Writing Judgments, Decisions and Awards
Author | Andrew Goodman |
Pages | 67-96 |
CHAPTER 3
WRITING JUDGMENTS, DECISIONS AND AWARDS
Litigants want judgments, not rhetoric, so that they can get on with their lives ...
Judge Wald, District of Columbia Circuit
3.1 DELIVERING AND WRITING JUDGMENTS
Down to the chancellorship of Lord Lyndhurst in the 1830s, the concept of a reserved written judgment was virtually unknown, even in the higher courts.
This is not to say that the judge should rush to judgment, since he should be clear in his mind as to what he is going to decide, and be ready to do so; there is always a danger that a hurried judgment will omit something of importance and lead either to an appeal or at least impart a feeling of
LQR 226 at 232.
68 How Judges Decide Cases: Reading, Writing and Analysing Judgments
real injustice in the losing party. Retirement for a few minutes, over a short adjournment, or overnight if at the end of a long sitting day may help clear the judge’s mind and render the judgment more succinct.
The reserved judgment has the benefit of enabling the judge to come to terms with complex issues of fact and law, and to deal with lengthy bodies of evidence or the close examination of a copious number of documents. The judge can take as much time as he needs over the decision; he can ensure that nothing is omitted, that each issue is resolved and his reasoning is correct; he may hone and perfect what he wishes to say, select his language more carefully and prepare and edit drafts before delivery. If he dictates his judgments, he will have the opportunity of correcting grammatical errors and inconsistencies of which he might otherwise be unaware until asked to approve a court transcript to be used for the purpose of an appeal, although dictation tends to increase wordage quite substantially. If he uses word processing software himself, he can scrutinise his own spelling and grammar at leisure, and, as a process, it enables a judge to cut and paste written submissions, authorities and citations provided to him electronically by counsel.
Reserving judgment, and in particular reserving first instance decisions on any regular basis, will put a judge under pressure. The longer he leaves it, the greater will be the difficulty in constructing it. Irrespective of a detailed note, it is likely that any independent memory and ‘feel’ for the case will rapidly deteriorate. During the hearing the judge is required to exhibit an intensity of concentration, which, as time passes, will often be impossible to reproduce. It is no answer for a judge to rely on a recording service such as ‘Livenote’ if he has lost the impression conveyed by the witness at the time. Moreover, delay between the close of evidence and the delivery of judgment or award has become a matter of considerable scrutiny by the Privy Council,
justice denied is reflected substantively in the ECHR, as the House of Lords has made clear:
the right in Article 6(1) to a determination within a reasonable time is an independent right, and that it is to be distinguished from the Article 6(1) right to a fair trial.
3.2 PREPARATION
Merely because a judgment is delivered ex tempore, that is not an indication that the judge has undertaken no preparation: quite the reverse. Only highly experienced members of the judiciary, at whatever level, are able to deliver a truly ‘off the cuff’ performance. It comes naturally to very few. A successful judgment is one that is:
• unimpeachable;
• decisive;
• addresses the precise issues the parties wish to be resolved;
• cogent;
• well-reasoned; and
• satisfies even the loser that he has been met with a fair, albeit disappointing decision.
The key is preparation.
Time permitting, pre-reading the statements of case, counsel’s skeleton arguments, and the core witness statements and documents will enable the judge to have identified the relevant facts and principal issues before even going into court. An adequate but not overly fulsome chronology is probably the most important tool in preparing and delivering a judgment ex tempore. If that provided by the parties is inadequate, a judge would do well to prepare his own, either prior to or during the course of the hearing as the material facts emerge. For the purpose of creating a structured judgment with ease, it is the chronology that forms a skeleton on which the findings of fact can be grown. Unquestionably, much of the early part of a judgment can be written before the case has been concluded, certainly before the facts have been decided. Judges who use a formulaic approach to the structure of their judgments may have more than half of what they will eventually say prepared before closing arguments are made.
United Kingdom [2003] All ER (D) 84 (Jan).
70 How Judges Decide Cases: Reading, Writing and Analysing Judgments
If the time is not available for any extensive pre-reading beyond the statements of case and written submissions, the judge should decide quickly whether the skeleton arguments submitted are sufficiently reliable and comprehensive to use as an aide-memoire for the purpose of setting out the facts and issues to be decided directly in the judgment. If not, he will jot down matters that he wants to include in his judgment as the hearing progresses. Throughout the trial experienced judges not only mark up important passages in the evidence but will make marginal notes, and often cross reference matters to a separate sheet of paper where they have begun to formulate the structure of the judgment, much of which will afterwards be read straight from the judge’s notebook. This will almost always be true of fast track claims.
3.3 JUDGMENT IN THE LOWER COURTS
The quality of a judgment depends on the time available to prepare and deliver it. The pressure of business in the lower courts, with small value and therefore higher relative cost claims, keeps the judge’s time at a premium. Whatever the pressure of time Article 6 requires that all decisions, including the exercise of a discretion, be reasoned and therefore justifiable.
The general framework for a judgment in the lower courts will be the same for both an ex tempore and a reserved judgment. Whilst the broad approach will be no different, a reserved judgment is likely to set out more clearly defined issues and more detailed findings than a judgment in the same case given ex tempore, where there is a tendency to run issues together more, and to avoid dealing with minor events. Not only is there a danger of missing issues, but it is tempting for the judge to jump into findings without analysing the evidence on discrete issues.
Nonetheless at the lowest level, the judge should expect always to deliver his judgment ex tempore. If time does permit it pays to write the whole judgment out and read it through to make sure it sounds alright: preparation is as much a time-saving device as an intellectual exercise. If he pre-reads, the judge can prepare the first stages of judgment before going into court, take his facts from the skeleton, and fill in the evidence
and his conclusions. This preparation enables the judge to concentrate on the conflicting submissions. If he uses a laptop computer to take his notes of evidence he will usually put passages straight into the judgment. Where necessary he will take the time to make a cross-reference to arguments in the skeleton, the authorities and the...
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