Index
| Author | Andrew Goodman |
| Pages | 221-234 |
INDEX
References are to page numbers
Appeals
appellate courts and tribunals
47–48
Court of Appeal see Court of
Appeal
finding of fact, reluctance to depart from 47
language of judgment measured approach to, need for 48
nature of 47
Privy Council see Privy Council
(Judicial Committee of) search for truth, no element of
47
structure of judgment, nature of
47
Supreme Court, in see under
Supreme Court
tribunal, in 93–95 unwillingness to overturn judgments 47 Arbitration see also Tribunal approach to judgment 85–86 Chartered Institute of
Arbitrators’ General Checklist 85–86
Argument
Adler’s definition of 164 competing, value of 51–53 discrimination between types of
157
effective, sources of 157
in judgment, analysis of 112 linguistic analysis of 112 method of expression of 164
positive judicial argument
163–164
reasoning
locating the arguments 155 omission of steps in argument
155–156
soundness of logical basis
158
structural approach to 112 words as vehicles for 117 Artificial intelligence availability of reading on 14 delivery of judicial function, and 2
Bias
categories, identification of 30 Danziger research into 30n28 easy and difficult questions, need to distinguish between 41
evidence, need to anchor decisions in 41
factors increasing likelihood of
30
generally 29–30
herd psychology 30 intensity of focus, dangers of
42
intuitive heuristics identification of 30
types 31–40
intuitive question, need to consider appropriateness of 42
Kahneman’s work into 30–31, 40
222 How Judges Decide Cases: Reading, Writing and Analysing Judgments
Bias (continued)
language, use of 41 preconceptions
awareness, need for 41 existence of 40
impact, need for awareness of
40
subconscious stereotyping
41
rationality, need for 41 unconscious nature of generally 30, 40
see also preconceptions above wrong question, dealing with
42
Civility
courtesy and respect, need for
26–27
disputed resolution processes, need to preserve and improve 27–28
effective communication, need for 28
essential nature of 28 examples 28–29
guidance as to 26–28
judicial system to act with 26 law and legal system, need to preserve 27–28
timely resolution of case, need for 27
Common law
development of
effect on decisions 7
nature of 175
reasoning, effect on 160–162 Court of Appeal
audience for judgment 95 competing arguments, value of
51–53 decision-making in analogy, use of 49
CPR 1998, guidance on interpretation of 51
debate, process of 49
facts on margin of law, where
50
first instance decisions, similar approach to 49
generally 48–51
language, care in use of 49 lead judgment writer, role of
48–49
new law, limited scope for making 51
pre-case discussion 48 procedural law, application of policy in 51
question and answer approach 49 reality-testing of pre-existing view 48
recent decisions as guideline
50
skeleton arguments, use of
48, 49
specialist knowledge, use of
50
time for decision 48 dissent
advocates, role of 51 freedom to 51
generally 51–52
lead judgment writer in minority 52
pre-case discussion showing lack of agreement 51 rarity 52
ex tempore judgment application for permission to appeal 95–96
danger in giving 95 reluctance to reproach trial judge 48
reported judgment 95
reserved judgment 95 second-guessing trial judge, drawbacks of 47
Critical techniques
active reading, need for 188 critical judgment, making 188 fair criticism
fallacy in reasoning 194–196 five-stage process 187 illogical approach of judge
194–196
incomplete analysis of facts or law 196
mechanics of 191 misinformed judge 192–194 need for 187–189 uninformed judge 191–192 focus of criticism 190
general approach 187–189 identifying issue at stake 190 knowledge and opinion, distinguishing between 189– 190
objective analysis 189 structured reply, forming 189,
197
types of criticism 188 understanding, need for 188 whether judge’s conclusion unfounded 190
Decision-making techniques reading on 14
Deputy District Judge
Induction Course see under
Judicial training
English language
precise usage, decline in 2
Evidence
circumstantial, assessment of
19–20
common sense, use of 21
credibility of witness addressing issue of 81–82 guide to analysis of 19 unnecessary attack on 20 whether germane to litigation
20
documentary, testing 17 evaluation, judge’s approach to
17
expert see Expert
fact, assertions of 17 fundamentals of viewing 17 oath, on 21–22
secondary facts, treatment of 21 statement of truth, effect of introduction 17 unreliability, factors giving rise to 20–21
weight to
how to attach 20–21 inference from particular circumstances, drawing 21 method or omission from method, evidence of 21 secondary facts, treatment of
21
witness see Witness
Expert
analysing judge’s approach to
165–166
case management, effect on evidence 166
choosing between experts of differing opinion 168
CPR 1998, purpose of 166 drawbacks to evidence, etc 167 fundamentals to bear in mind
165
generally 165–168
judge’s approach to dealing with 165
matters for judge to consider
167–168
224 How Judges Decide Cases: Reading, Writing and Analysing Judgments
Expert (continued)
minority expert opinion 167 norm or constant, provision of
166–167
novel nature of evidence, as technology advances 168 questions for judge to ask 166
Fact-finding see also Evidence assertions of fact not evidence
17
inferences of fact, drawing 17 intuition, use of 15–16
Lord Bingham’s approach to
13, 18–19
mechanics of
agreed facts, seeking out 15 burden of proof, reliance on
15, 16
disputed facts, approach to 16 intuition, reliance on 15–16 positive findings of fact, need to make 18
preview of papers, impression from 16–17
truth, whether seeker of 17–
18
witness’s credibility, analysis of 19
see also Evidence
witness see Witness
Finding the solution
advocate’s task 157 generally 156–160 interpretive reading 156...
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