My last blog examined the application of lawyers' conflicts law in a 2016 Ontario family dispute and identified one troubling judicial writing technique. I ended my look at the case by noting that the use of first names in judgment writing could be perceived to be overly familiar or patronizing, and is especially troubling when used selectively. This blog follows from that point and looks at 3 additional pitfalls in judgment writing, that I think should also be avoided.
Approaches to judicial writing have been the focus of some critical attention in Canada. I think it's fair to say that all adjudicative officials have a difficult and challenging job to write clear, logical and legally reasonable judgments. Many, if not most Canadian judges, are effective communicators and avoid things like legal jargon to write "lucid" decisions, as discussed in this interesting January 12, 2017 article by Daniela Murynka in The Walrus.
However, the recent criticisms of judicial writing styles suggest there is some room for improvement. The use of humour or irreverence in judicial writing, for example, risks wrongly highlighting the cleverness or erudition of the judge, instead of focusing on the parties, victims and those directly and indirectly affected by decisions, a point made, inter alia, by Alice Woolley in her recent post discussing The Problem of Judicial Arrogance.
Within the context of this broader discussion about effective judgments I think there are 3 additional approaches to judicial writing that may also be problematic, discussed below.
3. "The Law Should Not Be a Mystery Novel"1
Remember last year's high profile court decision involving Canadian Senator Mike Duffy? For several hours last April, the judge sat in an Ottawa courtroom reading his judgment aloud. All the while social media was abuzz with journalists and others attempting to divine the final outcome, based largely on the spoken introductory comments of the judge. .
Some of the frustration in awaiting the outcome in this case would have been alleviated if the judge had stated simply the results of his analysis in his introduction. In this respect, judges should avoid being cryptic - writing in a way to make the judgment like a mystery, leaving everyone guessing. As an aspect of 'point first' writing, I think its important for judgments to be up front about the determinations that are being made, based on the analysis later in a decision.
This 'point first' approach is consistent with legal writing best practices, such as those described by Ontario Court of Appeal judge John Laskin in his well known article for advocates, Forget the Wind Up and Make the Pitch. This kind of directness in writing is especially important for judges, whose decisions may have a profound impact on those before the court, many of whom would undoubtedly simply like their matter resolved efficiently and effectively. Moreover, in the modern media age, the 'reading' of court decisions, without releasing a text in advance, seems both archaic and unnecessary.
4. Personal Anecdotes Should be Used Sparingly, Maybe Not At All
For various reasons, judges sometimes insert personal stories into judgments. At their best, these anecdotes are an example of 'judicial notice' that may highlight some important points being made in decisions or possibly demonstrate the courts' connection to the 'real world'.2
At their worst though, such personal anecdotes may not be especially helpful to resolve legal issues and may serve to further focus attention on the decision-maker, as opposed to those before the court. To return to the example of the Duffy decision set out above, the Court (at para 4) relayed a story of a homeless person asking the judge about the decision, to highlight the widespread attention the proceedings had received and also to emphasize the importance of the presumption of innocence.
Taken at face value, the Duffy example seems like reasonable example of the appropriate use of a personal story to introduce legal analysis. But was it really necessary? In the nation's capital, involving a well known Senator, high political intrigue, and questions about the integrity of Canadian federal government of the day, very few would have questioned the prominence of the legal decision. Moreover, I recollect at least one comment on social media at the time to the effect that, by relating this personal story, the judge appeared to be "enjoying" the spotlight of attention the case had received.
I have little doubt that the judge, a widely respected senior jurist, see here, did not intend this impression. But such personal anecdotes risk being seen as having little to do with the primary role and function of the court to resolve disputes and could be regarded instead as self-serving. When personal judicial anecdotes focus attention away from legal issues and onto the personal importance and experience of the adjudicative official, judges should consider not employing this technique to make their points. Of course, the best way to avoid this risk entirely would be to not use personal anecdotes to buttress legal reasoning at all.
4. Making Up Your Own Mind - The Most Powerful Conclusion
Since I was a law student, I have continuously heard a seemingly simple assertion about legal writing. That is: "just tell a story". Given the centrality of narrative in law, this is, in some ways, good advice.4
Usually people will say it is good advice in legal writing because narrative structure has a centuries long pedigree of capably communicating ideas, values, culture and helping people to visualize circumstances. For judgment writing, such structure may be very persuasive in getting others to agree to the legitimacy of legal determinations. There is an extended analysis possible here to test these propositions, that may have to wait for a future blog (at least 1!).3
Suffice to say for now that I have come to question "the story" and its benefit to legal writing. Briefly, narrative has certain general requirements - such as a hero, a villain - as well as certain structural features - such as a beginning and end, a crisis and a conflict.4 In this context, narrative models for judgment writing are not inherently 'neutral' and may unfairly tend to highlight certain things and diminish others for the sake of 'the story'. In other cases, litigants may wish to resolve their disputes without the addition of such dramatic characterizations, which may also belie their own perception of what actually happened, and be far removed from the gritty specificity and mundanity of daily existence.5
The use of "stories" in law can often be very effective. But the most adept advocates also have a capacity to set out relevant facts and law in a way that compels a favourable judicial interpretation of their case. From the facts and law simply presented, the decision-maker may come to their own conclusion. Similarly, in conveying these conclusions in legal judgments, an effective approach is one that allow facts and law to speak for themselves, in a way that makes the ultimate determination inevitable (at least apparently). In this case, judges should also try to remember that amongst the most powerful conclusions are those which people come to on their own.
The 'story' in law still has its uses and benefits in legal writing. No ordering of facts and law, even absent an explicit structure, is likely completely neutral. In addition, even without obvious narrative, this form may exert a powerful influence on people's thinking, so it may be impossible to avoid 'stories' in judgment writing. But I also think that we should be mindful of potential side-effects and risks of intentionally using narrative structure and techniques to persuade in law.
This blog has looked at the pitfalls of writing legal judgments as a "mystery novel", of some risks in using personal anecdotes in decisions, as well as the possible unwanted side-effects of narrative structure in law. Judgment writing is a substantial challenge, and something of a talent. But it is also a skill, that like all skills can be improved by most adjudicative officials through practice, reflection and constructive feedback. Hopefully most can avoid some of the pitfalls, set out above, as well as broader challenges, and continue to render good decisions in the best traditions of the bench.
1. Here I am quoting the remembrance of a frequent admonition from my former 1L contracts instructor, Professor David Mullan.
2. The doctrine of judicial notice has been the subject of some extensive and substantive controversy in the past in Canada, see eg the case of R v S (RD)  3 SCR 484.
3. And a vast body of scholarship devoted to many aspects of the law and literature perspective, including the well known work by White, James B, The Legal Imagination Studies in the Nature of Legal Thought and Expression. (Boston, Little Brown: 1973).
4. See eg, Peter Brooks, "Narrative in and of the Law", in A Companion to Narrative Theory 415 (James Phelan & Peter J. Rabinowitz eds, 2005).
5. See eg Alan Dershowitz, "Life Is Not a Dramatic Narrative" in Peter Brooks, Law’s Stories 14, 16, Peter Brooks & Paul Gewirtz eds ,(Yale UP: 1998).