The Use of Language in Judgments
| Author | Andrew Goodman |
| Pages | 109-150 |
CHAPTER 5
THE USE OF LANGUAGE IN JUDGMENTS
5.1 THE CHOICE OF JUDICIAL LANGUAGE
Lawyers dealing with contentious business exercise three basic skills: critical analysis; problem-solving; and communication. Judges extend critical analysis into making value judgments, perhaps conditioned by unconscious bias,
The care with which words are chosen to formulate judgments is of immense importance to the judiciary, and the more senior the tribunal, the greater the care taken with each clause and each sentence. Each word has its place, whether used in the kind of memorable lyrical but emotive-laden opening for which Lord Denning was famous, such as in Hinz v Berry:
It happened on April 19, 1964. It was bluebell time in Kent. Mr. and Mrs. Hinz had been married some 10 years, and they had four children, all aged nine and under. The youngest was one. Mrs. Hinz was a remarkable woman. In addition to her own four, she was foster-mother to four other children. To add to it, she was two months pregnant with her fifth child.
On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island. They took all eight children with them. As they were coming back they turned into a lay-by at Thurnham to have a picnic tea. The husband, Mr. Hinz, was at the back of the Dormobile making the tea. Mrs. Hinz had
110 How Judges Decide Cases: Reading, Writing and Analysing Judgments
taken Stephanie, her third child, aged three, across the road to pick bluebells on the opposite side. There came along a Jaguar car driven by Mr. Berry, out of control. A tyre had burst. The Jaguar rushed into this lay-by and crashed into Mr. Hinz and the children. Mr. Hinz was frightfully injured and died a little later. Nearly all the children were hurt. Blood was streaming from their heads. Mrs. Hinz, hearing the crash, turned round and saw this disaster. She ran across the road and did all she could. Her husband was beyond recall. But the children recovered.
An action has been brought on her behalf and on behalf of the children for damages against Mr. Berry, the defendant. The injuries to the children have been settled by various sums being paid. The pecuniary loss to Mrs. Hinz by reason of the loss of her husband has been found by the judge to be some £15,000; but there remains the question of the damages payable to her for her nervous shock – the shock which she suffered by seeing her husband lying in the road dying, and the children strewn about.
Or in Lloyds Bank Ltd v Bundy:
Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was at Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank. Up to the very hilt. Not to borrow money for himself, but for the sake of his son. Now the bank have come down on him. They have foreclosed. They want to get him out of Yew Tree Farm and to sell it. They have brought this action against him for possession. Going out means ruin for him. He was granted legal aid. His lawyers put in a defence. They said that, when he executed the charge to the bank he did not know what he was doing: or at any rate that the circumstances were such that he ought not to be bound by it. At the trial his plight was plain. The judge was sorry for him. He said he was a ‘poor old gentleman.’ He was so obviously incapacitated that the judge admitted his proof in evidence. He had a heart attack in the witness-box. Yet the judge felt he could do nothing for him. There is nothing, he said, ‘which takes this out of the vast range of commercial transactions.’ He ordered Herbert Bundy to give up possession of Yew Tree Farm to the bank. Now there is an appeal to this court. The ground is that the circumstances were so exceptional that Herbert Bundy should not be held bound.
Or a pithy aphorism, such as:
the state of a man’s mind is as much a fact as the state of his digestion ...
Or a pragmatic rhetorical statement in the form of question and self-answer:
Does section 36(1) of the 1993 Act prohibit the making of a contract for the sale of charity land?
27 But for the decision in Milner v Staffordshire Congregational Union (Inc) [1956] Ch 275 I would have no doubt that the answer to the question whether section 36(1) of the 1993 Act prohibits the making (as distinct from the performance) of a contract for the sale of charity land—in circumstances where section 36(1) applies—is ‘No’.
In his insightful article ‘A Matter of Style’,
When asked what they considered their function to be in delivering a judgment, the judges to whom I have spoken identified a range of audiences. First instance judges and tribunal chairmen point to the need to provide the parties and their lawyers with a final decision of the matter in hand and to explain clearly their reasons for it, particularly ensuring that the loser understands why he has lost. Where a litigant is in person, the reasoning, jargon and legal concepts must be explained in a way that a layman can readily understand. For lawyers, the reasoning must be coherent and logical; it must convey a sense of impartial and comprehensive analysis of the evidence and argument of all sides.
Lords Justices of Appeal considered it important, in addition, to make their decision clear to lawyers and other judges who would have to read it and apply what was, and equally what was not, decided. Or as Sir Christopher Staughton puts it:
Chadwick LJ at [26] and [27].
Inner Temple Hall, 29 November 2000.
112 How Judges Decide Cases: Reading, Writing and Analysing Judgments
there is a good deal to be said for certainty in the law, for at least two reasons. First, people ought to know, or be able to find out, whether their future conduct will be lawful or not ... Secondly, uncertainty in the law breeds litigation.
The audience intended for a dissenting judgment, in addition to the parties and their lawyers, is invariably a higher court or perhaps a specialist branch of the profession.
Justices of the Supreme Court and members of the Judicial Committee of the Privy Council strive to create judicial opinion that is practical in application, intellectually satisfying and stimulating of policy debate.
Recognising then, that the judiciary is addressing different audiences, let us consider the practical means by which linguistic analysis can be of assistance in breaking down a judgment. This is an exercise that goes back to the earliest of lessons in grammar and syntax.
5.2 LINGUISTIC ANALYSIS
Sound legal argument should be based on a series of propositions, each supported by the requisite authority or the necessary evidence, in a progression that creates a momentum driving the recipient inexorably to the desired conclusion. The progression should flow both linguistically and logically. Where the support is either illusory or insufficient, or where the progression is illogical, the argument will break down as the momentum towards the desired conclusion falters. If the argument is contained in a judgment, it is at this point that the judgment becomes open to fair criticism, and hence an appeal.
Look first at the linguistic progression of argument contained in a judgment: lawyers have to examine sentences with care, much in the same way as a close analysis of statements of case, to see what can be accepted and what must be denied. Adler suggests
To do so, you have to become aware of the key words and phrases, which begs the question, how do you locate the most important sentences in a
Schuster, New York, 1972) at p 121.
judgment, and analyse the propositions they contain? In considering non-fiction generally, Adler deals with the problem thus:
The important sentences are the ones that express the judgments on which (the author’s) whole argument rests. A book usually contains much more than the bare statement of an argument, or a series of arguments. The author may explain how he came to the point of view he now holds ... he may comment on the work of others ... he may indulge in all sorts of supporting and surrounding discussion. But the...
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