Reading Judgments

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CHAPTER 4

READING JUDGMENTS

4.1 BASIC PRINCIPLES: FOCUS AND TIME

With respect to the many fine members of law faculties and departments across the country, law is not a subject that is readily teachable. Unlike purer academic subjects, it is not easily accessible. To understand law involves a process of learning by individual self-discovery – of research, of investigation and of reflection. The same is true of learning to read judgments, whether for study within a wider framework or for a specific task in hand: to formulate grounds of appeal, or to derive support for an argument. But whatever that task is, the starting point is to read, to absorb facts and recognise argument, to reflect, consider, cogitate, ruminate, analyse and to reach the desired and necessary level of understanding to be able to apply your thoughts about the information provided.

In this context the Adler¹method and classification of different levels of reading²is of particular assistance to the lawyer, since that is what we all engage in daily: whether substantive law, articles, textbooks, journals, documents or materials, we all read them inspectionally, analytically and syntopically whether or not we recognise such terms. We devote our time to the critical analysis of such material with a view to deciding whether it is relevant and whether we can apply it to assist us in solving the problem that presents itself.

This section, then, is devoted to a discussion of the techniques involved in reading judgments, and to improve the skills of those who already practice such techniques.

¹Mortimer J Adler and Charles Van Doren, How to Read a Book (Touchstone/Simon &

Schuster, New York, 1972) at pp 16–44.

²‘Elementary’, ‘inspectional’, ‘analytical’ and ‘syntopical’.

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

4.2 FOCUS

Let us first recognise that judgments are intellectually taxing. They are not meant for light reading; they are of significance, and not just to the parties.

Some are entirely fact orientated and can readily be understood and applied at a single reading. However, there are those of such weight and intellectual force they will be truly perplexing to anyone but a sophisticated reader of such matter. Or they may be so badly written as to be incomprehensible to ordinary people.³

Second, we should not lose sight of the fact that judgments have specific but different audiences. Initially the parties themselves, together with their stakeholders and supporters; then, their legal teams. If coming from an appellate jurisdiction, first instance judges, or tribunal chairmen and members who will have to apply the decision or procedure ruled upon at subsequent hearings, specialists in that area of law. If coming from the Supreme Court or the European Court of Justice, a wider audience still – politicians, the media, the general public affected by a matter of general public importance; and students of the law.

Third, the study of judgments already requires some degree of specialist skill in a number of different respects: they are not for the elementary reader, requiring a standard of English language and usage which is sufficient to carry understanding of sophisticated terms, phrases and words, including technical and professional jargon which is outside common parlance. They require some degree of understanding of basic legal principles and, more often than not, a degree of legal speciality.

Thus we should not characterise the reading of judgments as a commonplace, everyday or mundane activity. And that being so, it is important to see such reading as an activity that requires concentration, often intense concentration. The reader should therefore first find a time and a place where he can engage in difficult study without disturbance.

Some lawyers, whether out of habit or experience, are able to read judgments on public transport, or with a musical accompaniment, or amid the hustle of a busy office, or whilst eating. They are lucky, or foolish, or both, and not an example to be followed. Find somewhere uninterrupted

³See e.g. the speech of Lord Diplock in Tate & Lyle v Greater London Council [1983] UKHL

2, [1983] 2 AC 509 at 546 and 547, set out at para 5.3.

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by distraction where you can give the material in question the

concentration and effort it deserves.

4.3 TIME

A judgment should be read in its entirety in one sitting. Where the court consists of two or more judges, each of whom has delivered a separate judicial opinion because he has something of significance to say, preferably these should be read together at the same time. It is important that the reader has a feel for the whole of what is being said, since to approach it piecemeal, as well as breaking concentration, is more likely to encourage findings, argument and propositions of law being taken out of their true context, with the consequence of undermining a proper evaluation.

That is, of course, easier said than done. Important appeal judgments tend to be fairly lengthy. First-instance judgments which relate and then decide complex issues of fact, the subject of a trial lasting perhaps many days, may run to dozens if not a hundred pages or more. To read these in one sitting takes both planning and a deliberate effort to make the time available. Even a superficial reading of a judgment that one has not seen before may take a minute per page. For a close reading where one is trying to absorb facts, arguments, findings and law, you should allow up to 3 minutes per page, and with hard law, perhaps 5 minutes per page.

Analytical reading often requires more than one examination.

The time that a lawyer takes in reading a judgment depends on what he is reading it for; upon his particular need; on what, if anything, he expects to find; and on what mechanical process he uses to record his findings. These factors will also determine the level of his reading, or to put it another way the depth of his conscious activity. Ordinarily the reader will have either a fixed or general purpose in addressing the judgment in question: he may be a general reader of all law reports or judgments that come his way, for example a subscriber to an issue of law reports that he takes the trouble to read before shelving; or he may be alerted, these days electronically, to every recent judgment in a designated broad sphere of interest. For reading at this level, known as inspectional reading, some judgments are hardly worth even skimming: the facts may be extreme and the decision wholly fact orientated; a quick glance may be sufficient to tell the reader this is not a relevant judgment or one worthy of mental retention for the task in hand.

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4.4 INSPECTIONAL READING

Reading at the inspectional or general level does not require you to grasp every point on every page, nor should you wish to do so at this stage of your analysis: by mastering the finer points there is a...