Wednesday, 12 December 2012

The Origins of the Skeleton Argument and Marcus Aurelius

There was a time – probably about when I started in the law! – when advocacy in court was almost exclusively oral.  The other side often didn’t know the thrust of your argument until they heard it and cases turned often on the force and expression of argument and indeed pure oratory.  Then, largely with the Woolf Reforms and the Civil Procedure Rules in 1998, came the skeleton argument.  This is a document setting out the salient points of legal argument which has to be filed and exchanged with the other side before a trial or a lengthier hearing.  The advantage for justice of course is that no one (including the judge) is taken by surprise and also no one will win by oratorical flourish alone, although some say on the down side that some intellectual spark has been lost as a result to the law and specifically that the opportunity to turn a case around on the day on the evidence has been impaired.

In fact my researches are that the skeleton argument has a much longer history than I originally thought.  Unconnected with my legal career (I thought!) I recently did a talk for Suffolk Inter-faith (aka SIFRE) on Marcus Aurelius (121 -180 AD).  Marcus Aurelius is best known as a Roman Emperor and philosopher but he was also a lawyer and judge.  On one occasion he was about to judge a dispute over the Shrines and privileges claimed by the city of Smyrna (located now in the region of Izmir in modern Turkey).  Shrines and the rights attached to them were very valuable in Roman times.  The lawyer who was to argue the case, called Polemon, was renowned for his skill and so there was no doubt that the case would be pleaded well before Marcus.  Marcus was confident that he would hear all the arguments properly put and tested and therefore he would make the right decision.  However on his journey to the trial, unfortunately Polemon died.  When inferior advocates turned up to the trial, Marcus turned to them and said: ‘Was not Polemon appointed your advocate in this contest?’ The answer came back yes.  ‘Perhaps then’, said Marcus, ‘he had composed some speech on behalf of your rights, as is likely, as he was about to contend before me some important issues’.  Marcus adjourned the case for Polmeon’s speech (i.e. skeleton argument) to be found and brought before him.  He then judged the case and found in favour of Smyrna. 

The people of Smyrna later claimed that Polemon had come to life for their sake.  And in the case of Polemon – excuse the poor joke – the argument could be said to be skeleton in more ways than one!

Below is a photograph of my painting of Marcus Aurelius which I presented at my talk for SIFRE as well.