Passive aggressive Rafferty urges advocates to keep it short

Rafferty: Don’t call me learned

The chair of the Judicial College has urged advocates to be more concise to win judges over, complaining about grounds of appeal that are “too long, rambling, waffling [and] warbling”.

Lady Justice Rafferty questioned why some were “wedded to archaic syntax and particularly to the passive voice? ‘It is thought’, ‘It is arguable’, ‘It is suggested’ are favourites.

“Well, it certainly is suggested, at least by me, that this has reached the end of its natural life.”

Though her speech was in a criminal law context – given to the Criminal Law Review Conference – the comments could undoubtedly apply just as much to civil practitioners.

She cited some papers on her desk that she had randomly landed upon to make her point. These began: “The offender faced a four count indictment as follows: The offender faced trial before the judge and jury…”

She said: “Now, if he were tried in a Crown Court, call me old-fashioned but isn’t that bound to be before a judge and jury? And don’t all counts sit on an indictment?”

Rafferty LJ continued: “In a skeleton argument I can read about the ‘learned judge’ up to 60 times. Speaking entirely for myself life will still hold meaning for me if I am referred to as the judge not the learned judge.

“Similarly, the author’s respect for the judge’s efforts below doesn’t need to be repeated 15 times, let alone made more profound when it becomes ‘with the greatest respect’…

“The reader, in circumstances you and I know well, does in my opinion better when confronted with fewer words. The advocate’s points stand out better. The effort for the judge reading is reduced, and, bear in mind, you want the judge on your side.”

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