judgment. 18 The most
flattering judgments incorporate half the skeleton.19

Needless to say, in any skeleton it is vital to give the judge the issue, to pose the question(s) he
must answer. Above all it should give him the answer.

Structure & Content

11
Liam Draper, Mooting – Skeleton Arguments. See http://bcu.academia.edu/LiamDraper/Blog/48524/Mooting---Skeleton-
Arguments
12
Ibid note
13
Ibid note 6
14
Skeleton Arguments: A Practitioners’ Guide, Michel Kallipetis Q.C. Geraldine Andrews Q.C. August 2004
15
Ibid
16
Ibid note 9
17
Supra note 9
18
Ibid
19
Ibid
There is no strict formula for a good skeleton argument. It would normally include the following:
 Heading

“Skeleton argument on behalf of......." These are three vital words which are often omitted. It is
rather important for the court to know whose skeleton it is, and it is not always immediately
apparent from the text. If this is a case in which it is likely that several skeleton arguments will
be submitted, number them: “First Skeleton Argument of the Defendant (“John Brown”). In that
way, the judge can keep the skeletons in date order and immediately find the one he wants to
look at.

 Name and Date

Beneath the Heading, in smaller type, add your name and the date. Judges find it useful to have
this on the front page as well as on the last page.

 Introduction
Start with an introduction. This is a brief overview, a statement of your position. Tell the Judge
what you want, why you want it and why he should give it to you. 20 It includes a summary of the
order you are seeking and the Statute or Act the order falls under.

 Issues

Identify and, if there are several, label them.21 If it is an appeal, say how the issues were decided
below. Say why that was right or wrong. Note that frequently this can itself be the answer.

 Facts/Background of the Case

Never mis-state them. Integrity pays. Highlight the crucial ones. Keep to the absolute essentials
and do not get bogged down with detail. In a case where a more detailed understanding of the

20
E.g. “This is an appeal by the Defendant (“Mr. Smith”) against the decision of Master Topley who refused to dismiss the
action for want of prosecution or breach of a court order. The Claimant (“the Bank”) asks the Court to uphold the decision of the
Master, who exercised his discretion correctly because
a. The breach was the first breach by the Bank and was not deliberate;
b. There can still be a fair trial of the action; Copyright: The Honourable Society of Gray’s Inn – 2004 7
c. A strike-out would be a disproportionate step when lesser sanctions are available and, as the Master decided, more
appropriate.”
21
E.g. The Delay issue, The Prejudice issue, The Breach issue.
facts is important, consider putting them in a separate schedule. This section should also
summarise what is agreed between the parties and what is disagreed

 The Law & It’s Application

This section sets out the points of law and authorities. These include:
 Key texts of any vital Statutes.
 The strongest cases at the highest level.22
Identify essential passages. If a short extract would usefully encapsulate the point you are
seeking to make, you can put the quote in the body of the skeleton. Otherwise, add photocopies
as appendices at the rear of the skeleton & highlight the key passages for the judge (see note
below).
Do not bother with citing trite law. If the law is not in issue, say so. Most judges now welcome
good photocopy authorities.

This section would provide a brief outline of your main arguments. You should refer to facts
supported in the evidence. Apply the law to the facts point by point. Select the essential points.
Only certain types of argument may be acceptable or available to you. 23 Discard or relegate the
weak points. Be candid.
 Conclusion
Say what order you want. Ideally the conclusion should flow naturally from the foregoing
submissions. It should also reflect what you said in your introduction.

 Reading list/cases

If there are any cases you are referring to within your submissions then it is wise to append a
reading list and/or a copy of the cases to the skeleton. This helps to ensure that you make
everything as easy as possible for the court. You should also, if possible, estimate the length of
reading time that will be required. It is important to note that skeleton arguments do vary
according to complexity of the issues.

22
You should use the most recent case law you can find.
23
E.g. where there is an appeal only on a question of law .
Additional Pointers
 Arrange the points in a recognizable order
Make your strongest point first and build on that.24 Try to focus on the three best points: there is
nothing worse than overload.

 Be brief and to the point

Aim for simplicity in everything—concept, language, style, presentation. Concrete is preferable
to abstract. If something seems unduly complex, break it down. Less makes more impact than
more. Use short sentences, short paragraphs; short submissions. That does not mean that the
skeleton argument always has to be a short document: do not aim for succinctness at the expense
of persuasiveness. If the Judge is likely to reserve judgment, he may welcome a document with a
bit more flesh on it – but ensure that every sentence counts. There is no room for mere “padding”
or unnecessary verbiage. Ask yourself why you need that sentence, that paragraph, that phrase. If
you cannot justify it, be ruthless and excise it.

 Clarity, Coherence & Logic

Your case must make some sort of sense in terms of fairness, justice, practicality, principle,
policy. Your opponent’s case should make less sense than yours. Deal with your own case first.
Then respond to his.

24
A building is more than a pile of bricks.