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Analysing Judgments: Techniques for Criticism

Document Cited authorities 11 Cited in Related
AuthorAndrew Goodman
Pages187-197

CHAPTER 7


ANALYSING JUDGMENTS: TECHNIQUES FOR CRITICISM

7.1 CRITICISING A JUDGMENT FAIRLY

Successful appellate advocacy requires clear thinking, intellectual application and effective argument. In order to persuade an appellate tribunal that the judge below was wrong, you must understand yourself why he was wrong, be able to demonstrate that fact with clarity, and withstand a rigorous testing of your contention. You must be prepared for reality testing by analogy and hypothesis, by reduction or expansion of your argument, and by purposive analysis; and you must be able to show the appellate tribunal that your criticism of the judge is fair, and that it is right or just that the appeal should succeed. You should be conscious not only of the judge’s error, but also of the merits of your client’s own position. If you do not keep the merits firmly in mind, the court will. However great the error into which the first instance tribunal has fallen, whatever the departure from canon, if the merits are not with you, then your case will be found to be, on the facts, an aberration or an exception to the guiding principle, and whether intellectually sound or by sleight of hand, you will lose. You may win the argument, but you will lose the appeal.

Criticising a judgment fairly is the last stage of analytical reading. It involves giving an exacting consideration to the text and calls for a five-stage process:

• Reading actively.
• Developing a close understanding.
• Making a critical judgment.
• Understanding why you disagree.
• Forming a structured reply.

188 How Judges Decide Cases: Reading, Writing and Analysing Judgments

Active reading entails not blandly accepting what is being said. It requires an alertness in which the reader is prepared to challenge the writer to persuade him of the correctness of his position. It is unlike a passive operation in which information is absorbed without applying any critical faculty. You should remember that while grammatical and logical skill in writing clearly and intelligibly has merit in itself, the aim of a judgment is also to convince or persuade. The judge may use rhetorical or literary techniques, or the plainest of common language. Whatever the devices, they are intended to justify his findings. Your task is to react critically to the attempt to persuade.

The writer seeks to achieve intelligibility in his work and to convey understanding to his reader. The lawyer must achieve understanding before he can properly criticise. It may be that on occasion your judge is so prolix or diffuse that you have to strip away verbiage in order to search for understanding, but understand you must. As Adler suggests,1you must be able to say with reasonable certainty ‘I understand’ before you can say ‘I agree’, ‘I disagree’ or ‘I suspend judgment’. These three remarks exhaust all the critical positions you can take. However, you should bear in mind that criticism does not mean merely to disagree. To agree is just as much an exercise of critical judgment as disagreement. Suspending judgment is also an act of criticism: it is taking a position that something has not been shown or proven, which is highly pertinent to forensic analysis.

You must understand why you disagree, because your disagreement must be purposive if it is to enable you to appeal successfully. What is at stake is persuading an appellate tribunal that the basis of the disagreement – or the criticism of the judge’s judgment – is sufficiently causative or relevant or important first that the appeal should be permitted to be heard, and second, to succeed. An appeal is a futile – and expensive and time-consuming – agitation unless undertaken with the hope that it may either succeed before the court or at least lead to the resolution of an issue between the parties. Disagreement for its own sake is not enough: the costs regime is designed to deter criticism of judicial performance unless it not only has merit but will also be of practical significance. If other practical outcomes are possible, the Court of Appeal also actively promotes the use of its mediation scheme.

1Mortimer J Adler and Charles Van Doren, How to Read a Book (Touchstone/Simon &
Schuster, New York, 1972) at p 142.

Forming a structured reply will enable you to marshal your thought processes at the earliest stage, perhaps well before you are called upon to advise or settle a notice of appeal and skeleton argument in support. Once you have identified the basis for your criticism, you need to formulate an argument that enables the appellate tribunal to understand not only why the judge’s finding is wrong, but also why your client’s desired outcome is to be preferred.

7.2 ANALYSING YOUR DISAGREEMENT OBJECTIVELY

You have concluded that the judgment may properly and fairly be criticised. Next try to consider the position objectively as an outsider, in this case as the appellate tribunal, would. This is no doubt difficult in view of the two subjective opening positions. You believe that the judge was wrong. However, the appellate tribunal will instinctively start from a defensive point of view, wishing to protect the reputation and dignity of the court under attack, unless by some oversight or procedural defect it is fairly obvious that no reasonable tribunal could have come to the conclusion being appealed against. Taking a step back and making sure that you believe your criticism of the judge is reasonable, and that you are not just acting disputatiously or contentiously, may overcome this difficulty.

Consider whether the substance of your criticism...

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