Chapter 9 Legal Writing

Addressing the judge includes legal writing.

The golden rule is that LESS IS MORE.

Legal writing is where you offer a formal pleading or argument for the Judge.

It is not casual prose for a Sunday newspaper.

You may ask ‘why limits?'

Well, there are lawyers out there who think they can show off how clever they are by writing caboodles - yep, oodles and caboodles - real tomes - heavy lengthy impenetrable verbiage, cross-referencing lists, footnotes, and obscure case precedents - an impenetrable cross between the writings of Karl Marx and an amended statutory instrument, and with the vibrancy of an instructions manual for a car alarm, all neatly hole-punched and presented cheerily in a file.

It is madly thought by some the more you write, and the more intricately, the more right you must be.

Stop that now!

You are there to help the judge, not kill him through mental anguish occasioned by reading the unreadable and irrelevant.

Keep it short, and to the point.

If you really know the point you wish to make, get to the point - fast.

Legal writing should be like a cavalry charge - swift, full, impressive, with no messing round, it should cover the ground, all of it, and do the job, fast. Legal writing is not the military equivalent of the trenches of WW1 - endless, uncertain, and bogged down.

There should be nothing complicated about court. The whole point of you being involved as an advocate is to make things simple. What started out as seemingly complicated to the parties ought to have become clearer through the legal process. You are paid to explain to the judge where the problem is, and why you win. If you cannot explain the problem simply, then you do not understand it.

Which will not be read - it will merely be skimmed - and you will therefore have failed to persuade, which it is your job to do, and every legal writing is an opportunity to do it.

So you have wasted your time writing - and you have weakened your credibility.

So please, if you put anything in writing, make it count - and to do that, KEEP TO THE POINT.

And remember, legal writing should focus on the solution, not how big the problem is. The judge needs to be helped to shore, not drowned in paper. Some discussion is often necessary, but as little as possible is best - the procedural history, the facts, the narrative of the arguments, keep these to the ‘essentials'. This is one of the hallmarks of an able lawyer - being able to distil large amounts of material to what is needed, and being right about what is irrelevant.

Let's talk about the most widespread legal writing, the SKELETON ARGUMENT.

Judges today often require them, usually in appeals and on points of law.

And let’s be excited about this.

If someone tells you a skeleton is a boring formality, they are wrong - skeletons can be a vital part of advocacy in a modern trial. They can put the judge on your side - or against you - before the case even begins.

They are not a formal pleading. Instead, they are an opportunity to put your case in a good light and your opponent's in a weak one.

Different people say different things about skeletons. There is no right or wrong way to prepare them. What follows therefore is my own view.

A skeleton should be a SHORT document which lays out the HEART of the argument with references to the relevant law.

There is an art to these documents.

Both in how to prepare them and in how to use them.

A skeleton should whet the appetite - it should be a teaser.

Its purpose is to get the judge provisionally on your side.

What I suggest is that it should not be a treatise on every aspect of the argument.

Ideally, it should not provide the judge with the opportunity to decide the issue on the strength of the skeleton. It should show the area where the argument is, and what you suggest is the answer, without being an exhaustive analysis on which the judge is offered the opportunity to disagree in the quiet of his room without you there, unable to influence his mind as it closes against you.

Think about it: treatises may not be read fully. Moreover, what is there to say at the hearing if it has all been said in the treatise? And pointedly, you have no control over the judge while he is reading the skeleton before the hearing. If you have set out in the skeleton to persuade the judge, and the judge has been unpersuaded, you’ve lost, before you have opened your mouth - and yet it is when you open your mouth you should be at your most persuasive.

So don't set out in a skeleton to persuade. It should whet the appetite.

Hold something back.

That ‘something' is usually ‘you' - when you lock eyes with His Honour, and bring your argument to life.

The skeleton should provide a short summary of the facts as you would wish the court to find them, and a short summary of the law as you would suggest is how it stands, with clear references to where the law can be found, and briefly how you suggest the facts apply to the law.

No more than that.

Facts as you suggest they are,

Law as you suggest is relevant,

Then how you suggest the facts fit the law.

Brevity, brevity, brevity.

The detail of the argument comes later, when you open your mouth in court.

Most important, YOUR SKELETON SHOULD START WITH EXACTLY WHAT YOU WANT AND WHY.

State clearly, with deference, the outcome you seek - this should be the first paragraph.

There is a school supporting long skeletons. Some people suggest the skeleton should contain every single aspect of the argument. It is fair to say this can work. It can be particularly effective in a Magistrates Court where there is a lay bench who may be impressed - and even a little intimidated - by a full argument, so that, yes, this can happen, they believe you must be right if you have written so much.

However, on balance, my own view is that a long document risks the court having made its mind up before you get to argue the point. Or worse, it is not fully read, and still, the judge has made up his mind!

And as I was saying earlier, it encourages long legal writing in general, which is unattractive.

So, if you are going to write a long one, make sure you have the ‘right audience' for it - remembering, most tribunals will thank you for brevity.

In time you will find your own style. I suggest you start short, and get longer if that suits you better.

So what do you do with the skeleton at court?

How do you use it on your feet?

Use it as your map.

Don’t read from it.

But do quote from it.

As I said, but it bears repeating, begin your argument by capturing the bulls-eye point in a neat opening sentence, making clear what you seek and why you should win.

Then identify what you say are the facts, pointing out where you have mentioned them in the skeleton.

Now develop where you say there is an argument with your opponent on the facts, and why you should win it.

Explain how you suggest the law fits the facts as you suggest they are. Identify where the arguments lie, and explain why your argument beats the other side, reminding the judge of what is in the skeleton.

Take your time - though don’t ponderously dawdle - keep it moving - watch the pen.

Refer back to your skeleton time and again, quoting from it, and then delving into detailed argument. Anchor your judge to the skeleton, and then take him on a tour of the legal battlefield, bringing him often back to where you say the best vantage point is for considering the argument, which ought always to be in the skeleton. In this way, if you take him to where you say the best vantage point lies, you have an attractive opportunity to show him the legal battlefield from your point of view.

Think of a skeleton as a pair of binoculars with which Wellington surveyed the battlefield of Waterloo. Lend the judge your binoculars. Of themselves, they will not win the battle, but they can help.

Come to think of it, Wellington had a telescope - binoculars had not yet been invented in 1815. But you get the point.