Diary of an ex-judge: Art of Judgment Writing (Part III)

This is the third and the last part in a series on the‘Art of Judgment Writing’ written for younger members of the Bar aspiring to be judges.

In the first two parts, we examined various facets of judgment writing such as: using an engaging introduction as a springboard for a well written judgment, explaining the facts clearly and succinctly, and, finally, penning-down the reasons for the decision - with greater clarity and precision.

We also tried looking at some international best practices of judgment writing, standing on the shoulders of some of the giants of clear legal writing.

In this part, we draw the curtain on the series by looking at some frequently misused words/phrases that one should avoid in order to make our judgments - not only more accessible and readable - but also more fun to read. We finally put a wrap on the series with some fun and games by looking at some examples of great ‘verse-atility’ in judgment writing.

You would recall - we ended the last part with some very fine specimens of judicial writing. Contrast those with the following judgment written by a High Court which was remanded back for re-writing of the judgment by the Supreme Court.

Let’s show you why. This is how it read:

This helps absolutely no one, including the judges writing the judgment. I would also say that the malaise does not only relate to expression of thought but of thought itself.

You’d have noticed that much of the advice in this article, or rather this series, has been as much about common sense/logic, as writing. Good legal writing is mostly about good logical thinking. Bryan A. Garner is right when he says, “it’s impossible to separate good writing from clear thinking”.

One of the best writers of this century, George Orwell, in his inimitable style, demonstrates the vicious cycle of sloppy thoughts and sloppier writing. In his book, Politics and the English Language, he writes: “A man may take to drink because he feels himself to be a failure, and then fail all the more completely because he drinks. It is rather the same thing that is happening to the English language. It becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts”.

Good thinking is, therefore, very important. What’s also important is letting the meaning choose the words and not the other way around. One must remember that words are only the means to an end.

The ultimate end being effective communication of information (which, hopefully, is useful information). We go awry when we let the words choose the meaning, rather than letting the meaning choose the words. Here’s what I mean:

“And in the outset we may as well be frank enough to confess, and, indeed, in view of the seriousness of the consequences which upon fuller reflection we find would inevitably result to municipalities in the matter of street improvements from the conclusion reached and announced in the former opinion, we are pleased to declare that the arguments upon rehearing have convinced us that the decision upon the ultimate question involved here formerly rendered by this court, even if not faulty in its reasoning from the premises announced or wholly erroneous in conclusions as to some of the questions incidentally arising and necessarily legitimate subjects of discussion in the decision of the main proposition, is, at any rate, one which may, under the peculiar circumstances of this case, the more justly and at the same time, upon reasons of equal cogency, be superseded by a conclusion whose effect cannot be to disturb the integrity of the long and well-established system for the improvement of streets in the incorporated cities and towns of California not governed by freeholders’ charters.”

When we unpack this agonisingly long 178-word sentence, we understand that all that the bench wanted to say was:“We made a mistake last time.”¹

This problem of letting the tail wag the dog (letting words choose the meaning) is not particular to judgment writing; even legislation suffers from this. Take, for instance, the Code of Federal Regulations, where one of the sections provides:

“It is not necessary that an investment adviser’s compensation be paid directly by the person receiving investment advisory services, but only that the investment adviser receive compensation from some source for his or services”.

Nearly two-thirds of the sentence can be cut without any loss in meaning whatsoever, but with enhanced speed, clarity, and impact by rephrasing it as: “Although the investment adviser must be paid, the source of the payment does not matter.”

The shortest distance between two points is a straight line; writing simple and straight

Compelled by vocation and the quest to innovate we often find ourselves losing friends over-use of complicated words at family functions and parties.

The problem merits much more concern when jargon enters the language of the Courts; Courts which deal with a population which is structurally incapable of comprehending the language even in its simplest forms. This is more than a case of mere lack of clarity; I argue - that this amounts to monopolising the ability to understand the law and keeping it confined to a select few.

Some words phrases can be easily discarded as superfluous in the interest of ease of understanding.

A few examples²: Hereinbefore, aforementioned, hereinafter, sub-judice, dehors, Constitutional nodus, inter-alia, with regard to, gravamen, dramatis personae, sui generis, arguendo, be that as it may or the infamous - needless to state or its even more uglier cousin – it goes without saying. It is a no brainer that if it actually goes without saying – it should go without saying.

We’ve put together a few more words/phrases which should be avoided and substituted with, as far as may be, simpler alternatives that could be used in their place:

These words should be avoided and an easier word used whenever possible.

Some general Dos and Don’ts of Judgment Writing:

• Each judge has an individual manner of expression. Judgments should be expressed in a language and style which is natural to the judgment writer.

• Do not conflate style with substance. Substance is always more important than form.

• Be conscious of the effect of the writing on the concerned persons. Remember your audience, always.

• Be wary of broad generalisations based on personal experiences/world-view and things not before the court in the form of hard evidence;

• Resist the temptation to go beyond the issue before the court;

• Be temperate; think twice before recording adverse remarks.

• Distinguish each case law relied upon by the parties.

• Don’t quote from case laws extensively (Law Reports have already done it)

• Talk in active voice as far as may be and not passive voice.

• Avoid double negatives (“I cannot say that I don't disagree with you.” Grucho Marx)

• Use maps, pictures, lists, clear headings.

Verse-atality in judgement writing

Writing and reading judgments can also be fun. In a case involving something as dry as a revenue matter, Justice Goldberg went on to start the judgement with some beautiful verse:

“Some farmers from Gaines had a plan.

It amounted to quite a big scam.

But the payments for cotton

began to smell rotten.

It was a mugging of poor Uncle Sam(US).

The ASCS and its crew

uncovered this fraudulent stew.

After quite a few hearings,

the end is now nearing—

It awaits our judicial review.”

- Judge Goldberg

In yet another interesting case, the counsel went on to file written submissions ‘in rhyme’; but what took the cake was the fact that the judge also rose to the challenge and wrote the decision also in rhyme. He ruled:

“Counsel having had his say, Anders, California

Would seem to say: “New trial, no way.”

Forthright counsel I commend

For bringing this appeal to end.

He has served his client well:

A worthless issue would not sell.

Dropping his quixotic quest

Serves his client's interests best.

To press a cause of rank frivolity

Would not fill this court with jollity.

Though counsel was a courtroom terror,

He could not seed the case with error;

So nothing now could be much grander

Than witnessing his posttrial candor.

Lawyers tend to look facetious,

Pressing issues merely specious

Frank candor sure beats false bravado,

Defending Claudio Rosado.

This is how I see the moral:

Instead of never-ending quarrel,

A broken record, crying “foul”,

It's sometimes best to throw the towel.

Thus, before the bar of court

This defendant must report.

He shall have to do his time,For punishment must fit the crime.

And that will have to end this rhyme.”

These examples really stand out not only for their creativity and originality, but also the pithiness with which they make a point. But one has to remember that very few people can rhyme with the grace as the gentlemen above have done.

Also, while attempting something like this there’s always a risk of ending up trivializing or disrespecting someone’s life, because that is what one essentially talks about in a judgment.

Therefore, the broad advice would be to steer clear from something like this. If the urge to wax poetic is irrepressible, a few lines capturing the essence of the judgment may be written, after the judgment is over, but writing the whole judgment in verse alone may not be the best idea.

Conclusion

“Not all legal writers have the stature, the skill or the ability of Denning LJ”³. Everyone has an individual manner of expressing their opinion in a given matter. Judgments should be expressed in a language and style which suits the decision-maker and reflects their, personal understanding of the facts and the law.⁴

The same may not be flawless and lucid to the readers at once - but as long as the same adequately accounts for facts and circumstances of the matter, it is good enough. The substance is the focus and not necessarily the style - which could, of course, adorn the substance and make it more palatable to a common person.

Write only what you cannot afford to not state in reaching your decision. A common charge against cryptic judgements is the difficulty to scrutinize them even by the most adept readers, including the Courts. One could be clearly wrong but one needs to be wrong clearly to afford proper scrutiny of their judgements.⁵

Further, as they say, “Good judgments are never written; they are always ‘re-written’, a meticulous review of the judgement is necessary before the same is handed out. At the end of a painstaking round of hearings and a formidable pile of documents, it is only human to make a mistake. But there is nothing that a fresh pair of eyes cannot spot or improve.

While finalizing, ask yourself: how easily would the judgement be understood by a literate non-lawyer and would I comfortable reading this out aloud to a non-legal friend?

As long as the communication gap is plugged, the job is done. The aspiring Lord Denning in you can then, finally take a bow! Hope this toolkit comes in handy every time you embark on the journey that is judgement writing.

The author is a Partner at L&L Partners and a former judge. The views of the author are personal.

[1] Bryan A. Garner, Legal Writing in Plain English: A Text with Exercises 3 (2001).

[2] Ross Guberman, Point Taken: How to Write Like the World's Best Judges, 2015, Page 197-198.

[3] Dessau, Linda and Tom Wodak, 'Seven Steps to Clearer Judgment Writing', Ruth Sheard (ed), A Matter of Judgment: Judicial Decision-Making and Judgment Writing, Education Monograph, (2003), Accessed on 18^th January, 2019.

[4] Ibid.

[5] HLA Hart commenting on Oliver Wendell Homes, as found in H.L.A. Hart By Matthew H. Kramer, John Wiley & Sons. Copyright. Page 14.