Introduction
| Author | Andrew Goodman |
| Pages | 1-11 |
INTRODUCTION
The idea for a practical book devoted to the deconstruction of judgments and judicial opinion came from a number of sources. First, I discovered that the 1940 best seller How to Read a Book
Second, it seemed to me that the study of the process of making decisions, stimulated by Lord Bingham’s essay The Judge as Juror: The Judicial Determination of Factual Issues
Third, upon inquiry, it appears that the kind of formal training in legal method which I enjoyed, now over 40 years ago, is no longer available on many law courses, particularly for the Common Professional Examination/Graduate Diploma in Law (CPE/GDL) postgraduate law course in England and Wales and Hong Kong taken by non-law graduates wishing to convert to a professional legal discipline. In fact at the time of writing, the legal professions’ regulators are intent on watering down requirements which protect standards of entry.
Fourth, my investigation into judicial training provided by the Judicial College suggests that new recorders or deputy judges receive fairly minimal training in formal judgment writing and presently, no formal appraisal.
And fifth, the government keeps hinting at the need to widen the base for judicial appointments: for both lawyers and litigants there is the frightening prospect of judges who come to sit with little or no
New York).
Speeches (Oxford University Press, Oxford, 2000).
2 How Judges Decide Cases: Reading, Writing and Analysing Judgments
acquaintance with courtroom practice. At the time of writing the Judicial Appointments Commission is advertising for a new circuit judge to sit in the new Business and Property Court in Manchester. The advertisement stipulates ‘Apply to be a Specialist Civil Circuit Judge ... No judicial experience is needed.’
We are on the cusp of a generation of lawyers for whom the challenge of Brexit, the future influence of the Court of Justice of the European Union, the future role of the European Court of Human Rights and the recognition and interpretation of some 12,000 rules and regulations introduced directly into England and Wales law by the European Union (Withdrawal) Act 2018 is presently, and will for some time, be uncertain. The underlying philosophy of the Civil Procedure Rules 1998 means that settlement is preferable to and encouraged at the expense of judgment; the everyday use of ancient Latin maxims known to generations of lawyers and judges has begun to fade; and precise usage of the English language itself appears to be in decline.
And if there is a new generation of lawyers, how far behind is the new generation of judges: already they are interventionist, managerial and settlement minded. But at the same time judges are overworked and increasingly under-resourced, and put under unnecessary pressure of business. Indeed the imperative to force settlement in the face of a penalty costs regime could be said to emasculate, to an extent, the traditional function of the civil judiciary. The introduction of ‘on-line courts’ will remove from litigants the sense of local justice, and in the future there is no telling where artificial intelligence (AI) will take the delivery of a judicial function.
In attempting to devise methods of reading and analysing judgments, it quickly became apparent to me that I had to acquire an insight into how they come to be written, in terms of structure, language, style and content; and therefore to investigate how judges are trained both to come to their conclusions and to formulate these, either orally or in writing, and how, in fact, they do so.
Despite learned articles written principally by the well-known legal philosophers of the last century, notably Professor HLA Hart, Lord Devlin and, more recently, Professors Ronald Dworkin and Basil Markesinis, and the radical views of Professor Richard Susskind in digitising courts, the extent of practical literature in this area is very limited. I therefore determined that an empirical study was necessary in order to discover how judges go about their job.
To that end I have had the privilege of discussing their practical approach to writing judgments with members of the judiciary at every level, from Justices of the Supreme Court of the United Kingdom, members of the Judicial Committee of the Privy Council, former Lords of Appeal in Ordinary, Lords Justices of Appeal, puisne judges of each division of the High Court and circuit judges of the county and Crown Court, to recently appointed recorders and full- and part-time chairmen of various tribunals, notably those dealing with employment and discrimination, immigration, transport and valuations, and with commercial arbitrators. The answers provided to my questions on the format, language, literary style, method of decision-making, legal logic, concern over appeals, the problem of dissent and other matters – all integral to the creation of judgments – were given on the basis that they should not be attributable. This enabled judges to be candid, open, individualistic and enlightening, so much so that some of the information that I deal with in, for example, Chapters 1, 2 and 6 I had never come across before in print, although often suspected when engaged in my practice.
What emerged was the difficulty in searching for a consistent approach, not so much as to report its existence, but to identify a suggested way forward to the next generation of both lawyers and judges. If this sounds presumptuous, particularly coming from someone who holds no judicial appointment, but who has been an acute observer and critic of judicial pronouncement over 40 years, remember that judgment and judicial opinion are important tools of the lawyer’s trade, to rely and advise upon, to use to his...
To continue reading
Request your trial