Reading court judgments: wading through treacle

treacleIn recent years, English court judgments have become longer and longer. Pity the poor law student who is asked to read dozens of cases, each of which runs to thousands of words. Why is no-one in authority standing back from the problem, and recommending best practice? Where is the Ken Adams of judgment drafting, to chide and encourage the judiciary to make their work product clearer?

As with contract drafting, part of the problem is that the judgment drafter follows the herd. If Mrs Justice X wrote a 50 page judgment, I will do so. If Lord Justice Y, in his last judgment, spent four pages quoting extensively from Supreme Court case law on contract interpretation, so will I.

Many judges are conservative and appreciative of tradition. One of those traditions, in the English system, is the oral judgment – read out in court. Often, written judgments read like transcripts of an oral judgment, perhaps lightly edited with a few headings and paragraph numbers.

This approach may be sufficient for very short, extempore judgments. But for lengthy, considered decisions on matters of importance, the typical structure and style of judgments is very poor. They should be structured as written documents, not as oral narrative, and they should be designed so as to help the reader to understand them.

Of course, there are exceptions. A family court judge was recently praised for writing his judgment in a way that was designed to be as clear as possible to a child whose future was being decided. But part of the reason that judgment excited attention was because it was so rare. And the UK Supreme Court issues summaries of their judgments, designed for journalists and others to read.

Thinking about the reader should be at the heart of any writing. Perhaps in the insular world of judges, they think the main reader is other judges and barristers, who are used to a particular writing style. Perhaps they are selfishly focused on making their judgment bullet-proof on appeal to other judges. Instead, they should focus on a variety of readers – the lay parties, journalists, members of the public, and (particularly in contract cases) business people.

Lord Neuberger made a start at improving judgment drafting, eg by encouraging appeal judges to issue joint judgments. And his writing style was very clear. Leadership of this kind is important. A current, senior judge should take up the cause and push for reform.

Here are IP Draughts’ top four suggestions for improving judgments:

  1. Introduction. Start with a heading or sentence that describes the broad area of the case and the matters to be decided. Judges are not too bad at this; usually in the first few paragraphs there is a sentence that explains what the case is about. But it could be improved, and save the time of people like IP Draughts who regularly search through recent, published judgments on BAILII for decisions that interest him.
  2. Decision. Next, state what decision the judge has made. Typically, this appears at the end of each judgment, which in multi-judge cases may mean trawling through several sections. This could be done as an executive summary or in some other format.
  3. Prune. Edit, edit, edit. In a world of electronic documents, it’s understandable if the judge starts by cutting and pasting some sections of his judgment from the parties’ submissions or his earlier notes. But then go back to the resulting text and see where there are opportunities to cut down the length of the judgment. For example, if it’s not necessary to regurgitate settled case law, don’t do so – cross-refer (and include a link) to a summary in an earlier case, if this is thought necessary. And is it really necessary to have a “he said, she said” approach to describing the evidence? This didn’t happen so much in judgments a few generations ago. Then, part of the reason for conciseness was the high cost of printing. Nowadays, it should be a best-practice requirement to cut down the length where possible. After all, counsel is required to limit the length of their skeleton arguments, so why shouldn’t the judge be under a similar discipline?
  4. Attachments. In contract cases, attach the full contract to the judgment, rather than just quoting selectively from it. If necessary, commercially-sensitive parts of the contract can be redacted.

3 Comments

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3 responses to “Reading court judgments: wading through treacle

  1. Sometimes courts are more willing to impose constraints on litigants than on themselves, such as page limits on briefs. I especially like the practice of one US federal appellate court that requires a court-devised cover sheet atop every motion. The sheet has a box taking up the bottom third of the page. In the box must go a summary of the motion and the relied the movant seeks. Out of terror that the court will read no more than the cover page, movants compress and polish their boxed statements to a fare-thee-well. Would that courts had to do the same: BLUF = ‘bottom line up front’. I especially dislike (as a form of narcissism) the ‘murder mystery’ format of judicial decisions, whereby the ruling is revealed only at the end. It’s silly, because the reader will go to the end, read the ruling, and then maybe read the rest. (My personal practice is to read the ‘bottom line’ first (wherever located), then the footnotes, where the bodies are usually buried.

  2. Thanks! I wasn’t expecting such a reaction, when I wrote it.

  3. Beautiful piece sir, it never really occured to me that judges would write to impress other judges. Something I will remember for some time now.

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