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Last week, we looked at the recent research undertaken in the US on briefs presented to the Supreme Court and the lessons that all lawyers can learn from them ('How to write legal documents that work: tips from top judges').
In essence, the clearer you are in your writing and presentation of it the more you are likely to win.
Today, we are back on the drizzly and cold side of the Atlantic and are looking at another aspect of legal writing: judgments.
These judicial pronouncements are a key component of the machinery of the common law.
So are they a well-oiled machine, or do they clack, clang and clatter with great confidence but, ultimately, those who are trying to read them haven’t got a clue as to what’s going on?
Let’s look at the speech given on this subject by the (hip hop listening) President of the Supreme Court, Lord Neuberger of Abbotsbury.
Although it was given a few years ago, there’s still plenty in it which is of relevance to all lawyers.
He believes that, even though judges are able to deal with ‘rubbish in/ rubbish out’, this is no excuse for rubbish drafting:
the fact that legal professionals are trained to read Judgments is no excuse for poor Judgment-writing. It is like suggesting that statutes don’t need to be well-drafted because lawyers and judges are adept at interpreting them.
He adds that:
Judgments must speak as clearly as possible to the public. This is not to suggest that Judgments could, or even should, aim to be bestsellers.
Chance would be a fine thing.
So why are clear judgments a necessity as opposed to a ‘nice-to-have’?
Lord Neuberger gives two solid reasons. Firstly, everybody has a right to a fair trial:
A clearly reasoned Judgment enables the litigants to understand why the court arrived at its decision.
Difficult to argue with that.
Secondly, clearly written judgments play a key role in ensuring that justice is seen to be done. They:
represent an important means through which public confidence in, and understanding of, the courts, and therefore in the rule of law, can be secured.
With the increase in litigants in person in the courts, this need has become increasingly stark.
So, more importantly, how can we oil the machinery of justice so that judgments are improved?
Lord Neuberger suggests a number of improvements.
He likes short summaries at the start of the judgment which are:
sufficient to enable a non-lawyer to know the facts, the issues, and how and why they were resolved
In addition, he believes:
a second small change worth considering would be for more judges to give better guidance to the structure and contents of their longer Judgments. Some judges already provide a clear framework, sometimes with a table of contents, a roadmap, at the beginning, and often with appropriate headings, signposts, throughout the Judgment
Lord Neuberger then proposes some further (self-proclaimed) controversial changes. The first of which is that he believes:
judges could take a more rigorous approach to cutting the length of their Judgments
In other words, get rid of the ‘unnecessary displays of learning’ or—my favourite phrase—the ‘anxious parade of knowledge’. I was certainly guilty of this as a trainee at times (‘look how much I know!’) but it would seem that even the most experienced and learned of judges can sometimes succumb to this temptation.
His second change relates to concurring and dissenting Judgments. In terms of the latter, he pleads for such judgments to be highlighted as such.
If, for example, it looks like a dissenting judgment and smells like one, it is still jolly useful to reiterate that it is one:
If it is difficult for other senior judges to ascertain the exact ratio of appellate decisions it is not difficult to imagine the problem a lawyer sitting in her office or chambers, let alone a lay person, would face.
He sees the benefit of dissenting judgments but they should be fewer and shorter.
So what can those of us who are not judges take from this?
Aside from the usual suggestions to cut out the superfluous, write in plain English and present a document well, this speech highlights the need to sometimes reiterate the obvious.
If you don’t agree with someone, say it.
Obviously, this should always be done in a professional way. I’m not suggesting, for example, that you tell your opponent he or she is ‘a plonker’ (a lawyer was recently reprimanded by the SRA for doing just that at a cost of £2,600). But if your opponent can’t actually work out what you are trying to say, then your work is probably not done.
Unless your instructions are to be as clear as mud.
But that’s perhaps for another time.
So what do you think? Do you struggle to trawl through judgments or do you think that they have improved in recent years? Do let us have your thoughts below.
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