Letters to a Law Student – ReviewOctober 22, 2012
Pre-Contract Enquiries – PLP Part 1October 24, 2012
Our work is only beginning. There will be a lot of conflicts. They have a contract with us, but there are some holes in it. It’s bare bones, there has to be some areas to talk about and deal with.
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. 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.
What does one look like?
See the resources tab at the bottom of the page to see an example skeleton argument by Lawbore in answer to the moot problem used in the English Speaking Union–Essex Court Chambers National Mooting Competition 2000/01 Rogers v. Ricardo.
Whether your university has a mooting society, a legal society with mooting officers, lecturers who help with mooting or no lecturer involvement, the people involved with mooting at your university should have a copy of a skeleton argument, probably from a moot in the past. Ask to see it. Your university may have separate conventions on how to draft a skeleton argument that this article either does not suggest or suggests against, therefore you should check to see how your own university drafts them.
So, how do I write one?
If you are involved in mooting, you will be asked to provide a skeleton argument at some stage whether it is for a competition being run for the benefit of your law school’s students or whether it is a national mooting competition. If you have read this far, chances are that you need to draft one and don’t know how or you’ve drafted one before and want to pick up tips on how to improve yours.
The first step to writing your skeleton is making sure that you have a template to draft your material on. If your university moots actively on the competition scene, then it is likely you will have a template. Speak to whomever is responsible for mooting at your university and get yourself a template. If your university doesn’t moot actively or have a mooting society, try using Google to see if there are any templates available online for inspiration.
The second step, but crucially the most important, in the process of writing a skeleton argument is doing your research. It doesn’t take a genius to figure out that if you have a moot problem but haven’t bothered to look at the area you’re going to be mooting on, then you will find writing a skeleton argument challenging. Your reading will direct you and should give you an idea of what you may argue in your moot.
Regardless of who you are representing, look at the ground of appeal you are arguing for or against. The resolution of the moot question will, arguably, be yes or no. If you are arguing for yes, then it is your task to come up with reasons why the court should say yes. If you are arguing no, then the same applies.
You should be able to come up with between three and four reasons for why the Court should find in your favour. You won’t want to use three or four completely different reasons because in 10 or 20 minutes even the most accomplished of advocates will find persuading a judge on three or four separate issues a challenge so you should eliminate your weakest points and leave only the most compelling or persuasive points.
Put your points down onto paper. At this stage, you do not need to be writing into the skeleton argument template but you may choose to do so. You may find it more helpful to write it on a fresh piece of paper so that you do not feel bound by your previous writing. The key here is to summarise your best points and what it is you are going to say on the day of the moot.
The million pound question is how long should it be? The answer, of course, is how long is a piece of string? Each advocate should have their own personal style. How long it takes you to be persuasive and to summarise your argument is up to you.
You should however, consult the rules of the mooting competition you are entering – for example the Weekly Law Reports Mooting Competition says a skeleton argument should be no longer than two A4 pages and other competitions say a skeleton should be no longer than one A4 page.
This stage should be a continually evolving process. You should keep reworking what you have so that you can draw the most impact from what you have written. Ultimately you can stop when you feel happy with it.
During your research and drafting stages, you will have identified the cases that you feel are strongest for the argument you wish to put before the court. You will, however, want to make sure that you have the correct citations for the authorities you intend to rely on and that you have access to them either through Westlaw, LexisNexis or your university library. There’s nothing worse than submitting a skeleton argument with an obscure case that you then can’t find a copy of.
Edit and proofread
Once you have cemented in your head the arguments that you will be using in the moot, you have verified that you have access to the cases that you will be relying on, and you are confident that your argument is the best way to proceed, you should again review your material. If you are in a competition where you have been given a partner, you should review your material as a team, so that your material does not overlap or, if it does, that it is necessary to resolve the moot question.
Proofread your document to make sure that you have achieved the desired goal of a skeleton, that you have complied with the rules of the competition and that you are happy with it. Feel free then to send it to your opponent and look forward to the preparation that comes with getting ready to stand on your feet for 10 to 20 minutes and moot.
Arguably the most fraught time in the mooting process is the exchange of skeleton arguments. Students spend significant time, on edge, drafting and editing their skeleton arguments before receiving final approval to send them over in time for the deadline. Then comes the waiting. Teams are supposed to pre-arrange a time to exchange their skeletons so, in theory, when your skeleton is winging its way through the internet to them, theirs should be hurtling toward you. Sometimes, however, it doesn’t work like that. It is not unknown for teams to send their skeleton arguments earlier than the deadline, nor is it unknown for teams to send them after the deadline. It could be gamesmanship, it could be technical problems, or it could be one of a variety of factors. You will have to use your own judgement to see whether you think the wait is motivated by foul play or not. Awaiting a skeleton when it is past the deadline can be ever so frustrating because the reason it hasn’t been sent could be perfectly innocent or it could be because your opponents are taking the time to read your skeleton and then amend theirs before they send it over. This doesn’t help a student’s constitution at the time of exchange!
Once you have your opponent’s skeleton argument, it is your responsibility to look at what they will be arguing. If you have researched properly, then it is likely you will have an opinion on the cases they have used or not used, and how they are using them. It is your job to get a feel for what they will be arguing against you so that when it comes to your turn to be on your feet, either before them or after them, you have prepared a rebuttal for their submissions. Make sure that you read their cases, compare it to the skeleton argument and come up with an idea of how they intend to use it. Once you are prepared to rebut their argument, then you’re ready to prepare for the performance of the moot.
The above is not an exclusive or exhaustive guide to the way in which a skeleton argument can be drafted. It is hoped that now you have a better understanding of how you might draft a skeleton argument for mooting, and can start the learning and practising process so that you can eventually decide what works for you and what doesn’t.
Have an interest in mooting? See the previous article, Mooting – A Ten Step Guide, and look out for the forthcoming article on Scripting in mooting.