Tagged: submissions

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More good advice from a philosopher

When you’re reading or skimming argumentative essays… here is a quick trick that may save you much time and effort, especially in this age of simple searching by computer: look for “surely” in the document, and check each occurrence. Not always, not even most of the time, but often the word “surely” is as good as a blinking light locating a weak point in the argument.

Daniel C. Dennett: Intuition Pumps and Other Tools for Thinking, Allen Lane 2013, p.53.


For ‘argumentative essays’ read ‘skeleton arguments and written submissions.’ And for ‘surely’ read also ‘obviously,’ ‘plainly,’ ‘manifestly,’ ‘clearly’ or ‘self-evidently.’

There are two uses for this technique, for a lawyer. One is to sniff out corners of the other side’s argument that they’re feeling a bit wobbly about, or don’t quite know how to explain or justify properly – so that you can direct your attack at those weak points.

The other – perhaps more importantly – is to check your own argument for weaknesses, and add reinforcement where it’s needed. If you’ve said ‘surely blah blah..,’ ‘self-evidently wurra wurra..’ etc. where in fact it’s not sure or self-evident from what else you’ve written, you need to explain why ‘blah blah’ or ‘wurra wurra’ are true.



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Don’t make the reader clamber over a pile of scaffolding

1.  In this skeleton argument, references to pages of the core bundle will be in square brackets, in bold print, with the prefix “core.” References to numbered pages of the supplementary bundle will be in bold square brackets with the prefix “supp.”

2.  This is an appeal from the decision of the Watford Employment Tribunal (“the ET”) to uphold a complaint of unfair dismissal by the Respondent (the Claimant below, and hereafter referred to as “the Claimant”) against the  Appellant Council (the Respondent in the ET claim, and hereafter referred to as “the Council.”)

3.  On 7 April 2012, the EAT (Baggins J) ordered that the appeal be set down for a full hearing [core/1-2].

Skeleton arguments and written submissions often begin with stuff like this: information about how the document should be read, the procedural history of the case and so on. It makes me think of scaffolding because it was functional once, but by the time the building’s finished it should all have been tidied away out of sight.

It’s true, no doubt, that the average judge starting to read a skeleton argument or set of written submissions isn’t expecting much in the way of laugh-out-loud moments, or goose-pimple thrills. But all the same: it’s safe to assume that your judge is clever, busy, and in a hurry. These sorts of introductory paragraphs are a bad use of the limited time and attention she has to spend on your case. They’re an especially bad use of the first few moments of it.

Paragraph 1 tells the judge something she can be expected to guess without difficulty. She’s been given a bundle called ‘core bundle,’ and another bundle called ‘supplementary bundle.’ If you put a reference that goes [core 48] in your skeleton, what’s she likely to think you mean? Is she going to start hunting around for apple cores, or is she going to reach for the core bundle and turn to page 48?

Paragraph 2 starts by repeating information contained in the notice of appeal. Why? Then it tells the judge how you’re going to refer to the parties. But if the claim was an unfair dismissal claim brought against a local authority, the expressions ‘the Claimant’ and ‘the Council’ are perfectly clear without explanation.

Paragraph 3 tells the judge something else she can be taken to know. You’re all there, aren’t you? So someone must have let the appeal through to a full hearing; and the order will be in the bundle.

So get on with it. Say something meaningful in your first paragraph that helps the court get a grip on what the case is all about – and, ideally, does so in a way that improves your chances of winning.

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Chronologies: Inside or outside?

A lot of people put chronologies inside other documents, most commonly written submissions. This is not a terrible sin, but it’s normally better to keep them as a separate document.

There are three main reasons for this. First, chronologies tend to be long – at least a page and often more. So they bulk out a written submission and interrupt its flow. This does not help the submission do its job, which is to persuade the tribunal.

Second, a chronology will often be used widely during a case, not just when looking at written submissions. For example, it can be a useful tool when cross-examining or help the tribunal make sense of a confusing sequence of events in a witness evidence. There are many cases where a good chronology will be used throughout the hearing. This is slightly easier if it is a separate document, and it means you don’t have to complete your written submissions before the case starts.

Third, ideally a chronology should be agreed. A lot of parties and representatives will be reluctant to agree to part of your written submissions, even if the substance isn’t controversial.

This does not mean, of course, that a written submission should never contain a chronology. In particular, a short, focused chronology within the submission can often be helpful when you are making a comment about the sequence of events or their timing. Say, for example, you want the tribunal to draw inferences from the fact the Respondent’s written warnings always occurred a few days after the Claimant made protected disclosures. Setting out, in a tabular chronology within your submissions, all the protected disclosures and all the written warnings can effectively make that point, in a way that can’t easily be replicated in prose.

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The dangers of reading the tribunal

One of the things you do in a tribunal hearing is read how you’re coming over to the panel. Then you can adjust your approach accordingly. If they are with you on an issue, you may want to quit while you’re ahead. If they’re not you may want to redouble your efforts (or move onto a new point). The ideal is to spend the minimum time on matters where the tribunal is already convinced (or cannot be convinced) to focus on the areas where you may change their minds.

The problem with this is that it is easy to misread the tribunal.

The most damaging result of this is that you move briskly over an area – thinking that the tribunal agrees with you – when you should be dealing with it in detail. This leads to the horrible sinking feeling when you later realise that the tribunal was not convinced at all.

Of course, it is equally possible to speak on length on something that the tribunal is already convinced of. But this tends to be less damaging. This is partly because over-convincing someone of something is normally better than failing to to convince them at all. It is also because the tribunal is more likely to step in to move you on from a point they agree with than to ask you to go back to a point that they disagree with.

There is no absolute solution to this problem. You could simply deal with every point in exhaustive detail, regardless of your reading of the tribunal. But this is likely to do do more harm than good. A concise, punchy submission focused on the areas that the tribunal is in doubt, will be more convincing than anything approaching exhaustiveness.

Like many areas of advocacy, the only thing to do is to be aware of the potential problem and aim at a happy medium. Remember that, in the absence of a clear steer, it is hard to be certain what the tribunal is thinking. Be prepared to err on the side of caution, particularly on an important point. But try not to over-correct and risk boring the tribunal, losing momentum and obscuring your best points.

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“Legal submissions shall be in writing…”

A standard instruction that turns up from time to time in case management orders goes:

Legal submissions (if any) shall be in writing and accompanied by a copy of any Law Report(s) referred to. Three copies will be required by the Tribunal and should be brought to the hearing.

There are two problems with this: (i) it assumes you know what legal submissions and Law Reports are, despite the fact that many claimants (and quite a lot of respondents) will be representing themselves with no legal advice; and (ii) it’s silly.

What it means

‘Legal submissions’ are arguments about the law and its consequences. So if you say ‘my employer threw a waste-paper basket at me,’ that’s an assertion of fact (true or not). It’s not a legal submission, and it belongs in your witness statement. But if you say, ‘throwing a waste-paper basket at me was a breach of the implied term of trust and confidence in my contract of employment, and that was a fundamental breach entitling me to resign without notice,’ that’s a legal submission. You don’t need to put it in your witness statement, but you do need to say it at the end of the hearing – after everyone’s given their evidence – when you are telling the tribunal why you should win. Telling the tribunal why you should win is called ‘making submissions,’ and the part of that that is about what the law says and why it helps you is ‘legal submissions.’

Law reports are official printed accounts of cases that have been decided in the past, in this context mainly by the Employment Appeal Tribunal, the Court of Appeal or the House of Lords (or Supreme Court as it now is). For instance, if your employer says you didn’t resign because he threw a waste-paper basket at you but because you’d found another job – so it wasn’t constructive dismissal – you may want to remind the tribunal of Nottinghamshire County Council v Meikle [2005] ICR 1. That’s a case in which the Court of Appeal said that a fundamental breach doesn’t have to be the only cause of the resignation for the resignation to count as constructive dismissal, so it would help you to argue your case in this situation.

So the instruction quoted means that if you want to say anything about the law, you must say it in writing, and you must bring three copies of what you want to say to the tribunal; and if you want to rely on any law reports, you must attach copies.

Why it’s silly

It’s silly, because the tribunal doesn’t actually mean it. The tribunal can’t properly stop you making oral submissions on the law if you need to, and they won’t try. It’s true that if you want to make a legal point that is at all complicated, it’s a good idea to make it in writing. But often you won’t. Many cases will run from beginning to end without any significant dispute about what the relevant law is: the dispute is about who did what, when and why, and whether it was fair. But minor questions of law may well come up unexpectedly, and both parties will certainly be allowed to say their piece on them.

The advice to bring 3 copies is unhelpful, too, because if you do decide to do some written submissions, you will actually need to take 5 copies with you: 3 for the tribunal, one for you, and one for the other side.

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Dogs that don’t bark

Inspector Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Inspector Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

People are often worried about missing evidence. For example, a claimant knows that most internal communication between his employer’s managers is conducted by email. But, during the disclosure process, no relevant emails are disclosed and their existence is denied.

One approach is to try to persuade the tribunal to allow you to dig out the information. Theoretically, a computer expert could be instructed to search their system and recover relevant evidence. This, however, will be expensive and extremely disruptive. It will almost never be considered proportionate by the tribunal and in the vast majority of cases it is futile to even try.

In 999 cases of 1000 the appropriate course is simply to cross-examine and make submissions on the missing evidence. You can point out just how implausible it is that no emails were sent. If it really is terribly unlikely, and you can convince the tribunal of that, they are likely to draw very negative conclusions about the Respondent’s credibility and conduct.

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Referring to numbers

It is often useful to number issues or similar topics. It provides structure and organisation. For example, in a written submission it is common to see something like:


  1. Was Mr Smith an employee of Widget Makers Incorporated?
  2. Did the letter sent by Mr Jones to Mr Smith comply with the requirements of a Step 1 letter under the Standard Dismissal and Disciplinary Procedure?
  3. Did the decision to dismiss Mr Smith fall within the range of reasonable responses?
  4. Should Mr Smith’s compensatory award be reduced to reflect his contribution to his dismissal?

But always remember that the point of doing this is to make things easier, not to introduce a new source of potential confusion.

If your written submissions list a set of issues on page 2, then on page 11 you refer to ‘Issue 3’, there is a good chance that the person reading it will not remember what that issue is. They will have stop reading, break their train of thought, and flip back to page 2. Or they may press on, uncertain of what you are getting at, but hoping that it will become clear from what comes next. Neither of these possibilities is a good thing.

The solution is to refer to the nature of the issue as well as the number. For example:

Issue 3: Range of reasonable responses

Submissions arguing that dismissal fell outside the range of reasonable responses.

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Submission (Part 2)

A number of people have commented or emailed about “Do not submit” which recommended that advocates eliminate “I submit” from their vocabulary when addressing the tribunal.

Since the consensus is against me it might be worth setting out in more detail why I dislike it.

Firstly, it offends against the signal to noise principle. Submissions should contain as high a percentage of substance as possible. Anything that does not contribute to your argument should be removed. “I submit” adds nothing meaningful; the tribunal knows you are making submissions.

Secondly, there is a real risk of it becoming an annoying tick. Any phrase repeated often is likely to grate. Once you start saying “I submit” it is hard to know when to stop. After all, everything you say is a submission. Many people find themselves repeating in almost every paragraph they write or every minute as they speak. This has much the same impact as fingernails on a blackboard.

Finally, it puts distance between you and your submissions. It is not as bad as saying “My client’s instructions are to submit”, but the affect is similar. By saying “I submit” you are emphasising your formal role. This may be more comfortable for you the advocate, but it make it harder to communicate conviction.

Abigail makes the good point that “I submit” can be used to show respect for the tribunal. There are certainly moments when this is useful. Say that the tribunal is strongly against you on a point and the dialogue is beginning to descend into a wrangle, rather than a discussion. Using “I submit” might emphasise the formal roles and defuse the confrontation. In general, however, this should not be necessary. You must respect the tribunal, but this means begin polite to them and keeping in mind their judicial role (meaning that you recognise that they are in charge of the hearing). Formal phrases, be they “I submit” or “Respectfully…” do not add anything to this.

Does anyone else have any views?

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Do not submit

Many lawyers write and say things like:

  • In my submission, the employer failed to follow a fair procedure
  • This, I submit, was an act of direct sex discrimination
  • I am going to submit that this claim should be allowed in out of time.

All of these examples can be improved easily, by removing any reference to submissions. For example:

  • The employer failed to follow a fair procedure
  • This was an act of direct sex discrimination
  • This claim should be allowed in out of time.

The second examples have the advantage of being shorter, clearer and more direct. This makes them more persuasive.

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Tombstone Ltd v Raja & Heals

The Court of Appeal has commented on the proper use of skeleton arguments in Tombstone Ltd v Raja & Heals.

Although the case had nothing to do with employment law, the comments are relevant to skeleton arguments generally – in the EAT as well as the Court of Appeal.

The full comments of the Court are set out below. In summary, they warn against excessive length and make clear that skeleton arguments are intended as an aid to oral advocacy.

This is not straightforward. It is clear that in Tombstone itself the skeleton was too long. It is also true that a concise and focused argument will be more persuasive than a verbose one.

On the other hand, taking the guidance in Tombstone too much to heart is probably a mistake. In our experience, ‘skeleton’ arguments do now almost invariably amount to full written submissions capable of standing alone. Whether that’s a good thing is open to debate; but the reality is that the members of appellate courts will normally have read the skeletons and formed at least a provisional view before the hearing begins. That means you have to do a lot of the work of persuading them in your skeleton – especially as the chances are your opponent will have.

If some judges will bark at you for producing an excessively fleshy skeleton, others will raise an eyebrow if you try to say anything in oral submissions that isn’t covered in your skeleton – or, worse, make up their minds on the written material and then scarcely let you get a word in edgeways once you’re on your feet.

The key is to understand that a well written skeleton can make your whole argument, without becoming over long.

Lord Justice Mummery said:

122. We end this judgment with a criticism of the excessive length and complexity of Tombstone’s skeleton argument. It has 110 pages of text plus 64 pages of Appendices. Although its authors set out to assist the court, as well as the client, by a very thorough presentation of Tombstone’s case, it is sensible to set reasonable limits to its length.

123. Mr Onslow described it “as an extremely long document” for a case that, while unusual, was not unduly complex. The appeal was from a judgment of modest length (27 pages). It was very hard, he said, to see what justified such voluminous arguments. Most of the legal issues have been settled by existing authority. No primary findings of fact are challenged on the appeal. He added that, from Healys’ perspective, this had added to the length of their skeleton argument (56 pages), which they had tried to keep as short as possible. It had also added considerably to the cost and length of the appeal.

124. The length of Tombstone’s skeleton did not assist the court. In fact, it tended to detract from Tombstone’s case, which was accurately and far more succinctly stated by Mr Onslow in his written and oral responses to it. His team adopted the technique of briefly stating the points taken by Tombstone and then concisely commenting on them.

125. Practitioners who ignore practice directions on skeleton arguments (see CPR 52PD paras 5.10 “Each point should be stated as concisely as the nature of the case allows”) and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions. The skeleton argument procedure was introduced to assist the court, as well as the parties, by improving preparations for, and the efficiency of, adversarial oral hearings, which remain central to this court’s public role.

126. We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.

127. Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the growth in written advocacy (written opening and closing submissions and “speaking notes”, as well as skeleton arguments) has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs. They are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing, reading and writing time. As has happened in this case, the opponent’s skeleton argument becomes longer and the judgment reflecting the lengthy written submissions tends to be longer than is really necessary to explain to the parties why they have won or lost an appeal.

128. The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them “in our own time” after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court.