As Civil Advocacy is one of the exams set by each provider, rather than centrally, there is often a great variation in when each provider holds this exam. If I remember rightly, I sat it in March 2012, so hopefully this piece is timed well enough to catch most providers!
I have to say, if I had to name my favourite exam, this would probably have been it. Civil Advocacy is a very straightforward and structured exam to prepare for, which greatly appealed to my slightly OCD nature. Once you have done the preparation, the only real variable comes in the form of questions from the examiner/judge – otherwise you can plan and rehearse fairly confidently.
The skeleton argument
A large percentage of the marks for this exam are awarded for the skeleton argument, which you prepare beforehand and pass to your examiner/judge at the start of your exam. Therefore it is well worth putting the time into making this as close to perfect as you can – it’s an easy way to build your confidence and get some marks under your belt before you have even started talking.
The biggest thing to remember about your skeleton argument is that it should be skeletal, as the name suggests. This might sound obvious, but I remember being told about people who had arrived with 20–30 pages of skeleton argument when it really wasn’t necessary. It is worth pointing out that a skeleton argument here is different from one you might use in mooting (mooting skeleton arguments are often much shorter and even more skeletal), and also from those you would use in court when in practice (which can be much longer).
The best way to start off a skeleton argument is to draft all the obvious parts: the correct heading with all the parties, the court, etc. Then plot out some basic headings to work with – make these simple, but descriptive and persuasive. We were advised to avoid making these questions, for example, you wouldn’t say,’Is there a serious case to be tried?’ Instead, you would say something like, ‘There is a serious case to be tried’. Your examiner/judge should be able to flick through your skeleton, and from your headings alone, see exactly what submissions you will be making, and these subjective headings are a good persuasive summary.
The easiest thing to do, once you have set out the initial headings for the application, evidence, chronology and anything else you want to present at the start of the skeleton, is to look up the test(s) you will be looking to address, and use each part of the test as a heading or sub-heading.
Make sure it is a good springboard for your verbal presentation.
Finally, remember that white space and good formatting can really transform a skeleton argument. Break it up into paragraphs, use paragraph numbering and sub-sections, and use italics, bold and underlining to differentiate headings and authorities (don’t go overboard though – you don’t want to give the examiner a migraine!)
Bundles were optional at our provider, but I strongly recommend creating one for yourself and a matching one for the judge. Even if you are only working from three or four key documents, it is much easier to present a small bundle to the judge and direct him to tab A2, C1, etc, than to have him sift through his own loose papers looking for relevant witness statements or other documentation. You can also slot your skeleton argument at the front, and if nothing else, it satisfied my OCD tendencies!
The best thing to remember here is that the skeleton argument should act as your springboard, or your cue cards – you can therefore use it to guide yourself and your judge through the submissions. It is also a great crutch if you feel like you might get lost, as you can simply find your place and carry on.
If in doubt, ask your tutors beforehand what you should do if you are unsure…
I am [name] and I appear on behalf of the [Claimant/Defendant] in this matter. Sir, have you had sight of the relevant papers in this matter? You should have in front of you a bundle labelled A1 to C3, and my skeleton argument? Sir, would a brief summary of the facts be beneficial or shall I proceed with the application?
I’m sure it goes without saying, but if you are asking a question (such as those above), do make sure you wait for an answer! This can shape how you proceed, and you don’t want to start on a bad footing by having a flustered judge who hasn’t got all of your papers in the correct place. Although there are many boxes that can easily be ticked, do make sure you are engaging with the judge and responding accordingly, rather than rushing through a list of ‘things I must say’.
It is also worth reminding you that you get a few easy marks for actually using your skeleton argument throughout your speech. The easiest way to do this is to refer back to it every now and then:
Sir, as you will see from paragraph X of my skeleton argument, the application we seek to make today is one for [type of application]. The test for this application, as I’m sure you familiar with, is set out at the following paragraph, which is paragraph X.
Don’t go completely overboard, but if you find yourself talking through more than two or three paragraphs of your skeleton argument without reminding the judge where you are, it is certainly worth reminding them.
Also, do not patronise the judge! The chances are that you will be applying for something fairly run-of-the-mill, involving tests which, in real life, any judge would know like the back of their hand. As this is an exam, you absolutely should not assume this and gloss over anything (you may lose valuable marks by simply failing to mention something), but we were told last year that it was perfectly fine to acknowledge that the judge may be familiar (for example: by saying, ‘Sir, I’m sure you are familiar with the test for this application, but for ease of reference I have set it out at paragraph X of my skeleton argument, and it can also be found at page X of the White Book’). This is probably a point worth clarifying with your particular provider, however, just in case this does vary.
Make sure you also brush up on the procedural rules surrounding the application…
At our provider, the examiners were also required to ask two questions during your speaking time to test your response to intervention. This, slightly bizarrely, was required even if you cover absolutely everything relevant during your oral submissions, making the ‘bank’ of questions slightly obsolete. As a result, I found myself being asked a question which I knew (and the examiner knew, having glanced at my skeleton argument) was going to be addressed during my speaking time anyway. If this happens, ensure you are flexible and can deal with it when asked, if the judge so requires. Make sure you also brush up on the procedural rules surrounding the application – if I remember correctly, these were also something possibly covered in the judge’s interventions.
Two final points: first, make sure you can fit your oral submissions into the allocated time, with a minute or two to spare for interventions; second, do make the most of your mock exam. This is an invaluable opportunity to pick up on anything you need to change before the real exam, and is a great opportunity to build your confidence if you are already doing well!