Modern judgments have become “far too long” and judges sometimes forget who their audience is, a former member of the Court of Appeal has suggested.
Sir Robin Jacob noted that, “surprisingly”, judgment writing has never been part of judicial training and put forward his own guidelines on what judges should consider.
Writing in Prospect magazine’s new legal report, Sir Robin said a judgment was not meant to be a thesis. “It is to explain what the case is about and why the judge is deciding it the way he or she does. That is all. The primary audience is the parties, particularly the ‘guy who loses’, as one American judge put it.
“Judgments ought not to be written for academics at all – they consider and write about the law having regard to judgments, and have no need of judges to do their work for them. The legal profession is of course interested in judgments – but that has always been so without judges writing their judgments with the profession as a target.”
He described the trend to longer judgments as “regrettable” and increasing costs by making them harder to use for research.
Sir Robin – who is a door tenant at 8 New Square and professor of intellectual property law at University College London – blamed in part the effect of technology in making it “so easy to pick stuff up and stick it down”, but put it down more to a change in the “culture of judgment-writing”.
He explained: “Everyone has almost come to expect long judgments. There is now no sense of shame in turning out a few hundred paragraphs where the job could have been done in around 80.
“Finally there is the sheer work pressure – it is easier to write long than short.”
One solution, he suggested, was a judicial code for judgment-writing and gave it a “first shot”:
- Judgments should be as concise as reasonably possible;
- Keep sentences short. Never use two words where one will do;
- Beware subordinate clauses;
- Keep the number of authorities you cite down to what is necessary. You are not writing to show how clever or learned you are;
- If you quote from an authority, keep the quotation as short as possible. Seldom, if ever, use more than two sentences. The same applies when quoting from a key document;
- Keep your recital of facts to what is necessary;
- Avoid any detail that is not important;
- When you have done your first draft judgment, go over it and cut out unnecessary words or see if you can say something more succinctly;
- Then do it again;
- Empathise with your key readers – who are the parties;
- Eschew trying to lay down the law on the subject in hand for all future generations;
- The losing party is the more important and you need to cover each point he or she makes. But, save for the main point(s), all others only need brief mention and disposal. This is particularly true at first instance – do not let a large number of points lead to prolixity;
- Overall, try to make the whole thing at least readable, if not a page-turner.