Supreme Court judge Mr Justice Nicholas Kearnsconsiders how judgments should explain the law in the 21st century
WHILE IN Australia in the summer I chanced upon an interesting biography of Robert French, the country's new Chief Justice, which was written by journalist Michael Pelly for the Australiannewspaper: not only did Pelly portray Robert French as an affable figure who has shown a willingness to explain the law and connect more with the public, he told us that French is quite prepared in his writings to invoke pop culture figures such as Homer Simpson, Judge Dredd and Harry Potter to get his message across.
Not for the first time, it set me to wondering whether judges in the "noughties" should reconsider how they structure and compose their judgments. Should judgments nowadays be more "explanatory" of the law and should they forsake excessively formal methods of judgment writing in favour of a more communicative style? Are we as judges too reluctant to express a degree of individualism in our written output, too hidebound by traditional methods of composition - in a sense too prim to lick the yoghurt from the lid of the container?
Of course, judgment writing is a serious business, and I am not for one moment suggesting that the "dumbing down" of judicial writing is the desideratum of any rethink of how we go about our business. Lynne Truss in her writings has made it clear that to ignore the requirements of proper prose composition is to run many risks, not least of which is incoherence.
Judgment writing creates a multitude of challenges for a judge and can at times be a burden of considerable weight, notably nowadays, when judges are under severe constraint to complete their judgments within a short period and often in circumstances where they have several judgments to prepare in quick succession. An individual judge may detest judgment writing so much that he or she may ultimately opt to work in areas of law where the requirement to write judgments is at a minimum. Another may undergo considerable stress and anxiety in painstaking efforts to get everything absolutely right.
The primary functions of a judgment are threefold. In the first instance it serves to provide a resolution to the dispute raised in the proceedings before the court, where the losing party is for the judge a primary focus of concern. The judgment must set out a clearly reasoned basis for its conclusion. Secondly, the judgment establishes a binding precedent of legal authority which provides guidance for judges, the legal profession and legal scholarship generally as to how the law is to be interpreted and applied in particular circumstances. Thirdly, it also serves a communicative function which should be of benefit to society as a whole, representing as it does the transparent and openly democratic functioning of our legal system.
Therefore, if it be the case that parties leave court unhappy because a judgment or ruling is written in terms incomprehensible to them, the judgment has come up short in a vital respect.
Whatever about style of writing, it is important to emphasise that the basic criteria for writing judgments under the common law system must always be observed. Firstly, the relevant facts of the case must be set out in sufficient detail. The relevant legal principles must then also be considered. They must then be applied in a coherent manner to the facts to produce an outcome. Some judges will summarise the submissions of the various parties to a greater or lesser degree before setting out a decision.
There are dangers in this approach if a judge simply opts for one submission rather than another, particularly if he thereby absolves himself from the inescapable task of demonstrating how and why the relevant legal principles combine with the facts of the case to support his conclusion. It must also be said that our function as judges is not to write for a particular effect or to proselytise on a favoured theme - our function is to uphold the laws and interpret them: nothing more. How we express ourselves, however, in that endeavour is a vital part of that function.
Having observed the basics, therefore, there remains considerable scope in my view for a judge to adopt a style which makes his judgment more readable. Lord Denning was famous for his use of folksy one-liners to commence a judgment that was often one of considerable complexity. The Law Reform Commission in this country has noted in its Consultation Paper Statutory Drafting Interpretation: Plain Language The Lawthat the movement towards the use of plain language in the law is "a reaction to the remoteness and complexity of legal language".
Excessive recourse to Latin quotations, excessive quotation from other cases and judgments, and excessively ornate, overblown rhetoric are all qualities which - for me at least - diminish the interest of a judgment and distract from its narrative quality. While of course precedent cases must be referred to and their significance explained, I would prefer to see more use of footnotes in judgments wherever possible, so that a judgment can be read as the opinion of the judge writing, rather than a hodgepodge of past views of other judges, however eminent.
When writing a judgment, I see no reason why references to current events or popular culture should be seen as taboo. Thus, when writing in the recent decision of the Supreme Court in O'Callaghan v Mahon Tribunal, Mr Justice Hardiman referred to Roy Keane's much publicised court case in Manchester, which had then just concluded, for his purpose of illustrating a point about the importance of full disclosure for the purpose of permitting effective cross-examination.
According to a study in the US, it appears that judges have been using music lyrics to advance legal arguments for the past 30 years. Alex Long conducted a survey to find out which artists are most frequently cited. Not surprisingly, Bob Dylan emerged the clear winner. Long noted that Dylan's famous observation that "you don't need a weatherman to know which way the wind blows" has become almost "boilerplate" language in the decisions of the California appellate courts when they decide whether expert testimony is required in a case.
Judgments may also be enlivened by literary references and quotations. Thus, references to Philip Larkin's poetry or the writings of Charles Dickens have appeared in a number of British judgments in recent years. In our own jurisdiction, recently retired High Court judge Tom Smyth used historical and literary quotations to great effect in his judgments. A well chosen quotation, as noted by Posner ( Cardozo: A Study in Reputation, University of Chicago, 1990) "rivets attention, crystallizes relevant concerns and considerations and provokes thought".
However, it is impossible to overemphasise the requirement to ensure a quotation is absolutely correct, as one's colleagues will delight not for just a day but forever if one gets it wrong.
The use of humour by judges is similarly fraught with danger. In writing for the New York Law Journal, Justice Wallach of the Supreme Court of New York pointed out: " . . . I would urge that a touch of humour, carefully controlled, can properly find a place in judicial writing. At best it can be useful in deflating the overblown arguments; at worst (provided it is not nasty and therefore not humorous at all) it is probably harmless."
On the other side of the coin, opponents would argue that the inclusion of humorous references in judgments tends to undermine the authoritative and solemn task of the law, and is incompatible with the nature of the judgment with regard to its other primary functions. Prosser ( The Judicial Humorist, Little Brown, Boston, 1952) captures this sentiment in the following passage: "The bench is not an appropriate place for unseemly levity. The litigant has vital interests at stake. His entire future, or even his life, may be trembling in the balance, and the robed buffoon who makes merry at his expense should be choked with his own wig."
While very much of the latter view (certainly for so long as we still retain wigs), I would simply say that once in a while the facts of a particular case may be so absurd and bizarre that the omission of some appropriate comment may itself render the judgment excessively tedious and pedantic.
The enduring value of any judgment will derive ultimately from the qualities of imagination, perception and clarity brought to bear upon the resolution of a legal issue. In this respect good prose, which ultimately may be seen as a form of good manners and consideration for the reader, makes for good judgments. The judgments of Judge Seamus Henchy, a former member of the Supreme Court, remain classic examples of judgment writing which demonstrate all of the requisite qualities.
I started with Robert French so it is perhaps appropriate to conclude with Michael Pelly's statement in the same article that French "likes to move to the music on his iPod, which includes Mozart, Rachmaninoff, the Tenors, Bruce Springsteen, Don McClean, Buddy Holly and Cat Stevens". While the pop list may be a bit behind the times, at least he knows how to operate an iPod. Good for him - I wish him every success in his new role.
• This article is based on a talk given at Queen's University Annual Law Conference earlier this year