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SKELETON ARGUMENTS: Kenyan Position On Skeleton Arguments.

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SKELETON ARGUMENTS

Definition of Skeleton Arguments

Skeleton arguments can be defined as an abbreviated note of an argument and in no way usurp any part or function of the oral argument presented in court.

They are an aide-memoire for convenience of reference before and during hearing.   In Kenya it is paramount to note that they are not a home-grown concept but rather borrowed from other jurisdictions such as the UK where the concept is thoroughly described in a sessional papers dubbed “skeleton arguments” written by Lords Justice Mummery, Mr. Justice Hunt and Edmund Lawson Q.C[1].

Scope of Skeleton Arguments

Format and content

  When drafting skeleton arguments, the heading should state the court in which the suit is in, the case number, and the names of the parties to the suit and the title of the ‘skeleton argument/submission on behalf of…’   It must also state:   The nature of the case generally, and the background facts in so far as they are relevant to the matter before the court   A concise statement of the argument(s), which the party wishes to make. These should both define and confine the areas of controversy.   Each argument should be followed by full references to the material to which the advocate will refer in support of it e.g. witness statement, statutes and or authorities.   In respect of each authority cited –ensure,   The proposition of law that the authority demonstrates or the relevance of the authority to that argument is captured;   The parts of the authority (identified by page or paragraph references) that support the proposition is brought out clearly.   The citation is necessary for a proper presentation of that argument.   Any other information the court will need or that which the advocate would expect to be taken down by the court during the hearing. This may include a list of persons who feature in the case or glossaries of technical terms.As a tool to assist the court and save time, it should also be as straight-forward and precise as possible without being detrimental to the argument. If the case that is being dealt with has the likelihood of bearing several skeleton arguments that will require submission, number them; this will not only help you keep track but also it will help the court keep track and most likely aid in ironing out the issues raised without repetition or recurrence of issues for the sake of litigation. Layout   Skeleton arguments follow the following format: –    Start with an introduction-   Under the introduction; Keep it brief and to the pointInclude a statement of purpose, which in essence is a statement born from your introduction giving your position as regards to the matter you are about to raise.Tell the judge what you want, why you want it and why he should give it to you. These three questions are essentially what sums up any submissions.      State the issuesIdentify the key issues that are in contentionIf the issues are several, label them If it is an appeal, briefly and precisely say how the issues were decided below each issueState why that was right or wrong, start swaying the judge to your position from here   State the factsState the facts precisely and conciselyNever misstate the facts for that will lead to a confused documentHighlight your crucial facts. Consult Microsoft word for aid i.e. bolden or underline them but keep it neatKeep the absolute essential facts and do not water down their merit with detailIn instances where the meaning or rather the facts cannot stand out without more detail being added on to them, put them in a separate schedule but still maintaining the precision and conciseness.Help the judge/magistrate identify crucial facts, which he needs to be aware of before the case starts, proceeds or is determined with finality.   State the law Remember the truth is we are all agents of the law, both you and the magistrate/judge, so do not be overwhelmed in stating the law and its statutory provisions. Remember the following:- Stating the law is key text Start with the strongest cases at the highest level. This you will be guided by the court to which you seek to here your case; i.e. if in the high court, start with court of appeal cases. They tend to be more persuasive and rather have a compelling and binding effect to the decisions of the high courtIdentify essential passages from the law  Make their stipulation as few as possible, remember this is not a commentaryIf its essential to include a short extract of the law so as to encapsulate the point you seek to make, put the quote of that extract in the body of the skeletonAdd photocopies, as annexures at the rear of the skeleton arguments with the highlighted key passages for ease of reference by your co counsel, the judge and also your clientThe photocopies should be well done, visible ink without littered work resembling almost the true copy of the original documentAlways endeavour from citing trite law, it is trite law to state trite law in your skeleton argumentsProvide a paginated, flagged bundle of documentAlways add an indexDo not include law or authority that is against you   Your argument/submissions Once you have stated the issues, the facts and the law in a precise concise form, marrying the issues to the facts and consolidating their relevance to the law is the next crucial stage. Writing submissions/ or rather your arguments is the most commonly referred to term in this stage. Under this stage apply the A.S.M.A.D rule: – Arrange the points in a recognizable orderSelect the most crucial and fundamental points.Make the strongest points first and build on that as you progressApply the law to the facts point by point. Do not enjoinder.Discard away all the weak points   Other key issues to observe while writing your arguments:- Be brief and straight to the pointSimplicity in concept, style and presentation is keyConcrete the points in a presentable mannerIf dealing with a complex issue/point, break it down into simpler manageable points, but not bread crumbsApply precise drafting skills, short sentences, short paragraphs.Create a persuasive document one that straight away captures the readerEnsure every sentence that is put down counts in swaying the judge to your side of the storyAvoid unnecessary verbosity, ask whether the sentences you have put in ready for a print out countFirst and foremost, deal with your own case first, the respond to your opponents case if at all any issues that are raised need your attention Make sure your case is clear, concrete and logical, let your opponents case make less senseAt the end of it all ensure that what amounts to your arguments/submissions makes sense in terms of fairness, justice, practicality, principle and policy.   Conclusion   The last nail to your written argument has to count, otherwise all will have been in vain; – Straight to the point conclude strongly as you started.Be specific and say what order it is that you are seeking, do not let the judge determine what you are asking, you have presented your case, the relevant law supporting it now let him determine whether what you are asking for has been supported enough for him/her to grantAlways ensure that the conclusion reflects what you captured in the introduction.Let the conclusion be not an icing on the cake but the long awaited dessert after a nice meal that you have just had, worthy of every single dime that you have spent.   Skeleton arguments in Kenya   Bearing in mind that they are a foreign concept, they are tailored with the intent of helping identify both for the parties and the court, those points, which are, and those points which aren’t in issue, and the nature of the argument in relation to those points which are in issue.   Its main purpose is to persuade the court to make a decision that the issues raised therein are weighty and an impartial referee should be engaged to help determine what is just and to what extent.   In essence they are used to woo the court that the matter in question is one that the courts input, deliberation and determination will be vital to attaining what is just and fair in law and in fact.
       

Legislation

Being that this is procedure we are dealing with, the disclaimer here is that there is no express provision providing for skeleton arguments/submissions in Kenya. From the civil procedure rules to the periodically published substantive rules of procedure and practice; The issue of skeleton arguments is more of like a customary practice that litigants seek to the court to entertain to have an issue that arises before and/or after the determination of the substantive suit.

The discretion here is purely at the court’s leave for they can ask for them or they can decide to follow procedure, at the end of the day what matters is expeditious settlement of issues raised in a matter and that’s where the issue of skeleton arguments/ submissions weighs in heavily. Its grounding in law is more of an expression of “may”

Criminal procedure code     

Under the criminal procedure Code section 65(1) indirectly allows for a form of submissions to be filed. It states that; “65 (1) 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 a people who do not intend to appear in person at the hearing, furthermore, section 65(3) prevents a person from addressing court during the hearing if he/she has filed such a statement in writing without leave of the court.   Civil Procedure act 2010   In the Civil procedure Act, sect. 97 mirrors the above situation in that it applies to appeals only, …a party who does not intend to appear in person at the hearing and once filed a party cannot address the court without leave of the court.   It would therefore be unwise for person to file such a document, as they would lose their audience with the court. They would be entirely at the mercy of the court.   There is no specific provision either under the criminal procedure or civil procedure that deals with filing of skeleton submissions in subordinate court.   However, through Gazette Notice No. 8167 of 20081 that came in on September 1, 2008, the Chief Justice Gicheru in exercise of the powers conferred to him by sect. 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 favor of expeditious disposal of cases pending before them.   In Jet link Express Limited vs. East African Safari Air Express Limited Civil Case 73 of 2007, as concerns the skeleton submissions counsel for the Defendant submitted that the court had powers under Order 50 rule 18 of the Civil Procedure Rules to direct the proceedings and that the skeleton submissions were simply intended to shorten the time taken in arguing the application and therefore the applicant was not going to suffer prejudice in any way.   Okwengu J. held that;   “…With regard to the skeleton submissions, it is true that there is no specific rule, which provides for the filing of skeleton arguments before the hearing of an application.  The learned judge was of the opinion that the filing of skeleton arguments is not an unacceptable procedure.  Indeed it is important to note that while there is no rule in our Civil Procedure Rules providing for the filing of written submissions the procedure has consistently gained root, with approval of the courts particularly in the Civil Courts where both parties are represented…   …The bottom line is that filing of skeleton arguments does not prejudice a party in any way.  It assists the court by clearly bringing into focus the issues and the parties’ submissions thereon.  This is desirable particularly in suits where numerous documents and affidavits have been filed and there is a risk of the real issues being clouded. Moreover as submitted by the defense counsel in the above case the court has powers under Order 50 Rule 18 of the Civil Procedure Rules to limit the time allowed for submissions by the parties or their advocate…   …It is therefor within the court’s discretion and in exercise of the powers under Order 50 Rule 18 of the Civil Procedure Rules, to order parties to file skeleton arguments so as to shorten the time taken in arguing the application before the court…    …In this case the judge also held that she could not by any stretch of imagination see any prejudice that is likely to be suffered by a party by the exercise of such a procedure…   To that effect therefore she could not find any good reason to strike out the skeleton submissions filed by the Plaintiff.  To the contrary she went ahead and ordered that the Plaintiff’s counsel shall also file skeleton arguments to facilitate the convenient hearing and speedy disposal of the application dated 15th February 2007…”           Conclusion   These directions are not court specific but they are substantive enough for that daunting soul that is a stickler for procedure. Whether subordinate appellant court or even tribunals.   Therefore, all courts in Kenya as it currently stands can ask for skeleton arguments/submissions to be filed at whatever juncture to facilitate the court to expeditiously dispose of cases and assist the court to reach a ruling, judgment or decision.

REFERNCES

  1. Criminal Procedure Code.
  2. Civil Procedure Act, Rules 2010.
  3. Gazette Notice No. 8167 Of 2008.
  4. Kenya Law Reports, www.eklr.com

[1] Skeleton arguments- a practitioner’s guide MICHEL KALLIPETIS Q.C. GERALDINE ANDREWS Q.C. August 2004

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THE 7 HABITS OF HIGHLY EFFECTIVE PEOPLE

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HABIT 1 : BE PROACTIVE
Your life doesn’t just “happen.” Whether you know it or not, it is carefully designed by you. The choices, after all, are yours. You choose happiness. You choose sadness. You choose decisiveness. You choose ambivalence. You choose success. You choose failure. You choose courage. You choose fear. Just remember that every moment, every situation, provides a new choice. And in doing so, it gives you a perfect opportunity to do things differently to produce more positive results.

Habit 1: Be Proactive is about taking responsibility for your life. You can’t keep blaming everything on your parents or grandparents. Proactive people recognize that they are “response-able.” They don’t blame genetics, circumstances, conditions, or conditioning for their behavior. They know they choose their behavior. Reactive people, on the other hand, are often affected by their physical environment. They find external sources to blame for their behavior. If the weather is good, they feel good. If it isn’t, it affects their attitude and performance, and they blame the weather. All of these external forces act as stimuli that we respond to. Between the stimulus and the response is your greatest power–you have the freedom to choose your response. One of the most important things you choose is what you say. Your language is a good indicator of how you see yourself. A proactive person uses proactive language–I can, I will, I prefer, etc. A reactive person uses reactive language–I can’t, I have to, if only. Reactive people believe they are not responsible for what they say and do–they have no choice.

Instead of reacting to or worrying about conditions over which they have little or no control, proactive people focus their time and energy on things they can control. The problems, challenges, and opportunities we face fall into two areas–Circle of Concern and Circle of Influence.

Proactive people focus their efforts on their Circle of Influence. They work on the things they can do something about: health, children, problems at work. Reactive people focus their efforts in the Circle of Concern–things over which they have little or no control: the national debt, terrorism, the weather. Gaining an awareness of the areas in which we expend our energies in is a giant step in becoming proactive.
HABIT 2: BEGIN WITH THE END IN MIND
So, what do you want to be when you grow up? That question may appear a little trite, but think about it for a moment. Are you–right now–who you want to be, what you dreamed you’d be, doing what you always wanted to do? Be honest. Sometimes people find themselves achieving victories that are empty–successes that have come at the expense of things that were far more valuable to them. If your ladder is not leaning against the right wall, every step you take gets you to the wrong place faster. 

Habit 2 is based on imagination–the ability to envision in your mind what you cannot at present see with your eyes. It is based on the principle that all things are created twice. There is a mental (first) creation, and a physical (second) creation. The physical creation follows the mental, just as a building follows a blueprint. If you don’t make a conscious effort to visualize who you are and what you want in life, then you empower other people and circumstances to shape you and your life by default. It’s about connecting again with your own uniqueness and then defining the personal, moral, and ethical guidelines within which you can most happily express and fulfill yourself. Begin with the End in Mind means to begin each day, task, or project with a clear vision of your desired direction and destination, and then continue by flexing your proactive muscles to make things happen. 

One of the best ways to incorporate Habit 2 into your life is to develop a Personal Mission Statement. It focuses on what you want to be and do. It is your plan for success. It reaffirms who you are, puts your goals in focus, and moves your ideas into the real world. Your mission statement makes you the leader of your own life. You create your own destiny and secure the future you envision.
HABIT 3: PUT FIRST THINGS FIRST
To live a more balanced existence, you have to recognize that not doing everything that comes along is okay. There’s no need to overextend yourself. All it takes is realizing that it’s all right to say no when necessary and then focus on your highest priorities. 

Habit 1 says, “You’re in charge. You’re the creator.” Being proactive is about choice. Habit 2 is the first, or mental, creation. Beginning with the End in Mind is about vision. Habit 3 is the second creation, the physical creation. This habit is where Habits 1 and 2 come together. It happens day in and day out, moment-by-moment. It deals with many of the questions addressed in the field of time management. But that’s not all it’s about. Habit 3 is about life management as well–your purpose, values, roles, and priorities. What are “first things?” First things are those things you, personally, find of most worth. If you put first things first, you are organizing and managing time and events according to the personal priorities you established in Habit 2
HABIT 4: THINK WIN-WIN
Think Win-Win isn’t about being nice, nor is it a quick-fix technique. It is a character-based code for human interaction and collaboration. 

Most of us learn to base our self-worth on comparisons and competition. We think about succeeding in terms of someone else failing–that is, if I win, you lose; or if you win, I lose. Life becomes a zero-sum game. There is only so much pie to go around, and if you get a big piece, there is less for me; it’s not fair, and I’m going to make sure you don’t get anymore. We all play the game, but how much fun is it really? 

Win-win sees life as a cooperative arena, not a competitive one. Win-win is a frame of mind and heart that constantly seeks mutual benefit in all human interactions. Win-win means agreements or solutions are mutually beneficial and satisfying. We both get to eat the pie, and it tastes pretty darn good! 

A person or organization that approaches conflicts with a win-win attitude possesses three vital character traits: Integrity: sticking with your true feelings, values, and commitmentsMaturity: expressing your ideas and feelings with courage and consideration for the ideas and feelings of othersAbundance Mentality: believing there is plenty for everyone Many people think in terms of either/or: either you’re nice or you’re tough. Win-win requires that you be both. It is a balancing act between courage and consideration. To go for win-win, you not only have to be empathic, but you also have to be confident. You not only have to be considerate and sensitive, you also have to be brave. To do that–to achieve that balance between courage and consideration–is the essence of real maturity and is fundamental to win-win.
HABIT 5: SEEK FIRST TO UNDERSTAND, THEN TO BE UNDERSTOOD
Communication is the most important skill in life. You spend years learning how to read and write, and years learning how to speak. But what about listening? What training have you had that enables you to listen so you really, deeply understand another human being? Probably none, right? 

If you’re like most people, you probably seek first to be understood; you want to get your point across. And in doing so, you may ignore the other person completely, pretend that you’re listening, selectively hear only certain parts of the conversation or attentively focus on only the words being said, but miss the meaning entirely. So why does this happen? Because most people listen with the intent to reply, not to understand. You listen to yourself as you prepare in your mind what you are going to say, the questions you are going to ask, etc. You filter everything you hear through your life experiences, your frame of reference. You check what you hear against your autobiography and see how it measures up. And consequently, you decide prematurely what the other person means before he/she finishes communicating. Do any of the following sound familiar? 

“Oh, I know just how you feel. I felt the same way.” “I had that same thing happen to me.” “Let me tell you what I did in a similar situation.” 

Because you so often listen autobiographically, you tend to respond in one of four ways: Evaluating: You judge and then either agree or disagree. Probing: You ask questions from your own frame of reference. Advising: You give counsel, advice, and solutions to problems. Interpreting: You analyze others’ motives and behaviors based on your own experiences.
You might be saying, “Hey, now wait a minute. I’m just trying to relate to the person by drawing on my own experiences. Is that so bad?” In some situations, autobiographical responses may be appropriate, such as when another person specifically asks for help from your point of view or when there is already a very high level of trust in the relationship.  
HABIT 6: SYNERGIZE
To put it simply, synergy means “two heads are better than one.” Synergize is the habit of creative cooperation. It is teamwork, open-mindedness, and the adventure of finding new solutions to old problems. But it doesn’t just happen on its own. It’s a process, and through that process, people bring all their personal experience and expertise to the table. Together, they can produce far better results that they could individually. Synergy lets us discover jointly things we are much less likely to discover by ourselves. It is the idea that the whole is greater than the sum of the parts. One plus one equals three, or six, or sixty–you name it.

When people begin to interact together genuinely, and they’re open to each other’s influence, they begin to gain new insight. The capability of inventing new approaches is increased exponentially because of differences. 

Valuing differences is what really drives synergy. Do you truly value the mental, emotional, and psychological differences among people? Or do you wish everyone would just agree with you so you could all get along? Many people mistake uniformity for unity; sameness for oneness. One word–boring! Differences should be seen as strengths, not weaknesses. They add zest to life.
HABIT 7: SHARPEN THE SAW
Sharpen the Saw means preserving and enhancing the greatest asset you have–you. It means having a balanced program for self-renewal in the four areas of your life: physical, social/emotional, mental, and spiritual. Here are some examples of activities: Physical: Beneficial eating, exercising, and resting Social/Emotional: Making social and meaningful connections with others Mental: Learning, reading, writing, and teaching Spiritual: Spending time in nature, expanding spiritual self through meditation, music, art, prayer, or service
As you renew yourself in each of the four areas, you create growth and change in your life. Sharpen the Saw keeps you fresh so you can continue to practice the other six habits. You increase your capacity to produce and handle the challenges around you. Without this renewal, the body becomes weak, the mind mechanical, the emotions raw, the spirit insensitive, and the person selfish. Not a pretty picture, is it? 

Feeling good doesn’t just happen. Living a life in balance means taking the necessary time to renew yourself. It’s all up to you. You can renew yourself through relaxation. Or you can totally burn yourself out by overdoing everything. You can pamper yourself mentally and spiritually. Or you can go through life oblivious to your well-being. You can experience vibrant energy. Or you can procrastinate and miss out on the benefits of good health and exercise. You can revitalize yourself and face a new day in peace and harmony. Or you can wake up in the morning full of apathy because your get-up-and-go has got-up-and-gone. Just remember that every day provides a new opportunity for renewal–a new opportunity to recharge yourself instead of hitting the wall. All it takes is the desire, knowledge, and skill.