Justice Roslyn Atkinson
by the Honourable Justice Roslyn Atkinson to Magistrates Conference, Gold Coast,
March 21, 2002.
any of us sitting in judgment on others, whether as judge or magistrate,
judgment writing often feels like the bane of our exercise but it is, of course,
the ultimate reason for our existence. In The Eumenides, the Greek playwright
Aeschylus wrote in 458 B.C.:
trial, fair judgment…
which issued clear as day…
[Q]uench your anger; let not indignation reign
on our soil, corroding every seed
the whole land is sterile desert…
[C]alm this black and swelling wrath.
is said that this play is the oldest surviving courtroom drama in world
literature. Much of literature, as in life, deals with the tension between the
desire for people to take justice into their own hands, exact revenge or engage
in self-help, as opposed to the processes of the law, which, importantly from
our point of view, are determined by a fair trial and fair judgment.
judgment therefore, is a significant social and civic function. But what I am
more concerned with today is the everyday task of judgment writing: something we
do day in, day out. Some judgments almost write themselves. They are purely
mechanical and can be dealt with quickly. Others are more complex and require
deeper thought. All of us are constantly striving to write better, clearer
judgments. How do we do it?
first matter to consider is the purpose of the judgment. To my mind there are
four purposes for any judgment that is written:
To clarify your own thoughts;
To explain your decision to the parties;
To communicate the reason for the decision to the public; and
To provide reasons for an appeal court to consider.
I deal with these purposes in reverse order.
the reasons for an appeal court to consider. This is the least important reason
for a judgment to be written but often is one that worries new judges and
magistrates the most. Once you have been writing judgments for a while you come
to welcome the clarification or expansion of the law by an appeal court or the
identification of errors that you have made so that you don’t repeat those
errors. It takes an immense burden from a judicial officer to know that if you
get it wrong it can be corrected on appeal. This is not to underestimate the
very human failing we all have of being disappointed when a matter goes on
appeal or worse, is overturned on appeal.
is probably the source of the story I read about a lawyer who died and found
himself in heaven. The lawyer was unhappy with the standard of his
accommodation. He complained to Saint Peter who told him that his only recourse
was to appeal against the accommodation he‘d been assigned. The lawyer
immediately advised Saint Peter that he intended to appeal. Saint Peter referred
him to one of his clerks who told the lawyer that he would be waiting at least
three years before his appeal could be heard. The lawyer protested that a
three-year wait was unconscionable. These words fell on deaf ears. The lawyer
was then approached by the devil who told him he’d be able to arrange an
appeal to be heard in a few days if the lawyer was willing to change the venue
to hell. When the lawyer asked why appeals could be heard so much sooner in hell
he was told, “We have all the judges”.
an important reason for writing judgments, if the least important, is so that
your findings of fact and legal reasoning are revealed for an appellate court to
Information to the public.
unlike politicians and almost every other organ of our society, don’t commonly
issue press releases quoting from the interesting and spicy parts of a judgment,
putting the appropriate spin of it with a phone number to ring to get more
background information on why the judge or magistrate chose to make the decision
the way he or she did. In order to communicate, a judgment must be clear,
precise, and say everything that needs to be said as to why a decision was
reached and no more.
with the parties.
parties and their lawyers, if they have them, need to know how and why a
decision has been reached. It is particularly important that the losing party
knows why he or she has lost the case. It is natural for someone who loses to
feel disenchanted with the legal process so it is important that the reason s
for judgment show that the losing party has been listened to, that the evidence
has been understood, the submissions comprehended and a decision reached. This
is particularly important in the case of an un represented litigant.
clarify your own thoughts.
have left this to the last because it seems to be the most important secret to
good judgment writing. We have all read poor judgments. We can list their
faults. They tend to be wordy, unclear, pompous and dull. Mark Twain, that great
storyteller, said that most cases were “chloroform in print”. How do we
avoid those outcomes? How do we become concise, clear, interesting and
my view the secret is clarity. If your ideas are clear then you will be able to
express them clearly.
of thinking and therefore expression has two stages: first structure and then
first with structure. I have a simple acronym for the structure of judgments.
It’s an acronym that is easy to remember because it’s something that all of
us get in our role as decision makers and that is – FLAC. What is FLAC other
than having to put up with the usual lawyer jokes, which transmogrify into judge
jokes or magistrate jokes once you are elevated to that position? You know the
sort I mean.
“What do you call a lawyer with an IQ of 40?” “Your Honour”
“What do you call a lawyer with an IQ of 50”? “Your Worship”; or
red-faced magistrate convened court after a long lunch. The first case involved
a man charged with drunk driving who claimed it simply wasn’t true. “I am as
sober as you are your worship” the man claimed.
magistrate replied, “Clerk, please enter a guilty plea. The defendant is
sentenced to 30 days.”
I’ am not taking about that kind of FLAC, I’ am talking about the structure
of a judgment.
for Application, and
basic structure of a judgment, modified to suit a particular situation, will
ensure that you order your own thoughts in reaching a just, and indeed one might
say, often inevitable conclusion.
for facts, of course, refers to the resolution of facts in issue in the case. In
a civil case the facts in issue are determined by the pleadings. The pleadings
will reveal what facts are not in dispute and what have to be determined. It is
important for the decision maker to resolve each of the facts in issue.
this point the judge or magistrate is telling the story of the case. As Lord
Denning effectively showed in many of his judgments, the recitation of the
facts, which are decided, need not be dull. It is the facts that have brought
the parties to court, the facts they have been unable to resolve for themselves.
What makes our work so interesting is the variety of facts that are brought to
us to resolve, the working and private lives of citizens into which we have a
brief but deep insight. This makes our work interesting and important. There is
no reason why we can’t communicate our decisions on the facts in an
second aspect of FLAC is the law. It is important to the resolution of any legal
dispute that we set out the relevant statute and case law. We set it out because
in clarifying for ourselves the right decision to come to we have to know what
the law is and to be able to state it clearly and persuasively.
third task is to apply the law to the facts. The parties and the public will
accept the decision much more willingly if they can see that the decision is the
result of the objective application of law to the facts that have been found.
leads, of course, to the conclusion. The conclusion should be the inevitable
result of the application of the law to the facts.
considering the facts and the law and the application of the facts to the law it
is important to clarify in your own mind exactly what it is that you have to
decide. This will save you a lot of time and energy and probably over a lifetime
of magistrates, many forests.
this basic structure it is useful, before you deliver the judgment to write down
each of the points in the judgment in summary form so that you can structure the
judgment in a clear and logical way. This is so whether the judgment is going to
be given orally, immediately or soon after the hearing of the case, or in
writing after being reserved.
As well as the structure that I have
discussed there are a number of basic rules of good writing, which is as much an
element of the skill of judgment writing as the force of your legal reasoning. I
use a simple book on style by Strunk and white called “The Elements of
Style”. It informs you as to the correct rules of grammar, syntax and
punctuation, when you are in any doubt. It also sets out elementary principles
of composition, matters of form, words and expression, expressions commonly
misused and an approach to style. Here is a list of them in on particular order.
Avoid the use of clichés. I always think a good way to remember this one
is to say to yourself to bite the bullet and avoid trite clichés like the
Be precise and to the point. Perhaps you don’t have to be as concise as
Judge Murdock sitting in the US Tax Court. It is reputed that a taxpayer
testified, “As God is my judge, I do not owe this tax”. Judge Murdoch
replied, “He is not, I am; you do.
example is Denny v Reader Industries. The opinion in the case contains very few
words beyond the following:
appellant has attempted to distinguish the factual situation in this case from
that in [a prior case]. He didn’t. We couldn’t affirmed.”
Use the active voice rather than the passive. The active is usually more
direct and vigorous than the passive: “I shall always remember my first day as
a Magistrate”. This is much batter than “My first day as a Magistrate will
always be remembered by me”. The latter sentence is less direct, less bold and
less concise. If the writer tries to make it more concise by omitting “by
me”, “ My first day as a Magistrate will always be remembered”, it becomes
indefinite: is it the writer or some undisclosed person or the world at large
who will always remember your first day as a Magistrate? This rule, like all
others, is not an invariable rule of practice but whenever you use the passive
you should consider the use of the active voice instead.
Be particular rather than vague. In his Philosophy of Style, Herbert
Spencer gives two sentences to illustrate how the vague and general can be
turned into the vivid and particular:
proportion as the manners, customs and amusements of a nation are cruel and
barbarous; the regulations of its penal code will be severe.”
proportion as men delight in battles, bull fights, and combats of gladiators,
will they punish by hanging, and the rack.”
Use simple and direct prose rather than abstruse wording. We are all
familiar with the scenes from “Yes Minister” where Sir Humphrey puts a
proposition to the minister, Jim Hacker, which, while technically correct, is
incomprehensible. For example, in one episode Sir Humphrey said:
there had been investigations, which there haven’t or not necessarily, or
I’m not at liberty to say whether there have, there would have been a project
team, which had it existed, on which I cannot comment, would not have been
disbanded, if it had existed, and the member returned to their original
departments, if indeed there had been any such members.”
another episode a frustrated Jim Hacker says to Sir Humphrey:
you give your evidence to the think tank, are you going to support my view that
the civil service is over manned and feather bedded, or not? Yes or No? Straight
Sir Humphrey replies:
minister, if you ask me for a straight answer, then I shall say that, as far as
we can see, looking at it by and large, taking one thing with another in terms
of the average of departments, then in the final analysis it is probably true to
say, that at the end of the day, in general terms, you would probably find that,
not to put too fine a point on it, there probably wasn’t very much in it one
way or the other as far as one can see, at this stage.”
In other words, “No”
In the end Jim Hacker is promoted to Prime Minister and
becomes more adept at understanding what Sir Humphrey means:
Minister, I must strongly protest in the strongest possible terms, my profound
opposition to a newly instituted practice which imposes severe and intolerable
restrictions upon the ingress and egress of senior members of the hierarchy and
which will in all probability, should the current deplorable innovation be
perpetuated, precipitate a constriction of the channel of communication and
culminate in a condition of organizational atrophy and administrative paralysis
which will render effectively impossible a coherent and co-ordinate discharge of
the function of government within her Majesty’s United Kingdom of Great
Britain and Northern Ireland”.
Hacker replies, or rather translates:
“You mean you’ve lost your
obvious errors. A number of frequent errors can be seen in the following
rather amusing list:
Subjects and verb always has to agree.
Make each pronoun agree with their antecedent.
Just between you and I, case is important too.
Being bad grammar, the writer will not use dangling participles.
Join clauses good, like a conjunction should.
Don’t write run-on sentences they are hard to read, you should
Don’t use no double negatives. Not never.
Mixed metaphors are a pain in the neck and ought to be thrown out the
A truly good writer is always especially careful to practically eliminate
the too frequent use of many adverbs.
In my opinion, I think that an author when he is writing something should
not get accustomed to the habit of making use of too many redundant unnecessary
words that he does not actually really need in order to put his message across
to the reader of what he has written.
About them sentence fragments. Sometimes all right.
Try to not ever split infinitives.
Its important to use your apostrophe’s correctly.
Do not use a foreign term when there is an adequate English quid pro quo.
- Try to be interesting. Clear thinking is the key to
clear writing. A clearly expressed judgment allows the interest of the
subject matter and the exposition of legal reasoning. As for being
entertaining, not all of us can aspire to the wit and directness of by now
famous Samuel B. Kent, United State District Judge of the Southern District
of Texas in Galvaston. His many decisions can be found on the internet. I
Bradshaw v Phillips, his Honour first sets out the facts. It was an ordinary
personal injury case where the plaintiff was injured in the course of his
employment while working as a seaman. The defendant applied for summary
judgment because of a statute of limitation. Having set out the facts his
Honour went on the say:
proceeding further, the court notes that this case involves two extremely
likable lawyers, who have together delivered some of the most amateurish
pleadings ever to cross the hallowed causeway into Galvaston, and which leads
the court to surmise but one plausible explanation. Both attorneys have
obviously entered into a secret pact complete with hats, handshakes and cryptic
words to draft their pleading entirely in crayon on the backsides of gravy
stained paper placemats, in the hope that the court would be so charmed by their
childlike efforts that their utter dearth of legal authorities and their
briefing would go unnoticed. Whatever actually occurred, the court is now faced
with the daunting task of deciphering their submissions.
With big chief
tablet readied, thick black pencil in hand, and a devil-may-care laugh in the
face of death, life on the razor’s edger sense of exhilaration, the court
The court then went on to set out the law in relation to summary
judgment, what the arguments of the parties were and then the application of the
law to the facts. Finally the court concluded that the statute of limitation
applied and summary judgment was granted. His Honour concluded:
“After this remarkably long walk
on a short legal pier, having received no useful guidance whatever from either
party, the court has endeavored, primarily based on its affection for both
counsel, but also out of its own sense of morbid curiosity, to resolve what it
perceived to be the legal issue presented. Despite the waste of perfectly good
crayons seen in both parties briefing (and the inexplicable odour of wet dog
emanating from such) the court believes it has satisfactorily resolved this
matter. Defendant’s motion for summary judgment is granted.”
The judge went on however, to sound a note of caution.
There were two defendants in this matter so the plaintiff retained a cause of
action against the remaining defendant, Unity Marine Corporation. The
plaintiff’s lawyer was cautioned against treating this defendant too lightly,
as his Honour said:-
“It is well known around these
parts that Unity Marine’s lawyer is equally likable and has bee writing
crisply in ink since the second grade. Some old times even spin yarns of ability
to type. The court cannot speak to the veracity of such loose talk, but out of
caution, the court suggests the plaintiff’s lovable counsel had best upgrade
to a nice, shiny number 2 pencil or at least sharpen what’s left of the Stubbs
of his crayons for what remains of this heart stopping spine tingling action.
In either case, the court caution plaintiff’s counsel not
to run with a sharpened writing utensil in his hand-he could put his eye out.”
Most of us conscientiously try to write clear, if slightly
less entertaining, judgments. They are, after all, as Aeschylus shows in The
Eumenides, a means of achieving an objective that is universal: the just
resolution of conflict.
Justice (R) Muhammad Bashir Jehangiri
judgment is not an ornate diction of
Fancies of a brain, it is strictly an oracle Of findings arrived at by a trying
mind. One way, it wraps justice in word; the Other ways it exposes worth of the
WHAT IS A
In its broadest sense a judgment is the
decision or sentence of the law given by a court of justice or other competent
tribunal as a result of proceedings instituted therein, or the final
consideration and determination of a court on matters submitted to it in an
action or proceeding, whether or not execution follows thereon. More
particularly it is a judicial determination that, on matters submitted to a
court for decision, a legal duty or liability does or does not exist, or that,
with respect to a claim in suit, no cause of action exists or that no defence
exists. In a broader sense here defined, a decision of any court is a judgment.
In a narrower sense the term "judgment" is limited to a decision of a
court of law. Under most codes of procedure, judgments are defined in substance
as the final determination of the rights of the parties in an action or
proceedings. In America unlike Pakistan, the terms "judgment" and
"decree" are more or less synonymous and inter changeable in code
practice. The terms "judgment" and "order" in their widest
sense may be said to include any decision given by a court on a question or
questions at issue between the parties to a proceeding properly before the
A judgment is the judicial act of a Court by
which it accomplishes the purposes of its creation. It is a judicial declaration
by which the issues are settled and the rights and liabilities of the parties
are fixed as to the matters submitted for decision. In other words, a judgment
is the end of the
law; its rendition
is the object for which jurisdiction is conferred and exercised, and it is the
power by means of which a liability is
enforced against the debtor's property. A judgment constitutes the considered
opinion of the court and is a solemn record and formal expression and evidence
of the actual decision of a law-suit.
As a general rule, courts are not constituted
for the purpose of making advisory decrees or resolving academic disputes. A
proceeding seeking an advisory opinion or judgment will not find favour at the
hand of the judiciary. A mere advisory opinion upon an abstract question is
obviously not a judgment at all when no parties are to be bound, and the rights
of no one are directly affected.
The terms "judgment" and "order" in their widest
sense may be said to include any decision given by a court on a question or
questions at issue between the parties to a proceeding properly before the
It is essential to the validity of a judgment
that it be based on, and be in conformity with, recognized principles and
fundamentals of law. Where statutory powers are conferred on a court of inferior
jurisdiction, and the mode of executing those powers is prescribed, the course
pointed out must be substantially pursued, or the judgment of the court will be
void. The validity, force and effect of a judgment must be determined by the
laws in force at the time and in the State or country where it was rendered. It
is essential to the validity of a judgment that it be the sentence or
adjudication of a duly constituted court or judicial tribunal. Judicial powers
are sometimes conferred on tribunals not technically courts, and decisions by
such tribunals, in the exercise of powers thus conferred, are considered as
judgments. According to some authorities, it is essential to the validity of a
judgment that it be rendered by a court sitting at the time and also in the
place authorised by law, the tribunal not being otherwise a court in any legal
sense, and the proceedings being, therefore, coram non-judice. In some cases,
however, it has been held that the fact that a term of court at which a judgment
was rendered was held at a time other than that prescribed or authorised by law,
while rendering the judgment erroneous and constituting ground for its reversal,
does not render the judgment void; but a contrary view has also been taken and a
judgment rendered under such circumstances has been held to be void. It has been
held that the mere fact that the court was held at a place other than that
directed by law will not of itself render the judgment void, as where the court
errs with respect to the location of the country seat. Judgments should be
rendered in open court and not in chambers. In Pakistan, according to section
2(9) of the Code of Civil Procedure, judgment means the statement given by the
Judge of the grounds of a decree and order, and Order XX, Rules 1 to 6, Civil
Procedure Code, lay down the law in Pakistan relating to the pronouncements,
signing and contents of judgments. These relate to judgment of civil courts. As
regards criminal courts, sections 366 and 367 of the Code of
Criminal Procedure, 1898 lay down the mode of delivery, language and contents of
15 to 20 of the Code of Civil Procedure prescribe the place of suing and section
21 lays down as to when objection to territorial jurisdiction is to be taken.
Chapter XV deals with the place of inquiry or trial of criminal proceedings and
trials and section 531 Code of Criminal Procedure, 1898 states when proceedings
in wrong place can be set aside.
Illegal constitution of the court with respect
to the Judges sitting renders the judgment absolutely void. In the absence of a
constitutional or statutory provision, forbidding a disqualified Judge from
acting, a judgment rendered by a disqualified Judge is voidable but not void. It
is essential to the existence and validity of a judgment that the decision shall
have been rendered in an action or proceeding before the court, in some form
recognised and sanctioned by law. Where the jurisdiction of a court depends on
the amount in controversy, a judgment for a sum in excess of the amount over
which the court has jurisdiction is void.
Judgment has to self-contained and it must show that the court has made an
independent application of its mind to the facts of the case and the evidence
adduced by the parties. It must reveal a consideration of such evidence and the
conclusions to which such evidence would persuade. Where the finding, in a
criminal case, is as to the guilt of some of the accused while to the innocence
of others, the finding has to be supported by reason.
AND CONTENTS OF JUDGMENTS
Strict formality ordinarily is not essential
to the validity of a judgment, and substantial compliance with statutory
requirements is sufficient.
A judgment should not decide more than what is
necessary in law under which the proceedings have been taken. For example, in a
proceeding under section 145 of the Code of Criminal Procedure, the Magistrate
while deciding question of possession, cannot define shares of co-sharers. He
has to find out only as to who was in actual possession.
In a criminal case, with regard to the
conclusion that accused cannot be tried under Acts providing for treatment and
training or rehabilitation of youthful offenders, the court must record special
reasons for not doing so.
When the defence musters up a number of
witnesses, the court has to be extremely cautious and careful to enter verdict
of guilty. It may do so only if the complainant's version is supported by some
clinching circumstance of such character and quality as may reasonably assure
the judicial mind about the truth of the real position against the accused.
Stating inclination merely is not sufficient, but the court must give
reasons for disagreeing with defence contentions. When the judgment neither gave
reasons for disagreeing with defence contentions nor adverted to the patent
lapses of the investigations, it was held that accused were entitled to benefit
of doubt. The defence evidence is as important as the judgment cannot be said to
In a case where truth cannot be separated from falsehood on account of
the two being inextricably mixed up, the court cannot make out any absolute new
case for the prosecution by conjecture. While separating the grain from the
chaff, the court should not break the grain and mix the same with chaff.
The proper course is to scrutinize the
prosecution evidence first and then to pass on the defence case. However, the
reverse course, though irregular would not vitiate judgment.
JUDGMENT SHOULD BE COMPLETE IN
A judgment should be complete in itself and
contain within its four corners the mandate of the' court, without extraneous
references, and leaving open no matters of description or designation out of
which contention may arise as to the meaning. It should not leave open any
judicial question to be determined by others.
Although it has been held that, as a matter of
practice, established precedents with respect to the language of a judgment
should be followed, apart from statute no particular form of words is necessary
to constitute a judgment, provided the words used are such as to indicate a
final determination of the rights of the parties and the relief granted or
Except as statute or court rule may otherwise provide, the judgment of a
court of general jurisdiction need not, as a general rule, contain a recital of
the jurisdictional facts.
A JUDGMENT MUST BE DEFINITE AND CERTAIN
A judgment must be definite and certain in
itself, or capable of being made so by proper construction. It must fix clearly
the rights and liabilities of the respective parties to the cause.
As a general rule, a judgment must not be
conditioned on any contingency; but in a number of instances, as where equitable
relief is awarded, conditional judgments have been sustained.
As a general rule, a judgment should not be in
the alternative, although under some circumstances, such as in actions for the
specific recovery of property, an alternative judgment may be proper.
Statements which are not necessary to the
decisions which go beyond the occasion and lay down a rule that is unnecessary
for the purpose in hand (usually termed 'dicta') have no binding authority on
another court, though they may have merely persuasive efficacy. Rights of
property should not be upset, however, merely because, when historically traced
through the reports of centuries, they rest upon a dictum, nor is it right to
distrust a practice that follows on dicta when it is the practice and not the
dicta that forms the binding authority. Even dicta of individual members of the
House of Lords (in England), although of great weight, have been held not to be
of binding authority; but, when dicta have been expressed unanimously by all the
Judges of Divisional Court, it would not be seemly for the Judges of another
Divisional Court not to follow them. Interlocutory observations by members of a
court during the argument are not judicial pronouncements and do not decide
JUDGMENT BASED ON EVIDENCE
- FRAGILITY OF
Very few of us are careful and accurate
observers. Those of us who are are at our best when we can check our
observations by repetition, which is exactly what is impossible in most matters
where human testimony is required in court. The tricks played by our senses are
terrifying to the seekers of truth. The evidence which is given is often not
even a recollection of the events, but only a recollection of what the witness
said about it soon after. A policeman will quite often be able to relate only
what appears in his note, not by any means the least satisfactory
kind of evidence. If one seeks to take him out of his framework, and to re-see
the events in his mind's eye, so some detail, not regarded at moment but turning
out to be important, can be recovered, in nine cases out of ten he cannot do it,
though he honestly tries. His memory is of his note, of an observed happening.
It needs no psychologist to show that, although instances occur of delayed
reproduction, memory generally fades with the passage of time, and that, when a
witness is required more than once to recall an event, his act of recalling on a
subsequent occasion may be merely an imperfect memory of what he said on an
earlier. If this is true, it is an interesting commentary on the legal rule
whereby the witness's statement, given in court perhaps months after the event,
is the real evidence while, his original proof of evidence, given perhaps within
hours of the event, and his deposition at the preliminary hearing, given a few
days or weeks after the event, are referred to only for the purpose of
contradicting him and not as independent evidence. The legal insistence upon the
necessity for an oath and upon oral statement in court appears in this light to
be irrational. It may also be pointed out that the rule excluding previous statements
as evidence of the truth of the facts stated is fundamentally inconsistent with another rule, namely, that a witness who professes that he has forgotten the details of an event can refer to a memorandum of it
which he made previously (not on oath, or subject to cross-examination) and have
this memorandum accepted as part of his evidence.
a privilege to be with you. The reason, which prompts me to be amongst
you, as often as I can spare time, is to get the feed back to what is
happening at the hands of, and to the judiciary? What the future
judiciary has in store for itself? How best the judiciary can improve
its image and its performance? How best it can command the confidence
and respect of the people? How best it can adapt itself to the
requirements of the modern age?
I assume and proceed on
the assumption that you have read all the four papers written by learned
judges on the Art of Judgment Writing and discussed in earlier courses.
Four such papers were made available to me and I have read all of them.
If you have not so far read them or omitted to read anyone of them
please make it a point to read them before you complete your period of
training here. Do not allow earnest efforts earlier made for your
benefit by persons whose time is precious, go waste and un-noticed by
you. Why deny yourself an opportunity of adding variety and dimension to
your knowledge, on a subject so relevant and so abiding that you will
have to directly or indirectly concentrate on it throughout your service
career and may be even after that. As you move up, hearing of the
arguments for hours, for days, may be for months will not be a problem.
The real problem starts when one is called upon to register the impact
of those arguments, assimilate them, analyse them, reproduce them with
precision and accuracy, and draw conclusions sound in law, consistent
with the value system prescribed and envisioned by the society. Enormity
of the burden increases in proportion to the precision and conciseness
achieved in doing so.
Fortunately, for us the basic and broad requirements of a judgment are
prescribed and formalized. On the civil side, judgment has been defined
in clause (9) of section 2 of C.P.C.; distinguished from a decree in
clause (2) of section 2 C.P.C. The structure of a trial court judgment is indicated in order xx rule 4, sub-rule (2) and that of a small causes
court in sub-rule (1) of the same rule. The structure of the appellate
judgment is indicated in order 41 Rule 31 C.P.C. The reliefs to be
considered are interest (section 34), costs (Section 35) and
compensatory costs (section 35-A). The extent of relief to be granted by
the appellate court is provided on Order 41 rule 33. On the
criminal side the requirements of a judgment at regular trial are
indicated in section 366 of Cr.P.C. and of a summary trial in sections
236 and 264 of Cr.P.C. These provisions of law stand supplemented by
Rules and Orders approved by the High Court. For civil courts,
these instructions are contained in Chapter 11-A Volume I, for the
criminal courts in Chapter I-H of volume III. It is a different matter,
that you will be the luckiest man in Pakistan if you are able to get an
official print of any volume of High Court Rules and Orders. Even the
Supreme Court has difficulty in collecting and making avilable all the
five volumes at one time. This is extremely unfair to those who are
required to administer the law and follow these instructions. The
Supreme Court has the distinction of being empowered by the Constitution
in express words (Article 186) to do complete justice.
Nowhere you will find
prescribed at one place the difference between a criminal case a civil
case, the difference in attitude and approach in handling them and
ending up with the judgment. You should note however, one distinctive
feature, very relevant for judgment writing. It is that the rule of
preponderance of evidence prevails in civil matters while that of beyond
reasonable doubt in a criminal case. See to it that your judgments
follow this requirement.
rule of receiving evidence of analyzing it and drawing inferences from
it remain the same but the overall effect is materially different.
Further, in criminal cases this requirement of proof beyond
reasonable doubt should not take one into the realm of possibility and
impossibility. On should confine oneself, while seized of criminal
matters to the realm of probabilities arising out of an over-view of the
whole case without too much emphasizing any single factor.
The judgments, on account of their style and language have been
classified into the following broad categories:-
Magisterial or imperative.
Laconic or sententious.
Conversational or homely
Refined or artificial.
Demonstrative or persuasive.
Tonsorial or agglutinative.
For understanding these
categories fully and also for finding how interesting and elevating
judicial work can become, I would commend to you at this stage of your
service career a book named voices in court, a treasury of the law
edited by William H. Davenport. It covers all aspects of judicial work.
What is the object of
writing judgment in the manner prescribed by law. Robson quoting Cecil
Carr provides it in the works that follow:-
ought of course to be given for legal decisions, otherwise the students
cannot learn the law, practitioners cannot find arguments, parties
cannot feel that their cases have had serious attention and courts of
appeal have nothing to upset or confirm".
the two writ petitions filed in the High Court, the court recorded in
one the order " This writ petition is rejected", in the other
"this writ petition is dismissed". The Supreme Court (PLD 1959
S.C. 272) observed:
are two basic objections to this procedure (1) the Supreme Court has no
idea of the grounds on which the application was dismissed and is thus
deprived of the High Court's opinion and (2) the non-suited party has no
means of knowing that the questions raised
by him were considered by the High Court."
In another case a writ
petition was dismissed with the order " This application is rejected, as
there is no substance in it". The Supreme Court observed "such an
order, we regret to say, does not disclose a proper application of the
mind of the High Court to the merits of the case that was before it".
If you have ever noticed the gown that Judges are required to wear, you
will find the sleeves stretch out beyond the limits of the arm and hand
down. This is so as explained in (PLD 1969 S.C. 278 at page 292) in
words, which follow:
is a well known adage that a Judge must wear all the laws of the country
on the sleeve of his robe".
it were so in an examination all, it will be a case of being caught red
handed. However, it is permissible in a Court room.
There is a value system, which permeates all Judgments. I will
illustrate it by two cases one came before the Supreme Court last week
and another one thrown up in my judicial hierarchy about thirty years
ago, many in between.
As Incharge National Saving Centre, a Clerk, amongst other derelictions.
Showed in the records deposit of Rs. 1400/- on 31.1.1980 which was in
fact made on 6.1.1980, thus amounting to tempering misappropriation of
Paid out an amount of Rs. 4000/- on 13.8.1979 from an account which had
a balance of rupees five only but showed the withdrawal on 19.1.1980
when the deposit of rupees 4000/- was also shown made therein thereby
causing loss of money to Government for that period.
His record of service
showed that he had been warned several times. he was earlier proceeded
under discipline rules twice, ending once in with-holding of increment
and censure in the other, both in 1982.
Before the departmental authorities he admitted the factual aspect of
the charges but explained that due to confidence in the lady account
holder who was his relative he overpaid the amount and kept on reminding
her and when she repaid the amount on 19.1.80 he redeposited the same.
The relevant portion of
the judgment of Service Tribunal announced on 10.1.1988 reads as
The learned counsel for the appellant has not pressed the appeal on
merits but he has contended that there was no misappropriation of
Government money and the lapses on the part of the appellant reflected
in the charge sheet did not call for the
onerous penalty of removal from service.......
find from the allegation contained in the charge-sheet that there was
late posting of the money in the relevant registers, but there was no
misappropriation of the funds. We agree with the learned counsel
for the appellant that the penalty of removal from service for such
allegations was excessive. Since the appeal has not been pressed on
merits we dismiss it as such but modify the penalty and convert it from
removal from service to that of stoppage of three consecutive increments
with cumulative effect. The appellant shall be reinstated in service
forthwith with all other admissible back benefits".
You should know that
under Article 212 (3) of the Constitution an appeal against the judgment
of the Service Tribunal lies only on a question of law public
importance. Leave to appeal was granted to examine "whether even after
admitting temporary embezzlement of funds in a financial institution and
not pressing the appeal on merits, the Service Tribunal could
justifiably reduce the punishment to stoppage of increment and continue
him in service".
When the appeal was
argued the debate centred round the question whether the Service
Tribunal Judgment at all raised any
of law of public importance to justify intervention of the Supreme Court
under Article 212 (3). The thirty years old case was criminal matter. A
group of girls of a local college had gone to Hiran Minar. A group of
boys also gone there. The boys molested the girls. A criminal case was
got registered. The trial Magistrate acquitted all the boys holding that
the girls should not have gone to Hiran Minar because their
going there in group in that manner incited and provoked the boys. The
judgment was of course set aside when it was brought to the
appellate/supervisory court on the ground of distorting the value system
prevalent and envisioned by the law. It is a reported judgment of the
In handling the cases at the judgment stage, there are certain things
which must be avoided. The first is that when too many
adjournments are granted on the ground that the learned counsel is not
prepared for arguments, the conclusion drawn is that either the Court
has not exercised proper control over the conduct of the case has been
over-indulgent or that such adjournment relates to the delay on the part
of the Court in preparing the judgment and the unpreparedness of the
counsel to argue the case is used as a veil. In either case it reflects
adversely on the presiding Officer of the Court. The second thing
to be taken care of is that all the grounds taken up in the Memo of
appeal or at the time of argument should find mention in the judgment
and there should also be an express mention of the grounds which though
taken at one stage or the other during the course of the hearing
but were abandoned finally. The appellate courts ordinarily lay the
blame on the counsel for not urging the grounds at the stage of
arguments if it is not dealt with in the judgment. To me it appears to
be unfair to the counsel because they have no control over the writing
of the judgment. Thirdly, the value system is under great
challenge and in doubt these days. That doubt should not find a place
directly or indirectly in the judgment. The judgment should
confine itself to the law and the value system enshrined in the law
Independently of it no attempt should be made to superimpose either
individual or any other value system. Fourthly , your judgment
should be as simple, as short, as direct and as intelligible to as large
section of the population as you can make it. The days are gone when the
people had time to read a long judgment and appreciate all its niceties.
More and more people want to understand the impact of judicial
adjudication because as Dean Roscoe Pound once remarked, the people
understand the question litigated and every one has ready answer for it
also but what they do not understand is such tardy proceedings and
involved judgments. While visiting the training institutions in America
in 1987 I found the trainees receiving instructions on the subject of
judgment writing with the use of word processor and other high-tech
equipment. On my inquiry as to who was instruction them in judgment
writing, I was told that it was a Professor of an Engineering University
dealing with the subject or report writing. On enquiring further about
it I was told that because for seeking re-appointment the Judges have to
go through an election they must through their judgments reach the
people and satisfy them with regard to the justness, correctness and
fairness or their adjudication. The reason may not hold good in our
country but if we want to make up hold good in our country but if we
want to make up for the prevailing illiteracy and ignorance, it is one
of the ways viz. to simplify our instruments and media so as to reach as
many people as is possible.
PRINCIPLES OF JUDGMENT WRITING IN CRIMINAL TRIALS
Mr. Justice M. Mahboob Ahmed
The word 'judgment' has
also been defined in some of the reported cases. In Nand Lal V. Emperor
(AIR 1936 Bombay) which was later on followed in Damu V. Sri Dhar (1948)
21 Cal 121, it was defined as under:-
judgment is the expression of the opinion of the Judge or Magistrate
arrived at after due consideration of evidence and of arguments, if
any, advanced before him."
has been looked at from another angle in Surya Rao V. Sathihiraju (AIR
1948 Mad. 510) in following manner:-
civil cases, it is the final order passed in a suit instituted in a
court, in criminal cases it is a final order in a trial terminating
either in a conviction or acquittal of the accused.”
The judgments may be classified as follows:-
Class of Court - Civil, Criminal, Revenue;
Stage of list - judgments of trial Courts, appellate Courts or Courts
Nature of trial - regular or summary;
Nature of dispute - original causes or miscellaneous proceedings.
Generally speaking, there are civil,
criminal and revenue courts and the type of judgment would differ in
On the criminal side,
with which we are concerned at the moment there are Courts of Sessions
Judges, Additional Sessions Judges, Assistant Sessions Judges and the
Magistrates of the First, Second and Third Class.
to the stage of litigation there are judgments of trial Courts,
appellate Courts and Courts of revision. Even in appellate judgments,
there is consideration difference in the judgments of first appeal and
those of second appeal.
or Summary Trial
Judgments may be
delivered after regular trial or after a summary hearing. On the
criminal side, summary jurisdiction is exercised by Magistrates under
section 260 of the Code of Criminal Procedure. Judgments in regular
trials are full and detailed while those under summary trials are brief
statements of reasons in support of findings. Likewise appeals are
generally decided after full hearing. They are, however, also dismissed
summarily under section 421 of the Code of Criminal Procedure.
Despite these and some
other distinguishing features, there are some factors which are common
to all kinds of judgments.
and Requirements of a Judgment
Facts submitted by the prosecution and accused;
Points for determination;
Decision on these points;
Reasons for the decision;
Final order convicting or acquitting the accuse;
Awarding sentence in case of conviction;
Signature and the date of decision and announcement.
Reference in this context can be made to sections 366 and 367 of the
Code of Criminal Procedure. The salient features of section 367 ibid
are: (1) that the Judge who records the evidence should record the judgment
or his succeeding Judge or Magistrate should do so. (2) Then
every judgment of a Criminal Court must contain a clear statement of
the points for determination, the decision thereon and the reasons
therefore. In a case from Indian jurisdiction (AIR 1945 Nag.411) it was
very aptly observed that the judgment should state sufficient
particulars to enable a court of appeal to know that facts (of
prosecution case) are proved and how? Mere copying the contents of the
FIR, reproducing the entire evidence and recording conviction of an
awarding sentence to or acquitting the accused does not satisfy the
requirements of section 367 ibid (3) The judgment shall ten be
signed and dated in open Court by the Presiding Officer be, it a
Magistrate, an Additional Sessions Judge or a Sessions Judge. (4) The judgment
shall then be pronounced in open Court either immediately
after the termination of the trial or at some subsequent time of which
notice shall be given to the parties or their counsel. (5) The accused
shall, if in custody be brought up, or if not in custody, be required by
the Court to attend to hear judgment delivered, except where his
personal attendance during the trial has been dispensed with and
sentence is one of fine only or he is acquitted, in either of which case
it may be delivered in the presence of his Counsel. (6) If the accused
is convicted of an offence of Qatl-e-Amd, or Qatle-i-amd not liable to
Qisas or Qatl-i-Shibh-i-Amd or Qatl-e-Khata and so on so forth the judgment
shall record conviction under one of these offences with the
relevant section of the law and shall also award sentence provided for
the offence or any legal sentence provided for.
The following rules should be kept in mind
regarding the language of a judgment: -
A judgment should be written in the language of the Court or in
It should be plain and easily understood. If the judgment is in the
English language, the use of oriental words should be avoided, except
technical, revenue or law terms. Poetic allusions should be avoided.
The judgment should not be prolix or verbose "A prolix judgment is a torture to write and a torture to read".
The language should be sober and temperature and should not be
satirical. There should be no joking in a judgment. Judges should be
dignified and restrained in expression of opinion maintaining
impartiality and discarding bias.
by Presiding Officer
A judgment should not be written by a
clerk and signed by the Court. It should be written by the Presiding
Officer of the Court or from his diction. Section 367(1) Cr.P.C. makes
it permissible to dictate orally to another, but in that case every page
of the judgment should be signed.
If an accused is or if there are more than one the accused are convicted
of Qatl-e-Amd shall, under section 302 P.P.C. and subject to the
substituted Chapter XVI of the Pakistan Penal Code, be:
Punished with death as qisas.
Punished with death or imprisonment for life as tazir' having regard
to the facts and circumstances of the case, if the proof in either of
the forms specified in substituted section 304 is not available; or
Punished with imprisonment of either description for a term which may
extend to twenty-five years, where according to the Injunctions of
Islam the punishment of qisas is not applicable.
In case the Court accepts the plea of Afw (waiver) in Qatl-e-Amd within
the contemplation of substituted section 309 P.P.C. by a 'wali' or
'aulia', as the case may be, then the Court shall also determine, with
reasons therefore, as to whether it should be waiver simpliciter or
Diyat should also be imposed. There are cases specified in the Ordinance
where there is no Diyat. In such cases the court may award Arsh
(compensation). If it is so decided then the Court would be required to
award it with reasons therefore and quantum thereof. Qatl-e-Amd not
liable to Qisas or other cases in which Qisas for Qatl-e-Amd cannot be
enforced falling respectively under substituted sections 306 * 307
P.P.C. are required to be differentiated in the relevant part of the judgment
and dealt with accordingly both in conviction and
sentence.Likewise distinction has to be drawn in the judgment in cases
of hurt liable to Qisas and those not liable to Qisas.
Substituted section 338 E lays down that subject to the provisions of
Chapter XVI of PPC and section 345 of the Code of Criminal Procedure,
1898, all offences under the aforesaid Chapter may be waived or
compounded within the contemplation of substituted sections 309 &
310 P.P.C. The Presiding Officer would be required to record in the judgment
whether the 'wali' waiving or compounding the offence was
competent to do so and also that he was doing so voluntarily.
Determination of Facts and the Application of Law
duties of a Judge are two-fold: the ascertainment of facts and the
application of law, including the consequent punishment. The
determination of facts also involves the problem of admissibility,
cogency and effect of evidence and also the question of evidence and
method of the Judge.
The Judge has to consider
the relevant law on the Statute Book and see which section or sections,
or a part of section applies to the case in hand.
of evidence covers a major portion of the judgment and the right
conclusion or findings depend on question of fact. Therefore, proper
care and attention should be paid to this important part of the judgment.The Judge or Magistrate has to base his findings on evidence,
strictly in accordance with the Qanun-e-Shahadat. He cannot use his own
knowledge about the character of witnesses or import into his judgment facts other than those brought through proper evidence. Obviously he
should not base his findings on conjectures.
In criminal cases the court has to punish the offender as the law of the
country defining offences or crimes ordains a Magistrate or a Judge to
do so. There are several theories of
punishment such as the retributive, preventive, deterrent and
reformative under the responsibility category and the educative and
treatment theories, which fall under the irresponsible category. Since
this aspect is beyond the scope of our concern, therefore, I would skip
over it. Punishment in criminal cases under
the Ordinance have been covered earlier, therefore, it need not be
reiterated here. Judgments in cross cases
have been a matter of concern in appeals. It must be remembered that
charge, evidence and judgments in cross cases should be separately
recorded. Each judgment should be supported by the evidence on that
file and no reference of evidence either ocular or circumstantial
(including documentary) may be made which has been recorded on the file
of the cross case unless its primary or secondary evidence has been
brought on the file in hand.
Judgment writing is an art by itself and cannot possibly be acquired in
any perfection without adequate knowledge, long practice and experience.
Justice Shafiur Rahman
In common parlance 'decision' or 'judgment' is the pronouncement of the
conclusion drawn by the Court on the controversy involved in the matter
before it. As defined in the Encyclopaedia of the Laws of England,
"judgment is the determination of a Court declaring the rights to
be recognized and the remedies to be awarded between the parties upon
fact found by the Court or Jury, or admitted by the parties or upon
their default in the course of proceedings instituted for the redress of
a legal injury. According to Chambers Twentieth Century Dictionary judgment
means "act of judging; the comparing of ideas to elicit
truth; faculty by which this is done, the reason; opinion formed;
discrimination; good taste; sentence; condemnation. "Stround says,
"Judgment is the sentence of the law pronounced by the Court upon
the matter contained in the record and the decision must be one obtained
in an action."
Judgment is thus a decision or sentence of a Court in a legal
proceedings coupled with the reasoning therefore. An action in law or
the legal proceedings is essentially aimed at providing justice to the
aggrieved persons. Justice is not something one can see. It is the
product of a Judge's spirit and not merely his intellect. As Lod Denning
would call it, "the nearest we can get to define justice is to say
that it is what the right minded members of the community those who have
right spirit within them could believe to be fair."
The true philosophy of an ideal judgment is inseparable from the
concept of justice. In other words, the ultimate object of the decision
or judgment of a Court is the dispensation of justice.
It, therefore, appears appropriate to know succinetly the meaning of the
word 'justice'. It might be of interest and my preference would
obviously be to first go to the very basic source of Islamic
jurisprudence i.e. Holy Qur'an to see what concept of justice can be
derived therefrom. In Qur'an, the mandate regarding justice which leaves
no room for deviation is an under: -
Allah doth command you
render back your Trusts
when ye judge
man and man,
ye judge with justice:
teaching, which He giveth you!
Allah is he who heareth
seeth all things.
We have sent down
thee the Book in truth,
thou mightest judge
men, as guided
Allah: so be not (used)
an advocate by those
betray their trust:
Aye who believe!
justice, as witnesses
Allah, even as against
or your parents,
your kin, and whether
be (against) rich or poor:
Allah can best protect both.
not the lusts
your hearts), lest ye
and if ye
(justice) or decline
do Justice verily
is well acquainted
all that ye do.
O ye who believe!
Allah, as witness
fair dealing, and let not
hatred or others
you make you swere
wrong and depart from
Be just: that is
to Piety: and fear Allah,
Allah is well acquainted
all that ye do.
thou judge, judge
equity between them.
Allah loveth those who judge in equity
The sayings of Holy Prophet are also replete with guiding principles
which emphasise the need for being just and perfectly honest.
'Justice' has been defined in almost similar terms in most of the
dictionaries of the world. This word as it finds mention in Webster's
New International Dictionary, means:
maintenance or administration of that which is just; just treatment;
merited reward or punishment; that which is due to one's conduct or
motive; administration of law; the establishment or determination of
rights according to the rules of law or equity; conformity to truth or
right reason; rightfulness."
Encyclopaedia Britannica, it has been defined as:-
term used in the abstract for the quality of being or doing what is
just i.e. right in law and equity."
Black's Law Dictionary, it finds mention in the following words:-
constant and perpetual disposition to render every man his due; the
conformity of our actions and our will to the law."
Obsborn's Concise Dictionary 'Justice' means:-
upholding of right; and punishment of wrongs, by the law; the constant
and perpetual wish to give each man hid due."
From the above, the precise conclusion that can be drawn is that
'justice' in itself is a virtue. In essence it means constant and
perpetual disposition to render to every man his due and is, therefore,
an act of rendering what is right and equitable to one who has suffered
Permit me to say, 'Justice' is the greatest interest of man on earth. It
is the ligament which holds civilized societies as nation and then
civilized nations together. Wherever the temple of justice stands and as
long as it is duly honoured there is a foundation for social security,
general happiness, and for the improvement and progress of our race. And
whoever labours on this edifice with usefulness and distinction and
whoever clears its foundation, strengthens its pillars or contributes to
raise its august dome still higher in the skies, connects himself in
name and fame and character with that which is and must be as durable as
the frame of human society.
Coming now to the legal fiction of the subject under discussion, I may
refer to various provisions of law governing the decision and judgment.
Section 2(9) of the Civil Procedure Code, 1908 defines
"judgment" as a statement given by the Judge of the grounds
of a decree or order. Order as defined in Section 2(14) of Civil
Procedure Code 1908 is a formal expression of the decision of a civil
court which is not a decree. And 'Decree' is the formal expression of an
adjudication, which as far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or
any of the matters in controversy in the suit.
Order XX Rule 1 of Civil Procedure Code provides that the Court, after
the case has been heard, shall pronounce judgment in open Court, either
at once or on some future day of which due notice shall be given to the
parties or their pleaders. Rule 3 ibid says that the judgment shall be
datd and signed by the Judge in open Court at the time of pronouncing it
and, when once signed, shall not afterwards be altered or added to, save
as provided by Section 152 or on review.
The accumulative effect of these provisions and the general
comprehension of what has been stated above is that a judgment in Civil
suit should contain:-
the concise statement of the case;
the points for the determination of issues;
the decision of court with regard to the issues; and
reasons for the decision.
Accordingly, judgment is supposed to comprise the points for
determination and the findings thereon along with the reasons for the
findings. In the absence of these points it is no a judgment in the eye
of law. The expression of reasons is, in fact, a demonstration that
justice is done and that Judge had applied his mind to the facts and
arguments in the case before arriving at the conclusion. Hence, the judgment
should, not only state the evidence, but also the findings and
how it supports the findings. Even an exparte decree or order should be
self-explanatory. Omission to give reasons for the findings is a
material irregularity amounting to an illegality, which may vitiate an
otherwise just decision.
Appreciation of evidence is cardinal principle of dispensation of
justice. The acceptance or rejection of evidence should depend upon the
consistency it has with the case of the party and on the test of
cross-examination as well as its co-relation with other circumstances of
the case. Instead of simply enumerating the evidence, it has to be
logically weighed on the basis of well-known and well-settled principles
of law. A careful analysis and appraisement of evidence is, therefore,
an absolute necessity in the interest of justice. In the absence of
proper reasoning even a finding of fact is open to challenge in Second
Appeal. It is a matter of common sense and has been repeatedly
emphasised by the Superior Courts in their judicial pronouncements that
a judgment cannot be based upon the personal knowledge of the Presiding
Officer or suspicion, conjectures or surmises but should be based upon
the evidence on the record and be supported by it. It must indicate a
judicial appreciation of the circumstances and must show that the court
has applied its conscious mind to the case without fear and favour. In
suits in which issues have been framed, the court has to state its
findings or decisions separately on each issue unless the findings on
any one or more of them is sufficient for the decision of the suit.
Chapter 11-A of volume-I of the Rules and Orders of High Court inter
alia lays down the following guiding principles for preparation and
delivery of judgments:-
When the trial in Court is over, the Judge should proceed at once or as
soon as possible, to the consideration of his judgment. It is
essentially necessary that he should do so while the demeanour of the
witnesses and their individual characteristics are fresh in his memory.
He should bear in mind that his first duty is to arrive at a
conscientious conclusion as to the true state of those facts of the case
about which the parties are not agreed. The oral and documentary
evidence adduced upon each issue should be carefully reviewed and
considered in the judgment.
The judgment should be written either in the language of the Court, or
When a judgment is not written by the Presiding Officer with his hand,
every page of such judgment shall be signed by him;
It should be pronounced in open court after it has been written and
It should be dated and signed in open court at the time of being
pronounced and when once signed shall not afterwards be added to save as
provided by Section 152 or on review;
If it is the judgment of any Court other than a Court of Small Causes,
it should contain a concise statement of the case; the points of
determination the decision thereon and the reasons for such decision;
If it is the judgment of a Court of Small Causes, it should contain the
points for determination and the decision thereupon;
It should contain the direction of the Court as to costs;
It has been observed with concern that some judicial officers
make a practice of prefacing judgments with a memorandum of the
substance of the evidence, given by each witness examined which has to
be referred to. This practice is irregular, when the memorandum is in
addition to that made under Order XVIII, Rule 8 of the Code of Civil
Procedure. All that the law requires is a concise statement of the case
and not a memorandum of the evidence;
Nevertheless, the judgment is supposed to be comprehensive of the
requirements of the Order XX Rule 4 in that it should set forth the
grounds for decision as concisely as is consistent with the introduction
of all important matters;
In some cases, it may be necessary to refer to or give a summary of
statement of a witness but then it should preferably be incorporated in
the reasons given for the decision;
The reference to the findings of witnesses should invariably be by his
name and number as a witness;
Instances have occurred of judgments not being written until a
considerable time after final arguments have been heard. This practice
is open to grave objection;
The judgment is supposed to be written and pronounced within 14 days of
the date on which arguments have been heard and in case of violation a
written explanation for the delay has to be furnished by the
The sub-ordinate Courts are required to append to their monthly and
quarterly statements a certificate of the effect that the judgments
have been pronounced in all cases within a month of the hearing of final
Every District Judge or a Civil Judge proceedings on leave or transfer
must before making over the charge send a certificate that he has
written judgments in all cases in which he had heard arguments; and
Should an officer be forced to lay down this charge suddenly he shall
nevertheless write the judgment in such cases and send them for
pronouncement to his successor.
In Civil cases, an appeal is not an inherent right exercisable by a
party consequent on the passage of a decree. It can be availed of only
where it is expressly granted by law and in that sense an appeal is the
creation of a statute.
Section 96 of the Civil Procedure Code provides the right of appeal from
original decree unless it is otherwise expressly barred by any law. The
right of second appeal is much restricted as against the provisions of
Section 96 of Civil Procedure Code. By virtue of Section 100 of Civil
Procedure Code, the right of second appeal is available only on the
following grounds, namely: -
The decision being contrary to law or usage having the force of law;
The decision having failed to determine some material issue of law or
usage having the force of law;
A substantial error or defect in the procedure provided by this Code or
by any other law for the time being in force, which may possibly have
produced error or defect in the decision of the case upon the merits.
The statutory right of appeal confers the right of hearing the whole of
the dispute unless expressly restricted and the Appellate Court has to
consider controversy entirely afresh both as regards the facts or law
and to substitute it by its own judgment for that of the sub-ordinate
As far the contents and form of the judgment in appeal, Order 41, Rule
31 provides that the judgment of the Appellate Court shall be in
writing and shall state:-
The points for determination;
The decision thereon;
The reasons for the decision; and
Where the decree appealed from is reversed or varied, the relief
to which the appellant is entitled; and shall at the time that it is
pronounced be signed and dated by the Judge or by the Judges concurring
The term 'points for determination' means all the important questions
involved in the case. The Appellate Court is required to record points
for the determination so as to determine that it has dealt with the
applied its mind to all the point in controversy. Like the judgment of
a sub-ordinate Court the Appellate Court must also state its reasons for
the decision. It is also required to opine with regard to each point and
the judgment has got to be illuminative of all the considerations
leading to the decision arrived at by the Appellate Court. The practice
of reproducing the order of the lower court with minor or paragraphical
changes is highly objectionable. The Appellate Courts must invariably
apply their independent disposition instead of giving a mere resume of
the judgment of the lower court.
The judgment of an Appellate Court may be for confirming, varying or
reversing the findings of the lower court. The Appellate Court has
further powers to pass any decree and make any order which ought to have
been passed or made and pass or make such further or other decree or
order as the case may require and this power may be exercised by the
Court notwithstanding that an appeal is against a part of the decree and
may be exercised in favour of all or for one of the respondent or the
parties although such respondents or parties may not have filed any
appeal or objection. In these terms very wide discretion is given to the
Appellate Courts in order to protect the ends of justice from being
Unlike the Civil Procedure Code, the Criminal Procedure Code does not
define "judgment". It is, however, generally understood that
a judgment means the expression of the opinion of the court arrived at
in due consideration of the evidence and all the arguments. In so far as
the narration of facts and formulation of logical conclusions on the
basis of evidence are concerned the general rules of evidence in a
decision of criminal case are the same as are meant for a judgment in a
Civil suit. The trial evidently proceeds on different lines with a
procedure prescribed in the relevant law, such as the Code of Criminal
Section 366 of the Criminal Procedure Code lays down that the judgment in every trial in any criminal court of original jurisdiction shall be
explained as under: -
In open court either immediately after the termination of the trial or
at some subsequent time of which notice shall be given to the parties or
their pleaders; and
In the language of the court, or in some other language which the
accused or his pleader understands.
Elucidating the same provisions Rule 1, Chapter 1-H, Volume III of Rules
and Order of High Court lays down as under:-
In all cases, a judgment must be drawn up containing the point
or points for determination, the decision thereon and the reasons for
the decision. In case of a conviction, offence, the law applicable, and
the punishment awarded must be entered in the judgment. In case of
acquittal the offence must be specified and (if the accused is in
confinement) a direction given that he be set at liberty. When there are
more than one accused, the case of each should be dealt with separately.
The judgment should be written in the language of the
court or in English; it should be pronounced in open court, and dated
and signed by the Presiding Officer at the time it is pronounced. Except
where the attendance of the accused has been dispensed with during the
trial, and the sentence to be passed is one of fine only or when the judgment
is one of acquittal the accused should be in attendance when judgment is pronounced. No court has power to alter or review a
judgment once signed except for the purpose of revising a sentence of
whipping under Section 394 and 395 of the Code.
General rules with reference to judgment in criminal case are contained
in Chapter XXVI of Criminal Procedure Code, Section 424 whereof lays
down that the rules contained in the said Chapter as to the judgments of criminal courts of original jurisdiction are to apply so far as may
be practicable to the judgment of any appellate court other than High
Besides all that has been said above, the conduct of a Judge also plays
an important role in producing a qualitative judgment. The cardinal
virtues in a judge as described by Lord Denning are: patience to hear
what each side has to say; ability to understand the real worth of the
argument; wisdom to discern where truth and justice lie; and decision to
pronounce the result. The judge, on the one side, has to ascertain the
facts and on the other apply law to determine the fate of the
litigation. His duties are, therefore, two fold in nature.
To sum up the entire discussion, the guiding principles that formulate a
good judgment can be resumed as under:-
A judgment should not necessarily be lengthy.
It should avoid repetition especially with reference to the deposition
of the witnesses.
It must be based on the evidence on record.
It should not be based on matters within personal knowledge of the
judge. It is to be based on the legal facts and not on suspicions.
It should be precise and concise.
There should be coherence in the judgment.
Findings should never be recorded without necessary discussion of
evidence and reasons for the findings.
It must be delivered without any delay after the conclusion of trial and
It should be comprehensive to all the points involved in the case.
No findings should be given on the point, which has not any issue.
Unnecessary criticism and adverse remarks have to be avoided. The
criticism where it is unavoidable should be sober and in becoming
It should not indicate the role of moral of political reformer.
---- WHAT AND HOW TO WRITE
Justice Shafiur Rahman
Judgment is an expression
of final opinion in a case by a Judge. It is the verdict of the Judge, a
decision which sets at rest according to law the controversy between the
parties agitated before the Court. A judgment may confer a right or
status concludes a controversy, decide a claim or convict or acquit a
person accused of an offence.
But before entering upon
the subject I would first like you to realize what is the role and
function of a judge. Unless you are cognizant of your own duties,
jurisdictions, functions, responsibilities and the importance and impact
which a judgment may create on the stability and progress of the
society, it may not be possible to realise what enormous task has been
assigned to you as a member of judiciary.
Judiciary is one of the most important organs of the State. Its function
is to maintain balance between various functionaries of the State and
the citizen. It is a shock absorber for all the jolts and shocks, turmoils and twisting which arise from application and interpretation of
statutes and administrative actions bringing about difference,
dissention, claims and counter claims.
A judge is
authorised under law to decide disputes, which may be between State,
Corporation, Authority and citizen or citizen and citizen. The real
strength of a judge lies in the jurisdiction and the manner in which he
exercises it; the character, neutrality, and discipline the exhibits in
the proceeding and judgment. In an article entitled 'Judges and Judicial
Power' published in a book with the same title, Lord Denning observed:
"So far as judicial power is concerned, it is a mistake to think
of a judge as having power. He has jurisdiction to decide cases, but he
has no power of his own. His only power is to decide according to law:
and the law is to be found in the statutes or in the doctrines laid down
by his predecessors over the years."
"Judicial power rests on the combined wisdom of the judges. Their
jurisdiction is more restrictive than creative. Their principal function
is to restrain the abuse of power by others in the State. If the
government does anything beyond its power, it acts ultra varies. Its
action is void. It has no legal effect."
It is further to be noted "Justice
can only be administered by Courts in aid of the law and to further and
develop the law and not to defeat the law." (Jalal Din Vs. Mst.Noor
Sian PLJ 1892 S.C.413)
Before approaching the subject we should have in our mind the clear
concept of Administration of justice in Islam. Justice is the corner
stone of Islam. It preaches justice to all rank and file, makes every
accountable and suservient to law and casts a heavy duty on the judge to
discharge his duties honestly, faithfully, without fear or favour.
"The Quran and Sunnah are full of injunctions emphasising undiluted
justice, with its much more pronounced importance in our polity, as
compared to Western Jurisprudence. It is one of the main pillars of
Islam after Tauhid and Risalat like Taqva in one sense". (Abdul
Wajid Vs. Federal Government of Pakistan) PLD 1988 S.C. 167). In Islam
Right to justice cannot be abridged (Federation of Pakistan Vs. General
Public PLD 1988 S.C. 643).
Section 2(9) of Code of Civil Procedure define judgment as "the
statement given the judge of the grounds of a decree or order" and
section 2(2) C.P.C. defines decree as "the formal expression of an
adjudication which, so far as regards the court expressing it,
conclusively determines the rights of the parties with regard to all or
any of the matters in controversy in the suit and may be either
preliminary or final". Judgment is a judicial decision in the
Courts. (Ghulam Husain Shah Vs. Ghulam Muhammad PLD 1974 S.C. 344). The judgment
comes into existence after it has been signed by the Judge
(Order 20 Rule 3). The law requires the judgment to be in writing and
signed by the judge. Oral judgment is not a judgment in law. (Nisar
Ahmad Vs. Presiding Officer, Punjab Labour Court No.2 Lahore and another
1976 L. 1162). It should be pronounced, signed and dated in open Court.
(Order 20 R.3; Lachmandas Vs. Central Government of Pakistan, PLD 1973
S.C. 379). The judgment should be pronounced at once after completion
of the hearing or on some future day after due notice to the parties or
their advocates. (0.20 R 1). The judgment should contain a concise
statement of the case, the points for determination, the decision
thereon and the reason for such decision' (0.20 R 4). When issues have
been framed decision on each issue should be given separately unless the
finding on one issue decides the entire suit. (0.20 R 5). In Criminal
cases judgments are to be prepared as provided by section 367 of the
Criminal Procedure Code. They must contain the facts alleged by the
prosecution and the accused, the points for determination and decision
on those points with reasons thereof. In criminal cases judgment means
an order in trial, which results in conviction or acquittal of the
accused (Hari Ram Singh Vs. Emperor AIR 1939 FC+3). Therefore whether
the judgment is in a Civil or Criminal case, it expresses final opinion
of the judge on the merits of the case after consideration of evidence,
facts and law involved in it and finally terminates the proceedings.
Judgment usually opens with introductory sentences to describe the
nature of the case. But it is not necessary to describe the nature of
the case. But it is not necessary to make this introductory expression
and it can be opened by straight away stating the facts. The
introduction, if any, should be brief consisting of one or two
sentences. The Statement of fact is then to follow.
The judgment expresses
the final opinion therefore it should be written in a clear, simple, and
lucid language. One should write judgment in sober and temperate
language. Keeping in view the solemnity of the office, a judge should
express his opinion with dignity, moderation, sobriety and reserved
ness. He should not be sarcastic or funny, nor there is any scope to
show wit and humour as in a literary essay. The language used should not
give the impression that the judge has predetermined the issues or is
biased and partial. The judge should not identify himself with the case
nor write judgment give the impression that it lacks proper reasoning
and impartiality. You can achieve these objects if you have command over
At the time of stating
facts, it should be kept in mind that it is not necessary to narrate
them in detail. It would be sufficient if important facts are mentioned
leaving details to be dealt with at the time of discussing the issues.
In certain cases I have noticed that in judgment while stating facts the
plaint and written statement are reproduced. This is a bad practice and
should be avoided. After stating the facts concisely, issues should be
taken up. This is the stage when facts should be narrated and reference
be made to the evidence of the parties. The conclusion should be
supported by reasoning and reference to the evidence. The finding should
be recorded after discussing evidence, questions of law and explaining
all such points and flaws, which require explanation. In appraising and
appreciating the evidence of the parties the judge should be balanced,
composed and deal with all aspects. The practice of stating the summary
of evidence and concluding that in my opinion the case is proved or not
proved should at no cost be adopted. Unless the facts, evidence and law
are discussed and reasoned out in support of the conclusion the entire
judgment can be assailed. A judgment should be a speaking document in
which conclusions should be supported by well-balanced reasoning with
reference to the facts, evidence oral and documentary and principles of
law applicable to the case. Justice should not only be done but it
should be shown to have been done. Unless the judgment is clear,
balanced, and well reasoned how can by reading it one can understand
what and how the case has been decided.
At this stage it is
necessary to point out that the judgment should not be based on
conjectures, surmises, whims and caprices. Any finding based on these
grounds can be easily set-aside by the higher Court where it is
challenged. The judge should avoid dealing of raising hypothetical or
imaginary questions, which have not arisen. He should restrict himself
to the issues on the questions for determination.
A judgment is always based on the provisions of law which are applied
to the facts of the case. Therefore before preparing judgment a careful
study of such law should be made. It would not be enough to read some
sections of the Act. One has to examine the judgments of the Supreme
Court and High Court if available. If it is felt that proper assistance
has not been rendered at the bar then it is the duty of the judge to
study himself. Omission to do so has been termed as dereliction of duty
(Rox Vs. Ram Dayal AIR 1950 All 154). A judge of the subordinate Court
is bound by the Judgment of the Supreme Court and the High Court to
which he is subordinate, unless it has been over ruled. It is the duty
of the Judge to apply the correct law and he is presumed to know it
including the notifications issued from time to time.
While quoting the authorities full reference of the judgment should be
made. If necessary and proper even the observations may also be quoted.
There is a growing tendency to quote the judgments by reproducing the
head notes of the law reports. These head notes are disjoined and
sketchy. The head notes should never be quoted or reproduced in judgment. At times they are misleading and do not convey what actually
has been decided. Such quotations adversely reflect upon the quality of judgment
and the judge himself. It gives an impression that the judge
has not taken the troubl to even read the relevant portion of the
authority, shown lethargy and has not attempted to apply his mind.
While discussing evidence
at times the conduct and character of the witnesses come under
discussion. The judge can criticise only to the extent it is relevant to
controversy. Such criticism should be made in sober and dignified
language. Disparaging remarks without violating decency of language can
be made provided it is warranted by evidence. But it should not be
expressed in strong or superlative terms. Nor should sweeping and
general remarks be passed against any witness or party.
Some times remarks about
the demeanour of the witnesses are also made. Such remarks should be
made when the witness is being examined or at the close of his evidence.
It is proper to make remarks about the demeanour of the witness after
the examination of the witness and such remarks be made known to both
the parties. To make such remarks in the judgment alone is not approved.
The judgment should be unbiased, clear, lucid, straightforward and
honest. It should not be muzzled, charred, confused or incoherent. One
should proceed step by step by giving reasons logically in such a way
that its perusal must give a clear-cut idea about the claim, controversy
and dispute and the decision, which concludes or decides the case. It
should not be ambiguous resulting in every party thinking it is in his
favour or against him. Repetition of facts and law should be avoided.
Verbose language and lengthy judgments do not create good impression.
However it should not be so short and laconic that the very purpose of judgment
is frustrated. It should be precise, concise, balanced, clear
and intelligible. Such judgments decided the controversy conclusively
and score out possibility of multiplicity of litigation. If the judgment/order is brief but it clearly indicates the points urged
before the Court and the ratio of the decision is also evident then it
is not necessary to record unnecessarily a long judgment as long as it
is intelligible and to the point. (Mehdi Hasan Vs. Addl. District Judge,
Rawalpindi; 1981 S.C.M.R. 1127 Mst. Baigan Vs. Abdul Hakeem and another
1982 S.C.M.R. 673).
These are the basic principles for preparing judgments in Civil Suits.
In Civil Appeal Order XLI Rule 31 C.P.C. provides that the judgment should mention the points for determination, the decision thereon and
the reasons for the decision and if the decree is revesed or varied then
the relief granted by it. The appellate judgment is basically on the
same lines and principles as stated above.
For judgments by the Court of Small Causes Order XX Rule 4(1) C.P.C.
provides that it should contain points for determination and the
decision thereon. It need not be elaborate containing discussion of
evidence and reasons for arriving at the conclusion. However the
observations regarding facts and decision must be to the minimum which
is intelligible for determination by the Revisional Court that it is
according to law.
A judge has to be just, firm, polite, serene, possess good moral
character and integrity. The judgments reflect the qualities of a judge
and unless you have these qualities you can not produce a good judgment. Complaints are made of outside interference but it is
universally accepted without fear of contradiction that so long a judge
is upright, honest and God fearing with intellectual honesty no one can
dare to interfere with his duties. He has nothing to fear except God to
whom he is accountable. At this stage I will quote the following
observation of L. Staffer Oliver an American judge, from his book
"The Bench IS A Hard Seat":
firm conclusion is, that if any judge has character and a reasonable
degree of courage, all parties respect it. He is rarely bothered by any
On the whole I will conclude that a judge has to be fair but firm and
will have no trouble from political or any other sources."
is a universal truth and is equally applicable to all of us.
There are many instances in our judicial history which serve as land
marks and torch bearers for our guidance. I may relate an instance in
the day of President Ayub Khan when Justice Abdul Aziz Khan was sworn in
as the Chief Justice of the High Court of West Pakistan a move was made
that President would address the Judges of the High Court of West
Pakistan Late Mr. Justice A.S. Faruqui objected to this move and
ultimately it was decided that the President would have with the judges.
During this meeting the President started a sort of discourse and when
he said that some of the judgments of the court are obstructing his
newly introduced reforms, a frail but firm, dignified and sober, calm
and self composed judge stood up an objected to such remarks and
observed that the judges perform their duties in faithful discharge of
their oath and according to law without fear or favour, affection or ill
will and the moment they feel that they are unable to fulfil their oath
they would not hesitate to lay down their robes. He was late Justice
A.S. Faruqui the embodiment of courage, character, honestty, integrity,
dignity and learning. His viewpoint was vociferously supported by late
Justice Wahiduddin Ahmad another model judge known for learning,
uprightness, firmness, caliber and courage. Theses are the judges who
are living monuments for our guidance.
I am also reminded of a instance when during Martial Law days Martial
Law Authorities wanted a District Judge to send him the file of a case
which was pending before him. The District Judge resisted the attempt
and immediately reported the matter to the Chief Justice M.R. Kayani who
ordered that file would not be sent to Martial Law Authorities, instead
it should be sent to the Chief Justice. The order was obeyed. This was
the strength of character and courage, which emboldened him not to yield
to any power while discharging his duties as a judge. These are some of
significant memorable instances of historical importance, which show a
path of glory which should be followed by the members of the judiciary.
In the book entitled "The Lawyer and Justice" a collection of
address by Judges and Jurists edited by Brian W. Harvey, Lord Denning in
his presidential address dealing with the topic "Indepedence of
Judges" observed as follows:
independence of the Judges carries with it, of course great
responsibilities ----- the responsibility of deciding without fear or
favour, affection or ill will -- but also the responsibility of being
wise and diserect in all they say. But this does not mean that they must
say nothing. If matter comes before them where injustice is being done,
they are entitled to point it out so that the public may know of it and
form opinion upon it".
is the correct and ideal role of a judge in a democratic independent
society. A Judge has to be natural, principled and disciplined. He has
to use wisdom, learning and discretion. The judgment delivered by him
is the cumulative effect and out come of these abilities and qualities
combined together. The Judge always speaks through his judgments. If he
keeps the stream of justice unpolluted and undiluted results are bound
to be just and honest. The legal effect of a judgment may be far
reaching at times affecting social, economic and political fabrics. It
is in such cases that the quality of the judge is at trial. He has to
consider the problem and interpret the law judiciously with wisdom and
proper discretion. Considering all these consequences, which may flow
from a judgment Lord Denning, pointed out to the problem as follows:
the end there is this problem before us.
the great historian Lord Act-on said:
power tends to corrupt. Total power corrupts absolutely.'
is to control the exercise of power? Only the judges. Some one must be
trusted. Let it be the judges."
is what you have to keep in mind while writing judgment.
OF ARGUMENT: SEVEN EASY STEPS
TO EFFECTIVE ORGANIZATION
I once had
the following exchange with a gracious judge who allowed me to review his work
in a tutorial session.
trouble figuring out what’s going on in this case until I got to page 15,” I
said. “This is where you get around to mentioning the issues.”
“Yes, professor, I can see that.”
“And now that I know
what the issues are, it seems to me that probably twelve of the first fifteen
pages could be omitted, since they have nothing to do with any of this issues.”
“Yes, professor, I agree.”
“Just out of curiosity, why did you wait until
page 15 to enunciate the issues?”
“Well professor, to tell the truth, I didn’t
know what the issues were myself until I got to page 15.”
It was an instructive admission. Writing is
often a means of discovering what we think. It is not unusual for judges
and lawyers to discover the case as they write it.
make a mistake, however, when they require their readers to wander through the
same process of discovery—to follow them down blind alleys, wrong turns, false
starts, and irrelevant facts until the issues finally pop up like mushrooms
I. THE UNIVERSAL LOGIC
OF THE LAW
legal argument can be distilled to the same simple structure, a variation of the
classic categorical syllogism:
These facts (narrate facts)
. . .
the context of this law/contract/regulation/
precedent/section of the
Constitution/principal of equity (choose one) . . .
lead to this conclusion (relief
logic never varies. At trial the judge’s job is to discover this pattern of
thought in the morass of
outright lies, genuine issues, and spurious arguments that the contending
parties allege. And the attorney’s job is to assist the judge in reducing the
facts and evidence to this pattern.
In jurisprudence, only three
arguments can occur: one about facts, the other two about the law:
may contest factual allegations.
Or they may
claim that the other side has cited the wrong law.
Or they may
concede that the other side has cited the right law, but misinterpreted it.
Every case boils down to some combination of
these three basic disputes. There are no others. Even when some
procedural issue is argued (venue, for example, or timeliness), the argument
will always be the same. One side will allege certain facts in the context
of a controlling law, or principle, or standard, and the other side will either
dispute the facts, or argue that the wrong law has been cited, or that the right
law been misinterpreted.
When several issues are
involved, each must be resolved with the same logic: certain facts considered in
the context of a particular law, lead to an ineluctable conclusion.
The logic of jurisprudence is
the same in trial courts and courts of appeal. The only difference is that at
trial, litigants are likely to argue about both facts and law, whereas in courts
of appeal arguments tend to focus on the law—the appellant arguing that the
court below has applied the wrong law or misinterpreted the right one.
Appellate courts are not equipped to examine the quality or quantity of the
evidence itself. They cannot call in witnesses or examine exhibits or indulge
litigants in the lengthy, unpredictable, and often disorderly proceedings that
are characteristic of a trial. Courts of appeal may hear arguments about the
admissibility or sufficiency of certain evidence, but except in rare
circumstances they will not second-guess trial courts on the inferences drawn
from whatever evidence they deem admissible.
Because the pattern of legal
logic is always the same, the structure of an effective pleading at any level is
identical to the structure of a judgment. These genres have different
audiences, but the same purpose: to persuade. There is one important
difference. A judgment has the advantage of authority. A judge can issue an
order instead of merely asking for one.
A UNIVERSAL OUTLINE
FOR JUDGMENTS, BRIEFS, MOTIONS,
AND OTHER SUBMISSIONS
If the logic of the law is so
simple and repetitive, why do judges and lawyers have so much trouble organizing
what they write?
Because despite the
appearance of logic, litigation is always messy and uncertain. It relies
on “facts” inferred from observations that cannot be
replicated, reported by witnesses who may or may not be telling the truth or by
experts who are generally contradicted by opposing experts.
Inferences made from events described by witnesses are never
as reliable as scientific inferences, which are made from replicable
observations. Even expert evidence that claims to be “scientific” can be
contested by other data or other interpretations of the same data.
Nor do the issues arise
from the facts, with a logical inevitability. Good lawyers can find
many issues in any set of allegations, some more likely than others to benefit
their client’s position. Unanticipated issues and surprising facts may arise
during the trial, and sometimes on appeal. Even when opposing lawyers agree on
the issues, they can frame them differently to gain an advantage.
In addition, the logic of the law often melts like a pocket watch in a surreal
Analogies, which are the basis of
common law (the claim that the case at bar is essentially like a precedent),
always limp. Precedents are always distinguishable.
language of the law is rotten with ambiguity. Despite the best efforts of legal
drafters, a motivated reader can find more than one meaning in any text. A
word like “murder” may seem plain enough—until we have to decide how it applies
in cases of abortion or assisted suicide. A term like “marriage” may seem plain
enough—until we have to decide when cohabitation becomes marriage, or whether
one member of a same-sex union can claim spousal benefits on the other’s
insurance policy. Absolutely no word in the law is immune from the ambiguity it
might contract, like a contagious disease, in the context of a novel set of
facts. What seems like “plain meaning” when a legal text is drafted disappears
in a swirl of indeterminacy when the text is applied to facts the drafters did
Despite these problems, the credibility of common law
depends upon the ability of lawyers and judges to control the chaos by conveying
their reasoning in a form that reflects the universal logic of jurisprudence.
Instead of instead of controlling the chaos, however, they often reproduce it,
failing to provide their readers with the issues that form a context in which
individual facts have meaning, rambling through facts and allegations without
distinguishing the credible from the implausible, switching from one party’s
version to the other’s as if they were court reporters, reproducing the
testimony instead of analyzing it. Their arguments meander, just as their own
thoughts must have meandered. They produce a stream of consciousness instead of
an orderly sequence, a diary of dawning awareness instead of an engine of logic
in which a result emerges from an application of law to fact. They forget that
the goal of jurisprudence is to pluck the essential issues, the relevant facts,
and controlling laws from the maelstrom of arguments, allegations, precedents,
principles, and pretensions that rage about during a trial. It is not an easy
task. But it would be easier if advocates would remember the simple logical
structure that must underlie the resolution of every issue in every case.
Many jurisdictions publish rules to
assist lawyers in organizing their submissions. These rules generally make
excellent sense. “First, tell us what the issues are,” they seem to say,
reflecting an awareness that facts have no significance until they are placed in
the context of an issue. “Then tell us what the case is about”— reflecting the
frustration of judges who have to read dozens of pages before discovering the
basic fact situation from which the case arises. And finally, “Organize the
rest of the judgment in a logical and predictable order”—a plea from readers who
are continually surprised by what pops up next in an argument.
Paradoxically, judges and lawyers sometimes forget that as
readers they want precisely what their readers want from them. Rules for
pleading or for appellate procedure generally work just as well on either side
of the bench, and at every level, all the way up to Supreme Court.
III. A SEVEN-STEP
RECIPE FOR ORGANIZATION
Here is a recipe for organizing a pleading or a judgment in even in
the most complex case.
partition the issues.
Prepare an OPP/FLOPP
analysis for each issue.
analysis of issues like rooms in a shotgun house.
outline with case-specific headings.
draft with a checklist and a friend.
IDENTIFY AND PARTITION THE ISSUES.
Plan the body of the pleading or the judgment before
settling on an introduction.
Use a stack of note cards, or half sheets of paper, or the
equivalent space on a computer screen. On each card write the word ISSUE,
followed by a brief statement of any question the court must decide. If
the issues change as the case proceeds, prepare separate cards for the new ones
and discard those that become irrelevant.
Determining the issues early is essential to efficiency in
the writing process and economy in the result. You cannot distinguish relevant
facts and arguments from pointless digressions until you have determined
precisely what questions the court is being asked to settle.
Partitioning the issues is essential to the structure of
your argument. Unless each issue is clearly separated from the others, your
argument will seem like a vast swamp, shapeless, devoid of direction. Dividing
your argument into discrete issues enables you to focus you analysis on each one
individually. It also enables your reader to move from one issue to the next
with a sense of orderly progression.
AN OPP/FLOPP ANALYSIS FOR EACH ISSUE.
The easiest way to organize the analysis of each issue is to
follow this pattern:
OPP (Opposing Party’s
FLOPP (Flaw in Opposing
are a judge, change “OPP” to “LOPP,” or “Losing Party’s Position.”)
OPP: Respondent contends that
he had not been informed of the penalty clause in the contract.
FLOPP: The evidence shows
that both the respondent and his attorney received the contract thirty days
before signing it.
respondent’s contention that he was unaware of the penalty clause has no merit.
The first sentence in this pattern
would be followed by supporting details, perhaps by quoting the respondent’s
contention verbatim; the second sentence would be followed by citing evidence
indicating that respondent had received the contract in plenty enough time to
When the conclusion is
obvious, it may be effective to leave it unstated and allow your readers to
complete the syllogism on their own. Judges, of course, have to make their
conclusions explicit in the form of findings or orders, usually at the end of
the ruling as a whole. Sometimes it is effective to refer to an unstated
conclusion as if it were so obvious that it can be safely tucked away in a
subordinate clause (e.g., “Because respondent had ample time to examine the
contract before signing it . . .”). Understatement of this sort can be more
powerful than rhetorical excess. It implies that any reasonable reader would
agree with you.
Be careful about using highly charged language to
characterize the opposing party’s position. Charged language is a rhetorical
weapon that often backfires. It pleases readers who agree with you in advance,
but it alienates impartial readers and infuriates the opposition and anyone who
may be sympathetic to the opposition’s point of view. Charged language is
often a sign that an argument is based on passion rather than law. Normally,
judges try to rise above emotion. They want you to give them reasons, not
feelings nor even ideals, that will survive scrutiny on appeal. If you are a
judge, you should be able to express the losing party’s position as effectively
as you can—as if you were representing that party yourself—and then identify the
flaw in that position with surgical detachment. If you cannot find the flaw in
your best statement of the losing party’s position, you may need to reconsider
The OPP/FLOPP pattern can be effective even when the writer
is the moving party and the opposing party has not yet expressed a position.
The OPP in this situation is whatever the opposing party has done or said (or
failed to do or say) that motivates you to file this particular motion or
application. The FLOPP explains why opponent’s words or actions are factually
inaccurate or incompatible some law or legal principle.
One exception to the LOPP/FLOPP patter occurs when the
controlling law is not so much a law as a principle of equity or a matter of
judicial discretion. In determining custody, for example, or visitation rights,
family court judges can help calm raging emotions by downplaying the notion of a
“losing” party. An adverse ruling in family court is never easy to accept; but
disappointed parents will find it easier to respect a decision that focuses on
the child’s best interest rather than on a finding that either party has been
found a less competent parent. Even when the decision is actually based on the
unsuitability of one parent, it does no harm to acknowledge whatever parental
strengths the judge can attribute to that parent, even if, for the record, it
also mentions the weaknesses that are critical to the decision.
Bankruptcy cases and contract disputes—where assets have to
be divided equitably in the absence of clear language or mathematical
formulae—are often best resolved by downplaying the notion of a winner and a
loser. In cases like these, judges sometimes have little to rely on other than
a subjective sense of fair play. Whenever possible, the tone of the judgment
can ease the disappointment of the litigants, even though both parties are
likely to be dissatisfied with the result.
Another exception to the LOPP/FLOPP pattern occurs when
judges are finding facts. It generally makes sense to begin with the position
of the party with the burden of proof, whether that party loses or wins.
Plaintiff argues that the
value of the condominium at the time of the divorce was $150,000.
presented evidence that the value was roughly half that amount.
After carefully weighing the
evidence presented by each side, I find that . . . because . . . .
Again, in an actual judgment each of the first two sentences
would be followed by a summary of the evidence presented, and the third sentence
would be followed by an indication of why the judge found one party’s evidence
more persuasive than the other’s.
This is tricky business. Many trial judges believe, with
good reason, that by expressing reasons for findings based on credibility of
experts or other witnesses, they invite the court of appeal to second guess them
and to reach different conclusions. On the other hand, failure to give reasons
can tempt the court of appeal to remand on grounds that the findings were not
supported by sufficient evidence. Balance is the key. Support your findings
with sufficient reasons to show that they are not arbitrary and capricious, but
do not provide so much detail that your readers will be tempted to draw
inferences of their own. You, after all, were present to observe nuances in the
testimony that will not be available to the Court of Appeal.
In general, though, litigants benefit from a judgment that
is as definitive as an umpire’s call at home plate or a line judge’s verdict in
a tennis match. Even if we know they are occasionally wrong, we do not want
referees to have doubts. We want them to be decisive so we can get on with the
game—or with our lives. Perhaps more importantly, the OPP/FLOPP pattern
helps judges and lawyers think clearly about the application of fact to law. It
helps lawyers determine whether they have a case or not, and whether they should
advise their clients to settle rather than enter into litigation they are likely
to lose. It also keeps judges honest, protecting them from their own biases.
Nothing is more frustrating to the bar and to the public than a high profile
decision that is not supported by a clear and logical application of law to
facts. And nothing can be more damaging to public trust in the integrity of the
ARRANGE THE ANALYSIS OF ISSUES LIKE ROOMS IN A SHOTGUN HOUSE.
The most frequent cause of
obscurity in jurisprudence on both sides of the bench is not technical language
or complex issues or arcane subjects. It is haphazard organization compounded
by facts and allegations that have no bearing on any of the issues.
The easiest way to organize a judgment or a pleading is to
imitate the structure of what in some parts of the United States is called a
shotgun house—a house in which each room follows the other in a straight line:
front porch, back porch, and a series of perfectly parallel rooms between (see
The front porch is the introduction, the back porch the
conclusion. Each room between contains the analysis of a particular issue.
This pattern can be effective whether there is one issue or fifty.
Once you have determined the issues, arrange them in a
sequence that makes sense. If you have written each issue on a separate card,
you can spread the cards across a table and select the sequence that works
Sometimes there will be threshold issues (standing, for
example); normally these are dealt with first. Sometimes issues can be grouped
in categories (e.g., three dealing with the admissibility of evidence, two
dealing with jury instructions, five dealing with sentencing). Sometimes the
issues can be arranged in a logical chain, each issue dependent on the other for
its viability. Sometimes each issue is completely independent of the others.
In this situation, consider arranging the issues chronologically, if the
material allows it. Or consider arranging them for their rhetorical effect,
perhaps beginning with those for which you have your best analysis, with the
alternative arguments trailing behind.
The analysis of each issue should be self-contained, like a
stanza in a poem or a room in a shotgun house (stanza actually means
“room”). You should have as many rooms as you have issues.
In some cases, another section needs to
be added to the structure: the rhetorical equivalent of a foyer, an antechamber
just after the introduction and just before the analysis of the first issue.
This section is necessary in cases that cannot be understood without a detailed
narration of facts.
a “foyer” for an extended facts, background, or procedural history may be
necessary at times, more often than not it can be avoided by writing a beginning
that provides an essential overview (see step 5, below) and mentioning necessary
details in the analysis of the issue to which they are most relevant. Narrating
the detailed facts twice—in the beginning and in the analysis of the
issues—creates unnecessary work for your readers.
PREPARE AN OUTLINE WITH GENERIC AND CASE-SPECIFIC HEADINGS.
pleading or judgment is very short—two or three pages—it may need no headings.
In longer texts, headings are essential.
At the beginning of a
document, in the table of contents, headings provide a roadmap, foreshadowing
the journey you want your reader to take. Within the document, headings serve
as signposts marking the boundaries between various stages of the journey. They
show where each argument ends and another begins. To serve these functions
effectively, headings must be as brief as possible. They should not be entire
arguments (though it is often effective to put a brief summary of an argument
immediately after a heading).
There are two kinds of
headings: generic and case specific. Words and phrases like “Introduction,”
“Background,” “Order,” “Relief Sought,” “Cases Cited,” “Issues,” “Findings of
Fact” are generic headings. Generic headings can be transferred from case to
case, regardless of the facts and issues. They can be very useful. Sometimes
they are required.
In addition to generic
headings, however, are case-specific headings, like “Was the Warrant Valid,” or
“What is the meaning of ‘obscenity’ in Section 905?” Case-specific headings are
extremely useful when they mark boundaries between the analysis of separate
There are three ways to phrase a case-specific heading. You
can phrase it as an argument:
The University of Montevallo is not an
Agency of the State.
phrase it as a question:
Is the University of Montevallo an
Agency of the State?
Or you can
phrase it as a topic:
Some lawyers prefer argumentative headings, never wanting to
pass up an opportunity to press their point of view. Others think topics or
questions are more effective as headings because they convey a sense of detached
objectivity, which is in itself a persuasive stratagem. It’s a matter of
personal preference, based upon the authorial persona you want to create and on
the way you think a particular reader or set readers is likely to react.
though you should write every pleading and judgment as if you expected
your readers to follow it from beginning to end, chances are they won’t.
Effective headings will aid those readers who raid your text like marauding
pirates, looking for what interests them and ignoring the rest. The safest
policy is to let them know where they can find whatever they are looking
for—those issues in which they are most interested in your argument.
No matter how you phrase them, however, they should be
clearly foreshadowed by the end of the introductory section (see step 5 below).
may seem odd to suggest writing an introduction at this stage, after you have
already developed the heart of your argument. But you are not in a position to
write an introduction until you know what you are going to introduce. Sometimes
you have no idea what the issues are, or how many, or how they should be
resolved, until you have drafted an OPP/FLOPP analysis for each issue.
Avoid beginning with technical, dry, or uncontested
assertions. Imagine, for example, the reaction of a weary judge with a busy
schedule and other things to do when she or he reads an opening paragraph like
Pursuant to this Court’s Rule 25.5, appellees City of New York, et al.,
respectfully submit this Supplemental Brief responding to an argument made by
the Solicitor General for the first time in his Reply Brief on the merits.
Appellants have claimed that appellees’ invocation of jurisdiction under 28
U.S.C. § 1331 in the district court failed because that statute “does not create
a cause of action, much less authorize adjudication of a suit against the
government absent an independent waiver of sovereign immunity.” Reply Brief for
the Appellants (“Reply Br.”) at 3 n. 1. Appellants failed to raise these
arguments below, in their Jurisdictional Statement to his Court, or in their
opening brief on the merits.
If you are a typical
reader, you probably did not read this example in its entirety. You skipped
over it as soon as you eyes glazed over. Yet some lawyers are convinced that
they are bound by tradition, rules, or logic to begin their pleadings in this
way. A judge is likely to react to a beginning like this in very much the same
way you reacted to it when you read it—or failed to read it.
Similarly, judges should
try to imagine the reaction of their readers when they encounter opening lines
(Article 453 C.P.C.)
having examined the proceedings and the exhibits, considered the arguments of
counsel, and duly deliberated, doth now render the following Declaratory
This self-congratulatory gambit serves no purpose. It is a sort of
judicial throat clearing. It enables the judge to put something on paper
before getting around to the case at hand. Why not just get around to it? Skip
the throat clearing.
A perfect introduction
provides two things: a synopsis of the facts and a brief statement of the
issues. Imagine how you would begin if you were telling a neighbor about the
case. Start with the issue, if the issue has far-reaching implications.
Otherwise, start with a thumbnail sketch of the facts, a brief story
indicating of the human conflict, “who did what to whom,” followed immediately
by a concise statement of the questions (the issues) that the court needs to
of facts and issues in a nutshell provides the context your arguments will make
sense and be worth reading. In addition, by delineating the issues in a few
lines, you can foreshadow the structure of the argument to follow. Here is an
Harry Saunders was convicted
of assault, battery, rape, and murder, each in the first degree. According to
the evidence, Saunders wore gloves and a mask when he committed these crimes,
concealing his identity from his victim and from witnesses on the scene.
In this appeal, Saunders argues that the
lineup in which he was identified was suggestive, that articles of clothing used
in his identification were illegally seized from his apartment, and that he had
no access to counsel at key points during the investigation.
This beginning is exceptional
not only for what it does, but perhaps more importantly for what it does not
do. It does not establish standing or jurisdiction with the ubiquitous phrase,
“Pursuant to Rule 123 appellant asks. . . .” It has no legal jargon or long,
tangled sentences. In fact, there is nothing in this opening that would seem
odd or technical in a good newspaper. And that, despite whatever
misgivings you might have about the media, is an excellent standard for legal
The writer (a judge in Idaho)
also avoided citing specific sections of the code and specific references to
precedent. He did not feel obliged to tell us that assault, battery, rape, and
murder are illegal activities (e.g., “contrary to sections w, x, y, and z of the
Criminal Code”). Nor did he feel obliged, at this stage, to tell use what
statutes, precedents, or standards the appellant had invoked in support of his
claims. This may be essential information at some point—the precedents will
have to be cited and distinguished, the statutes and standards may have to be
quoted if there is any dispute about their meaning or the application to this
particular set of facts. But details of this sort should be saved for the
sections in which issues are analyzed. No need cluttering the opening paragraph
with more information than the reader needs at this point.
This beginning provides the
necessary context for understanding the analysis that follows. You can even
predict the headings: “Lineup Identification”; “Search and Seizure”; “Access to
Counsel.” And in predicting the headings, you are predicting the structure of
the rest of the document. You are, in effect, promised an easy and interesting
read. Although lawyers are not obliged to make their writing interesting, doing
so does have the effect of helping the reader pay attention to the argument.
this case, the writer felt the need to interpolate a detailed narration (foyer)
between the opening paragraphs (the front porch) and the analysis of first issue
(the first in a series of rooms). He did this by telling the story of the
lineup in which Mr. Saunders was identified, beginning with “There were three
lineups. The first occurred. . . . The second occurred. . . . The third
occurred. . . .”
In most cases, however, a
simple story-plus-issue is the best way to gain the reader’s interest and
attention. But the temptation to write abstractly is hard to resist. Here is
the opening paragraph in a case about unlawful detention:
 This is an
application supported by an affidavit in which the applicant is seeking to be
admitted to bail pending her trial. The affidavit discloses that the applicant
who has been in custody since October, 1985 was on 3rd December, 1985 committed
to the High Court for trial for the offence of Infanticide. On 18th December,
1985 she applied to the High Court at Kitwe to be admitted to bail pending her
This is an
adequate beginning, but it reads like an abstract problem in the law instead of
what it really is, a case about a young woman who has been improperly held in
jail without bail. Starting with the story would have given the case the sense
of urgency and human significance it deserved:
Chilufya has been in jail for nearly five months, awaiting trial on a charge of
infanticide. The High Court has refused to set bail, on the ground that
infanticide is a form of murder, and murder is not a bailable offense. A
threshold issue in this case, however, is whether the Supreme Court has the
authority to . . .
Stating the issues
effectively requires steering a course midway between too much detail and too
little. The example below provides too much detail—too much because it
overwhelms the reader and predicts what follows in bewildering specificity:
1. The issues in this appeal in respect of the
Appellant’s 1994 taxation year are:
Whether the Appellant, in determining LCT liability under Part
I.3 of the Act, is entitled to deduct the amounts of the Estimates
from its “capital”, or whether such amounts are to be included
“reserves” pursuant to ss. 181(1) and 181.2(3)(b), or
“other surpluses” pursuant to s. 181.2(3)(a);
Alternatively, if the Estimates are “reserves” or “other
surpluses”, whether the Appellant, in computing its income
under Part I of the Act, is entitled to deduct the amounts of the
Estimates from its revenue;
Whether the Appellant, in determining LCT liability under Part
I.3 of the Act, is entitled to deduct the $37,481,776 amount” as a
“deferred tax debit balance” within the meaning of
The other extreme is to provide too little detail::
The issue is whether the appellant is entitled to deductions he
claimed on his tax returns for 1994.
does not predict the structure of what follows, nor does it give the reader a
glimpse of the grounds on which each side bases its argument.
It is also possible to
provide too much and too little at the same time—too
much by including information the reader does not need at the outset; too little
by not explaining what is at stake and by presuming a reader who knows the code
The issue is whether the appellant is entitled to deductions
pursuant to ss.
181(1), 181.2(3)(a), 181.2(3)(b), and 181.2(3)(h) of Part I.3 of the Income Tax
A good statement
of issues foreshadows the structure of what follows, provides the reader with a
glimpse of the grounds of the argument. It does not cite laws, precedents, or
records that can be more usefully cited in the analysis section. In this
particular case, after a brief description of what the appellant claimed in his
tax returns, the issues might might have been effectively stated like this:
The issues are:
the Appellant is entitled to deduct the amounts of the estimates from its
the Appellant is entitled to deduct the amounts of the Estimates from its
Whether the Appellant
is entitled to deduct the $37,481,776 as a “deferred tax debit balance.”
Some pleadings (for example,
an appellant’s opening brief filed in a United States Court of Appeals) are
required by rule to begin with a statement of jurisdiction, even if jurisdiction
is not contested. If you are writing such a pleading, minimize the distraction
by making it seem like the boiler plate it is. Give it a heading
(“Jurisdiction”) and a single sentence citing the applicable rule. If possible,
set it off in a box in a corner of the page—a ritual recognition that you would
not be in court if you had no right to be there.
Then use another heading
(“Background,” or “Introduction” “Summary of the Case”) to direct your reader’s
attention to your brief narrative and statement of the issues. If jurisdiction
is actually contested, list it as your first issue, but save your argument for
the analysis section. Avoid getting bogged down in a jurisdiction issue before
telling your version of the essential facts. A strategic narrative of the facts
may dispose your reader to rule in your favor on jurisdiction when there ruling
could reasonably go in either direction.
When jurisdiction and
standing are uncontested, starting with “Pursuant to” to answer a non-argument
is like putting a hotdog stand on prime real estate. The first paragraph and
the last are possibly the only places where you can count on the reader’s
attention. Why waste this space by filling it with information the reader can
be presumed to know?
A good beginning makes the
reader want to read more. A notable example is this introduction in a
per curiam by the Ontario Court of Appeals:
 Professor Starson is an exceptionally intelligent man. His
field of expertise is physics. Although he has no formal qualifications in that
field, he is in regular contact with some of the leading physicists in the
world. In 1991 he co-authored an article entitled “Discrete Anti-Gravity” with
Professor H. Pierre Noyes, who teaches physics at Stanford University and is the
Director of the Stanford Linear Accelerator Center. Professor Noyes has
described Professor Starson’s thinking in the field of physics as being ten
years ahead of its time.
 Unfortunately, Professor Starson has a history of mental
illness, dating back to 1985. He has been diagnosed as suffering from a bipolar
affective disorder. On several occasions during the last 15 years he has spent
time in mental institutions. In November 1998 Professor Starson was found not
criminally responsible on account of mental disorder on two counts of uttering
death threats. In January 1999 the Ontario Review Board ordered that he be
detained at the Centre of Addiction and Mental Health (the Centre).
this passage does not call attention to itself as writing. The words are
transparent, invisible, like lenses through which we see characters and events.
The writer doesn’t seem to be trying to write. The art conceals the
artifice. It’s as if the story wrote itself. But of course it did not.
A story is almost always an argument—all the more effective because it does not
seem like an argument.
In this case,
the plot thickens when we find out that the unusual Professor Starson “has a
history of mental illness.” And it thickens further when we discover a few
sentences later that he does not want the medication the Ontario Review Board
wants to give him, because it would cloud his mind and hinder his ability to
conduct his theoretical research.
like this entices the reader to continue reading. Who would not be curious to
know how the case was resolved?
WRITE AN ENDING.
If you are
a lawyer, do not pass up an opportunity to recapitulate the essence of your
argument at the end. Briefly summarize what you want the court to decide, what
remedy you want the court to grant and what grounds the court has for granting
it. Write you conclusion as if you suspected that a busy judge might read your
ending before reading anything else, hoping to find there your argument in a
If you are a judge, your concluding section may include only
an order. However, if you think the court above yours, or the press, or the
losing party might miss the essence of your analysis, use your conclusion as a
summation. Repeat your analysis, but in different words, and succinctly.
Brevity is essential. A conclusion that exceeds one page is likely to seem like
a new argument instead of a conclusion.
The concluding section also provides an opportunity for
obiter dicta—instructions to the bar on related matters that are not
logically essential to the case you are deciding. And when your decision is
based on common sense our pure equity, the concluding section can include what I
like to call the “To-rule-otherwise” trope. Judges rely on this device when
they have little or no law to justify their decisions. “To rule otherwise would
be to invite . . .” they say, and then list the horrible, unjust, and illogical
things that would follow from a different decision.
section of a brief or motion provides a similar opportunity for lawyers when
justice, equity, or common sense is on their side, but the law is not
particularly helpful. Pointing out unjust consequences can be persuasive when
the law is a feeble ally.
In a very short pleading, where repeating the reasons would
be tedious, a conclusion that specifies the relief sought without repeating the
reasons may be adequate:
For the reasons
above, plaintiff's Motion to Remand is due to be granted. Plaintiff asks this
Court to issue an order remanding this action to the Circuit Court for Barbour
County, Alabama, Clayton Division. In addition, plaintiff requests that this
Court order defendants to pay all just costs and expenses, including attorney's
fees, incurred as a result of the improper and groundless removal of this case.
take only minor editing to make this conclusion appropriate for a judgment:
For the reasons
above, plaintiff's Motion to Remand is granted. This action is remanded to the
Circuit Court for Barbour County, Alabama, Clayton Division. In addition,
defendants will pay all just costs and expenses, including attorney's fees,
incurred as a result of the improper and groundless removal of this case.
In a pleading of any complexity, however, an ending of this sort
misses an opportunity to revisit the argument. A brief review of the
argument, like the one below, can assist the reader.
Defendant, Tarwater Tobacco
Co., has succeeded in having this case removed from state to federal court on
ground that Tarwater’s local agents were named as co-defendants by plaintiff as
a ruse (“fraudulent joinder”) to obtain a favorable local venue.
The standards for removal on
the basis fraudulent of joinder are quite high. In this case, Tarwater would
have had to prove either that there is no possibility of a verdict against the
local defendants, or that the complaint against them was based on false
Tarwater has met neither
standard. There is no evidence of fraudulent information in the joinder. Nor
is there any question that a jury would find against Tarwater’s local agents if
the facts alleged are proved at trial.
For these reasons, we
respectfully request the court to remand the case to the Circuit Court for
Barbour County, Alabama, Clayton Division, from which it was removed.
We also request the court to
order that costs and attorney’s fees be assigned to Tarwater. Their failure to
provide credible evidence for their claim amounts to a frivolous delaying
tactic, taxing the plaintiff with unnecessary costs and taxing the resources of
It may seem paradoxical that a good ending resembles a good
beginning (which, in turn, often resembles a good head note). The resemblance
is not accidental. Judges and lawyers are busy people. They do not necessarily
read from top to bottom. If they get lost in an argument, they may flip to the
end, hoping to find a synopsis there. They will not be helped by a conclusion
that says merely “For the foregoing reasons . . . ,” sending them right back to
the thicket they had just abandoned. An effective conclusion summarizes those
foregoing reasons in a nutshell, in plain English, without repeating citations
and references that are already included in the body. Here is how the Ontario
court concluded the case about Professor Starson:
Putting aside any paternalistic instincts – and we think that neither the Board
nor the appellants have done so – we conclude that Professor Starson understood,
through the screen of his mental illness, all aspects of the decision whether to
be treated. He understands the information relevant to that decision and its
reasonably foreseeable consequences. He has made a decision that may cost him
his freedom and accelerate his illness. Many would agree with the Board that it
is a decision that is against his best interests. But for Professor Starson, it
is a rational decision, and not one that reflects a lack of capacity. And
therefore it is a decision that the statute and s. 7 of the Canadian Charter
of Rights and Freedoms permit him to make.
The appeal is
REVIEW YOUR DRAFT WITH A CHECKLIST AND A FRIEND.
Persuade a friend, preferably a non-lawyer with no knowledge of the case, to
help you review your draft with the following checklist:
Ask your friend to tell you, after reading only the first
page, who did what to whom and what issues need to be settled.
Test the overall structure by asking your friend, after
reading only the introduction, to guess what headings will follow. If there is
a good match between the introduction and the structure that follows, your
friend should be able to guess, in substance, the case-specific headings that
separate the analysis of each issue from the others.
Ask your friend to tell you, after reading the last full
page, what you decided (or what you want the court to decide) and what grounds
you give for the decision.
Ask you friend to locate the beginning and the end of the
analysis of each issue and to tell you the losing (or opposing) party’s argument
and the flaw you found in it.
economy and consistency. If you announced five issues at the outset, be sure
that you have analyzed five issues. Delete any information that is irrelevant
to the issues. Look for repeated information; see if it can be mentioned in one
place and omitted in the other.
your friend doesn’t answer any of these questions to your satisfaction, don’t
A well-written pleading or judgment is as smooth as a grape. There
is nothing extra. Once you reduce it to essentials and organize it coherently,
you are ready to read it again, this time in search of the stylistic problems
discussed in the following chapter.
Garner, Bryan A. The
Winning Brief : 100 Tips for Persuasive Briefing in Trial and Appellate Court.
New York: Oxford UP, 1999.
Stark, Steven D. Writing to Win. New
York: Doubleday, 1995.
James C. Raymond,
pragmatic perspective, writing is good if it conveys what the writer wants it
to convey to readers the writer wants to reach. This is obviously a relative
standard. Technical jargon is good if its intended readers know the jargon so
well that they hardly notice it. Scientists and engineers are entitled to
write to other scientists and engineers in ways that only they can
understand. Of course, the rest of us are grateful when they write in ways
that we find interesting and easy to read. But there is no reason to hold
specialists to this standard when they write for other specialists.
do we complain when lawyers write about the law in a language that excludes
law is rarely an exclusive preserve of experts the way science and technology
are. Non-lawyers are expected to understand and abide by the law. Most
people can get by without understanding physics or microbiology or
cybernetics. But law touches other people’s lives more directly than other
disciplines, and ordinary people are understandably annoyed when lawyers write
to them or about them in language that only other lawyers can understand.
another good reason for lawyers to write plain English: it enables them to
understand one another. In fact, sometimes it enables them to understand
the great myths of the legal profession is that the language of the law is
precise and scientific, hallowed and refined by centuries of precedent, as
clear to lawyers as scientific and mathematical symbols are to scientists and
mathematicians. Nothing could be farther from the truth. Ask a lawyer
whether there is a significant difference between “Will” and “Testament.” Not
one in ten can tell you; but they will insist on using both words for fear
that something might go wrong if they don’t.
language is not clear if no one understands it. Yet lawyers repeat it, like
magical incantations passed from one generation of a secret society to the
next, quarantined from the evolution that makes ordinary language intelligible
to people who use it.
sometimes test the notion that legal language is intelligible to lawyers by
projecting the following passage onto a screen:
The government’s concern lest the Act be held to be a regulation of
production or consumption rather than of marketing is attributable to a few
dicta and decisions of this court which might be understood to lay it down
that activities such as “production,” manufacturing,” and “mining” are
strictly “local” and, except in special circumstances which are not present
here, cannot be regulated under the commerce power because their effects upon
interstate commerce are, as a matter of law, only indirect.
At first, any
roomful of lawyers will claim that the passage is perfectly clear. But then I
remove it from the screen and ask, “OK, is the government concerned that the
court is going to do something or concerned that the court is not going
to do something?” Invariably there is no consensus among the group, often no
response at all.
Notice that aside from the word “dicta,” there is no technical language to
blame for the obscurity. If we changed dicta (short for obiter
dicta) to “asides” or “digressions,” the passage would not be materially
improved. The problem with legal language, then, is not just that it is laden
with legalisms and Latin. The problem is that many lawyers get themselves
tangled in syntax so knotty that they cannot understand it themselves.
proof that lawyers could write about the law in plain English with
precision is that some of them do. Good models abound. I don’t mean just
lawyers-turned-novelists, like Turow and Grisham. I mean lawyers who write
lucidly about the law: Jeffrey Rosen in the New Republic and
occasionally in the New Yorker; Linda Greenhouse in The New York
Times. Every year lawyers publish books that are perfectly intelligible
and even interesting to non-lawyers. Good examples include Actual
Innocence (by Barry Scheck, Peter Neufeld, and Jim Dwyer); The TV or
Not TV: Television, Justice, and the Courts (Ronald L. Goldfarb); One
Case at a Time (Cass Sunstein); Closed Chambers (Edward Lazarus);
A Civil Action (Jonathan Harr); The Buffalo Creek Disaster
(Gerald M. Stern) and Getting Away with Murder: The Canadian Criminal
Justice System (David M. Paciocco). Law and Literature (Richard A.
Posner) is more scholarly in style, but light years ahead of most academic
writing in clarity.
Totenberg of NPR. We may think of Totenberg as a newscaster rather than a
writer, but her reports on the U.S. Supreme Court are invariably models of
precision and clarity. Nothing in the nature of the law prevents lawyers and
judges from communicating with the public in the same way.
legal writing is characterized partly by absences: an absence of unnecessary
repetition, an absence of irrelevant detail, an absence of tangled sentence
structure. In good writing, very word counts. Remove one and you miss it,
just as you would miss a piece left out of a jigsaw puzzle. If you are an
experienced reader of legal arguments, you know how tedious they can be, not
because the concepts are difficult but because they have been obscured by
verbiage that serves no purpose.
legal writing is also characterized by an absence of unnecessary jargon. Of
course, every profession has its special language. Even non-lawyers have to
accept expressions like “estoppel,” habeas corpus, and arguably
if there are no handy equivalents in ordinary English. But there is no excuse
for phrases like inter alia when there are handy English equivalents
(“among other things”). And while it may be understandable that lawyers would
speak to one another of filing a pro hac petition, nunc pro tunc,
they should probably tell their clients that they are seeking permission,
rectroactively, to practice in a jurisdiction other than their own.
there any reason for lawyers to use ordinary words (“such,” “same,” “said”) in
ways that ordinary people do not use them. In his “A Primer of
Opinion Writing, for Four New Judges” (cite below), George Rose Smith of
the Arkansas Supreme Court tells new judges to test for legalisms by imagining
how a phrase would sound if in ordinary conversation. You would never say “I
have mislaid my keys, dear, have you seen same?” You would never say “Sharon
Kay stubbed her toe. Such toe is mending now.” You would never say, “May I
have another slice of pie? Said pie is the best you ever made.” Nor would
you say, “Let me tell you something funny about our dog, hereinafter called Mo.” This sort of mumbo jumbo may
impress the uneducated; but it makes lawyers the laughing stock of literate
fair, lawyers sometimes have the good grace to laugh at themselves. Hardly a
year goes by without someone sending Christmas greetings that parody the worst
habits of the profession. One year it was a card that began, “From
us (‘the wishor’) to you (hereinafter called ‘the wishee’).” Another year it
was a well known Christmas tale that began, “Whereas, on or about the night
Holiday of which one can take judicial notice is commonly called Christmas.”
To write parodies like these, someone, presumably a lawyer, has to say
“How can I modify perfectly lucid language to make is sound as though a lawyer
The cure for legalese is to reverse this process. Rules for plain
English may heighten your awareness, but the main thing is attitude and
determination. If you want to sound like an ordinary person instead of like a
lawyer, ask yourself at every turn, “How would I say this if I were speaking
to my next door neighbor or to my mother-in-law?”—assuming, of course, that
your next door neighbor and your mother-in-law are not lawyers.
I. VISIBLE ELEMENTS
rules below will help you identify legalisms and locate situations in which
you could tighten up your flabby prose. Follow these rules and your prose
will be visibly improved.
LEGALESE AND FOREIGN LANGUAGES. Legal writing has a few legitimate
terms of art—words or phrases that either cannot be easily translated or
perhaps should not be translated because the original language triggers
a doctrine that lawyers might not recognize by any other name (e.g., habeas
exceptions like these, however, however, the law works best even for lawyers
when non-lawyers can makes sense of it.
INSTEAD OF THIS:
Hotstuff has to establish (inter
alia) that the peppers were delivered to the right place and at the right
Hotstuff has to establish, among other things, that the peppers were delivered
to the right place and at the right time.
ORDINARY ENGLISH FOR LAWYERLY ENGLISH.
INSTEAD OF THIS:
He confessed prior to being
advised of his rights.
Mr. Noto signed the
contract. Said contract specified a price and a schedule of payments.
confessed before he was advised of his rights.
Not signed the contract that specified a price and a schedule of payments.
PARTIES BY NAME RATHER THAN BY THEIR POSITIONS IN COURT.
Calling parties by
positions often requires readers to skip back and forth between the text and
the cover sheet (“style of cause” in some jurisdictions).
Respondent and two other
shareholders set up Lakeside Realty in 1978.
Plaintiff claims that
Defendant had failed to provide payment for sixteen carloads of chile peppers
delivered over a six week period.
McIntyre and two other shareholders set up Lakeside Realty in 1978.
Hotstuff claims that Kiwimart had failed to provide payment for sixteen
carloads of chile peppers delivered over a six week period.
Referring to people by
their proper names can help avoid confusion on appeal, particularly when the
position of the litigants has changed from moving party to responding party.
Sometimes, of course, it is impossible to call parties by individual names,
particularly when there are multiple plaintiffs or multiple defendants. Then
you have no choice but to resort to their positions in court or to group them
under some other appropriate heading (e.g., “the survivors,” or “the victims,”
or “the Joneses”).
Practice varies regarding
subsequent references to persons named in the opening paragraphs. Should you
call them by their first names only—which some litigants might regard as
excessively familiar? Or by last names only, which some litigants might
regard as unmannerly?
Some lawyers think that by
calling opposing parties by their positions before the law (e.g., “applicant “
or “defendant”), they mask the humanity of opposing parties and make them less
sympathetic in the judge’s eyes. Most judges, however, having practiced law
themselves, are likely to see that ploy for what it is.
Certainly the most polite
option is to refer to litigants with their ordinary titles, (e.g., Mr., Miss,
Ms., Lieut., Rev., etc.). This is standard editorial practice in The New
York Times, even when dealing with the most heinous criminal. Oddly
enough, treating opposing litigants with this semblance of respect may be
paradoxically persuasive. If you call someone Mr. Capone, and then
calmly explain the irregularities in his tax returns, or Mr. bin Laden, and
then present compelling evidence of his complicity in terrorism, you seem to
be above politics, passion, and personal vendetta. You seem to be a servant
of the law, serenely objective, rather than a crusader whose reason may be
clouded by emotion.
Using conventional titles for all
parties, particularly when there is a legitimate argument at issue, endows
judgments and pleadings with a kind of magisterial dignity and mitigates the
losing party’s embarrassment. And when the losing or opposing party is
patently undeserving of respect, there is little danger that a proper title
will convey it; if anything, the subtle irony of unmerited deference is
persuasive in itself.
Hemphill responded that
McIntyre should either invest more capital or personally guarantee a loan.
Hemphill responded that Mr. McIntyre should either invest more capital or
personally guarantee a loan.
Subsequent references to parties in family law are particularly
difficult to manage. If the parties are divorced, they may object to being
called “the husband” and the “wife,” or “Mr. Jones and Mrs. Jones” (though in
this situation, the modern Ms. Jones serves a useful purpose because it
implies nothing about marital status). In custody disputes, it is often
possible to refer to the parties as “the mother” and “the father.” Depending
upon the culture and on the parties, first names might seem friendly or
inappropriately chummy. It’s all a matter of perception. All you can do is
consider the options and chose the one that best suits the circumstances.
Whatever you choose, be
consistent. Give everyone proper titles, or call everyone by last names
alone, or call them by their positions in court; but do not switch from one
convention to another just for the sake of variety.
Hotstuff Chile Pepper, Ltd. (hereinafter called "Hotstuff") seeks judgment for
breach of a contract. Hotstuff had agreed to . . . (18 words)
Hotstuff Chile Pepper, Ltd. ("Hotstuff") seeks judgment for breach of a
contract. Hotstuff had agreed to . . . (16 words)
OR BETTER YET,
Hotstuff Chile Pepper, Ltd. seeks judgment for breach of a contract. Hotstuff
had agreed to . . . (15 words)
Sometimes the identity of
parties can be easily inferred from the facts. For example, there is no need
to waste sentences identifying a father and mother if this information can be
easily conveyed in telling the story.
The applicant is John Smith
(hereinafter called “the father”). The respondent is Cheryl Ellis
(hereinafter called “the mother”)
John Smith and Cheryl Ellis
have been trying for years to agree on contact rights that would be
satisfactory to themselves and to their three daughters.
AS FEW WORDS AS POSSIBLE.
He underwent three
evidential breath tests by means of an evidential breath-testing device.
It is also necessary to
make clear that Officer Rigby accepted that there was no reason to stop the
defendant in the first place.
McFarland made the
acquisition of three buildings.
took three breath tests.
Officer Rigby admitted there was no reason to stop the defendant in the first
McFarland acquired three buildings.
THE VERB “TO BE” WHEN IT CAN BE REPLACED BY A MORE SPECIFIC VERB.
To apply this rule, you
should memorize all the forms of the verb “to be”—which is the most irregular
verb in English. It has eight basic forms:
am, are, is
be, being, been.
verb has legitimate uses, of course; but your writing will be more forceful
and more economical if you replace it with a more specific verb lurking
elsewhere in the sentence, disguised as an adjective or an abstract noun.
Boeing’s contention is that
those shares are worth $100 million.
Mr. Bledsoe has been
resistant to the advice of her counsel.
The argument advanced by
Stevens was that . . .
contends that those shares are worth $100 million.
Bledsoe has resisted the advice of her counsel.
Stevens argued that . . .
“IT” AND “THERE” AS DUMMY SUBJECTS. “It” and “there” are considered dummy
subjects (“It was” or “There were”) where they stand in for words that might
be the real subjects of the sentence. Like the verb “to be,” dummy subjects
have their legitimate uses. Sometimes, however, they can be replaced by a
real subject and a stronger verb.
INSTEAD OF THIS:
It was submitted by counsel
for the plaintiff that the extension was not qualified by the proviso.
Plaintiff's counsel submitted that the extension was not qualified by the
8. AVOID PASSIVE VOICE.
passive voice, the grammatical subject receives the action (e.g., “John was
kissed by Mary”), as opposed to the active voice, in which the grammatical
subject performs the action (e.g., “Mary kissed John). The passive voice has
legitimate uses, but lawyers tend to lapse into it unnecessarily when active
voice would be more direct and economical. Active voice is always more
economical and forceful.
No other evidence was
called by the Defendants to give support to the allegations.
Defendants called no other evidence to support the allegations.
USING WORDS WITH OVERLAPPING MEANING IN THE SAME SENTENCE.
appeal, appellant argues that . . .
building was round and circular in shape.
Appellant argues that . . .
The building was round.
IT GOES WITHOUT SAYING, LET IT GO UNSAID.
The parties are agreed that
this appeal comes before the High Court pursuant to § 26 of the Taxation
Review Authorities Act 1994 and Part XI of the High Court Rules.
(Just leave it out.)
If the parties had not
agreed to this, it would have been raised as an issue. Because it has not
been raised as an issue, it belongs among hundreds of other conceivable issues
that might have been concocted from the facts—none of which need mentioning.
A special meeting was
called and held to reconsider the resolution.
special meeting was held to reconsider the resolution.
Ordinarily, readers will presume that if a meeting has been held, it must have
been called. Only the exception to this presumption—an uncalled meeting, a
surprise meeting, a secret meeting—would have to be signaled.
INSTEAD OF THIS:
Mr. Justice LeDain, for the majority,
considered the issue of when the relevant provision took effect as well as how
the effect of the words was to be characterized. LeDain J. held that the
phrase “whether or not he believes that she is fourteen years of age or more”
defined one of the constituent elements of the offence, the mens rea,
at the time of the offence, not at the time of the trial.
LeDain J. held that the phrase “whether or
not he believes that she is fourteen years of age or more” defined one of the
constituent elements of the offence, the mens rea, at the time of the
offence, not at the time of the trial.
Justice LeDain held that the phrase was relevant, it would be safe to assume
that he gave the issue some thought.
11. AVOID BLOCK QUOTATIONS.
readers, most judges and lawyers skip over block quotations, hoping to glean
their essence from what precedes or follows. As writers, however, they seem
to imagine that their readers will be more patient than themselves, carefully
examining what they themselves would skip, searching for a nugget of authority
buried within a mound of dross.
The best way to avoid this problem is to trust your ability to
paraphrase. You, after all, have done the hard work. You have read and
deciphered the authority, and you have reached a conclusion about its
relevance to the issue at hand. Why make your reader repeat that task? Just
say what the passage means, in your own words, instead of pasting the original
passage in a form the reader is sure to skip.
If you trust your ability
to paraphrase—and if you think your reader trusts your ability—you need not
quote. On the other hand, if you would like to provide your readers with the
original text for their convenience, just in case they might like to check
your paraphrase, then go ahead and quote it. But precede the quoted
material with your own paraphrase. The paraphrase will assist your readers in
deciphering what may be difficult language, like Lord Diplock’s in the passage
below; and it will ensure that readers who are inclined to skip the quoted
material will not miss the inference that you want them to draw from it.
INSTEAD OF THIS:
All the authorities confirm
the fundamental doctrine stated by Diplock LJ in Freeman & Lockyer (A Firm)
v Buckhurst Park Properties (Mangal) Limited  2 QB 480 at 503 in
An “apparent” or
“ostensible” authority … is a legal relationship between the principal and the
contractor created by a representation, made by the principal to the
contractor, intended to be and in fact acted upon by the contractor, that the
agent has authority to enter on behalf of the principal into a contract of a
kind within the scope of the (“apparent”) authority so as to render the
principal liable to perform any obligations imposed upon him by such
contracts. To the relationship so created the agent is a stranger. He need
not be (although he generally is) aware of the existence of the representation
but he must not purport to make the agreement as principal himself. The
representation, when acted upon by the contractor by entering into a contract
with the agent, operates as an estoppel, preventing the principal from
asserting that he is not bound by the contract. It is irrelevant whether the
agent had actual authority to enter into the contract.
Normally, a company is not
bound by contracts entered upon by agents who have no authority to do so.
However, if someone
represents himself or
herself as an agent of a company with authority to sign contracts for that
company, and if the company does anything that would give the impression that
the employee did in fact have that authority, the company may be considered
bound by those contracts. (See Diplock LJ in Freeman & Lockyer (A Firm)
v Buckhurst Park Properties (Mangal) Limited  2 QB 480 at 503.)
If you pleading or judgment includes paraphrases of more than a
few pages, consider attaching the original passages in an appendix instead of
in the main text. If your jurisdiction allows you to file pleadings
electronically, you might also use hyperlinks to lead readers from the
citation to the full text and back again.
12. AVOID QUOTING THE CHARGE (UNLESS THE LANGUAGE OF THE CHARGE
IS AT STAKE).
language of official charges or complaints is often clumsy and antique.
Normally there is no need to quote it, least of all at the beginning of a
judgment or pleading, where a short paraphrase is all the reader needs. If
you say that “John Jones has been charged with grand larceny,” or that “Mary
Callahan is suing her employer for hazardous conditions at work,” you need not
quote the charge verbatim. Save the exact language for the body of the
argument if it is necessary to prove a point.
INSTEAD OF THIS:
Erik Causewell is charged
with two offences under the Road Traffic Ordinance 1960 (hereafter referred to
as “the Ordinance”). Firstly, that at Eggerston on 8th May 1998
being the driver of a private car number 13646, negligently drove that motor
vehicle on Vaitele Street and did thereby cause death to Kristi Posoli,
contrary to s.39A of the Ordinance. Secondly, that on the same day and place,
when driving the said vehicle, he was under the influence of drink to such an
extent that he was incapable of having proper control of the said vehicle,
(hereafter referred to as the “drink and drive charge”) contrary to s.40(1) of
Erik Causewell is charged
with negligent driving causing death and with driving under the influence of
The extra detail in the
charge may be necessary in the discussion of a particular issue, especially if
the charge is defective or the meaning of the language is at issue. But it is
rarely necessary in an opening paragraph. There all a reader needs is a
generic description of who did what to whom—just enough detail to provide a
context in which the issues will make sense.
13. DON’T PUT DATES, TIMES, OR PLACES IN THE JUDGMENT JUST
BECAUSE THEY HAPPEN TO BE IN THE RECORD.
On 21 January 1998 the
wife commenced proceedings under the Matrimonial Property Act in the Family
Court at Auckland. Various conferences and orders followed and on 26 February
1999 the Court directed that the matrimonial property application be set down
for a 2 day hearing.
these burden the reader for no purpose. Better not to put them in unless they
affect the resolution of the case.
INSTEAD OF THIS:
The defendant was driving his
private car—a two-door sedan registered number 13646.
The defendant was driving his car.
Unless there is some
question of identity to be settled by the registration number, or some reason
to distinguish a private car from some other sort of car, these details should
be omitted. Details of this sort distract readers, who think for a moment
that they must be significant, or else they would not be there.
The court reporter’s job is
to reproduce the record. The job of the attorney and the judge is to
interpret the record. By the time you write the facts, you should have
drawn some inference from them. It is a mistake to deploy the evidence as if
you were a secretary recording minutes—a blow by blow summary of what one side
said followed by what the other side said.
disposition of the facts, then, should be designed to lead the reader to the
same inference. In practical terms, this requires distinguishing between
essential facts—facts that support the inference you consider important—and
everything else in the record.
I put a question
mark after this rule, because some of the finest sentences in law and
literature are long ones. A more accurate rule would be, “If you don’t know
how to write a good long sentence, stick to short ones.”
The problem with many legal sentences is not their length, but
their tangled syntax—clauses and phrases jumbled like a spilled box of
toothpicks. The obvious solution is to break long sentences into two or three
short ones. It also helps to look for suppressed narratives in long
sentences. If the sentence contains two or three events, try putting the
events in short sentences arranged chronologically.
INSTEAD OF THIS:
The government’s concern lest the Act be held to be a
regulation of production or consumption rather than of marketing is
attributable to a few dicta and decisions of this court which might be
understood to lay it down that activities such as “production,”
manufacturing,” and “mining” are strictly “local” and, except in special
circumstances which are not present here, cannot be regulated under the
commerce power because their effects upon interstate commerce are, as a matter
of law, only indirect.
In the past, this court has
held that production, manufacturing, and mining are local activities, which
are normally not subject to the commerce power. Now the government is
concerned that we will exempt marketing from federal regulation, on the theory
that is a local activity with only indirect effects on interstate commerce.
write a series of any kind, make sure the elements in the series are parallel
in form and content.
None of these cases involved patients who
were terminally ill, a process hidden from the public, involving secrecy,
lies, the destruction of evidence or the treating physician acting alone.
None of these cases involved patients who were terminally
ill. None of them involved secrecy, lies, a decision process hidden from the
public, or the destruction of evidence. None of them involved a physician
REDUNDANT DOUBLETS AND TRIPLETS.
Some conventional doublets and triplets (e.g., “Will and Testament,” “give,
bequeath, and devise”) can be traced to historical periods when English law
was an unstable mixture of Old French, Latin, and Anglo-Saxon. Lawyers back
then were careful to cover all bases. In modern usage, if the second and
third words are intended to signal a distinction, that distinction is likely
to have been lost in the annals of history.
INSTEAD OF THIS:
ajudged, and decreed
residue, or remainder
II. INVISIBLE ELEMENTS
Punctuation and grammar are invisible elements of style. People will never
congratulate you for correct grammar, any more than they would recommend a book
for its flawless punctuation. But make a mistake, even a trivial one, and the
damage to your credibility can be completely out of proportion to the error.
In some cases,
punctuation and grammar are more than cosmetic flaws. The rules, which are not
nearly as absolute as one might imagine, are often invoked to determine the
precise meaning of a clause in a contract, a statute, or a precedent—the
presumption being that the judge or lawyer or legislator actually knew the
rules. Sometimes millions of dollars hang in the balance. Sometimes, in fact,
it is a matter of life and death.
about punctuation and grammar are too numerous to mention. Some are more
comprehensive than others, some are easier to use than others, but they all
agree about the essentials. The important thing is choose one or two favorites
and keep them close at hand when you write.
frequently overlooked source is somewhat misleadingly called “A Handbook of
Style,” which you can find at the back of every Webster’s Collegiate
Dictionary. It does not have a thumb tab, so you have to check the Table of
Contents at the front of the dictionary to find it. Once you do, glance at it
quickly just to get a sense of what it covers. Then, when you have a
punctuation question, you will know where you can find an answer.
American Heritage Dictionary has no comparable guide to punctuation, but it
does offer more explicit guidance in matters of usage. If you worry about
whether data should be singular or plural, for example, or when you
should use between as opposed to among, this dictionary will let
you know what its usage panel prefers. A usage panel is no more scientific than
a focus group, but you might find its opinion worth considering when you have no
strong opinion of your own. Even more useful in these matters, however, is A
Dictionary of Modern American Usage, now available in a much improved
edition by Bryan Garner (see below, “Recommended Reading”), who is also the
editor of the current edition of the indispensable Black’s Law Dictionary.
In addition, every
court system, law review, legal reporter, publishing house, or newspaper may
have its own set of rules or its preferred rulebook. Consult these when you
write for publication.
no point repeating here the rules you already know: begin every sentence with a
capital letter, end it with a period or question mark (you won’t find many
exclamation points in legal writing), put quotation marks around quoted
material. Everybody knows these things. The rules below are intended to cover
just those situations that seem to be common problems for lawyers and judges.
1. DON’T USE COMMAS UNLESS YOU NEED THEM.
This rule presumes that you know where you do need
commas. Ordinarily commas are used in three situations:
set off clauses or phrases tucked within a sentence.
in a passionate dissent, reviewed the history of habeas corpus.
The defendant, who
had twice escaped custody, was escorted into the court with chains on his hands
2) To set
off clauses and phrases at the beginning or the end of a sentence.
In a passionate
dissent, Justice O’Connor reviewed the history of habeas corpus.
When the defendant
entered the courtroom, the jurors were startled to hear a chain rattling
between his feet.
At the date of
separation no formal appraisal was available, although the parties had some
separate independent clauses joined by and, or, but¸ for.
occurred in California, but the suit was filed in Oklahoma.
The defendant rose
slowly from his chair, and the foreman intoned the verdict in a tone reeking of
editors disagree about whether you should put a comma before and or or
joining the last two elements in a series of three or more.
The judgment was
verbose, obscure, and just plain wrong.
The judgment was
verbose, obscure and just plain wrong.
the comma in this situation because it seems more “normal” to me—that is, I see
it more often than not in what I read. Both versions are defensible; it’s a
matter of personal preference. But be consistent: don’t switch randomly from
one convention to the other.
2. PUT A PAIR OF COMMAS AROUND CLAUSES BEGINNING WITH “WHICH.”
which was filed at this hearing, indicated a value of $13,000.
One comma is enough if the which clause occurs at
the end of a sentence.
The wife signed the agreement , which was then
signed by the husband.
3. DON’T CONFUSE “WHICH” WITH “THAT.”
When you cannot put a comma before a which,
you probably should have written “that.”
satisfied all claims, which either party might have against the other under the
Matrimonial Property Act. (WRONG)ma before and or or
joining the last two elements in a series of three or more.
The judgment was
verbose, obscure, and just plain wrong.
The judgment was
verbose, obscure and just plain wrong.
the comma in this situation because it seems more “normal” to me—that is, I see
it more often than not in what I read. Both versions are defensible; it’s a
matter of personal preference. But be consistent: don’t switch randomly from
one convention to the other.
2. PUT A PAIR OF COMMAS AROUND CLAUSES BEGINNING WITH “WHICH.”
which was filed at this hearing, indicated a value of $13,000.
One comma is enough if the which clause occurs at
the end of a sentence.
The wife signed the agreement , which was then
signed by the husband.
3. DON’T CONFUSE “WHICH” WITH “THAT.”
When you cannot put a comma before a which,
you probably should have written “that.”
satisfied all claims, which either party might have against the other under the
Matrimonial Property Act. (WRONG)
is normally used to insert non-essential information into a sentence. This is
why which clauses are normally set off by parenthetical commas. But
because the final clause in the example provides essential information,
the comma should be omitted and the which changed to that.
satisfied all claims that either party might have against the other under the
Matrimonial Property Act. (RIGHT)
strike you as an obscure and pedantic rule, but in some circumstances it affects
the meaning of a sentence. Notice the difference between the following two
which was filed at this hearing, indicated a value of $13,000.
The appraisal that
was filed at this hearing indicated a value of $13,000.
The first version implies that
there was only one appraisal. The second suggests that there may have been
PUT ELLIPSIS DOTS AT THE BEGINNING OF QUOTED MATERIAL.
According to the police officer’s report, the
“. . . would have been travelling at least
ellipsis dots are unnecessary because the initial lower case w in
“would” indicates that words have been omitted at the beginning of the quoted
According to the
police officer’s report, the defendant’s jeep “would have been travelling at
least 80kph.” (RIGHT)
A modifier is
misplaced if it seems to describe the wrong word.
based on previous experience with the defendant, felt it best to contain him in
the vehicle. (WRONG)
Based on the
foregoing testimony I find that the defendant intentionally concealed the
These sentences suggest that the
constable and the judge were themselves somehow based on what they observed.
6. MAKE SURE SUBJECTS AND VERBS AGREE.
The limits of
police powers to stop a vehicle on a road are not entirely clear and has been
debated for some time. (WRONG)
The subject of “has been” in this example is “limits.” Every competent
speaker of English knows that “limits has been” is wrong, but writers sometimes
get confused when the subject and the verb are separated, as they are in this
case, by intervening words.
The limits of
police powers to stop a vehicle on a road are not entirely clear and have been
debated for some time. (RIGHT)
SURE THE VERB AGREES WITH THE SUBJECT, EVEN IF IT LINKS A PLURAL NOUN WITH A
on sovereign immunity has become a vexed question. (WRONG)
on sovereign immunity have become a vexed question. (RIGHT)
If the correct version seems awkward to you,
rephrase the sentence entirely.
The courts have
given mixed signals regarding sovereign immunity.
SURE OBJECTS ARE IN THE OBJECTIVE CASE.
The Master asked
my learned opponent and I to submit additional evidence. (WRONG)
Between you and
I, there are no significant issues in this case. (WRONG)
Linguists call this error
“hypercorrectness”: trying too hard to get it right—a result, no doubt, of the
unfortunate writer’s having been corrected by schoolmarms and schoolmasters for
saying things like “Mickey and me went to the movies.”
The error normally occurs
when there are words between the verb or preposition and first person pronoun
(I/me). The solution is to remove the intervening words and trust your ear.
You wouldn’t say, “The Master asked I to submit additional evidence.” Nor would
you say, “Between I and you” in any context. So don’t let the intervening
words confuse you about the correct form of the pronoun.
The Master asked
my learned opponent and me to submit additional evidence. (RIGHT)
Between you and
me, there are no significant issues in this case. (RIGHT)
9. USE POSSESSIVES BEFORE GERUNDS.
A gerund is the –ing form or a verb used as a noun. (It is
not to be confused with a present participle, which is the –ing form of a verb
used as an adjective or part of a compound verb.)
This agreement was
conditional upon the plaintiff securing suitable premises in the North Mall in
Ulster Street Hamilton. (WRONG)
remained on the property despite the defendant telling him to leave. (WRONG)
almost as an afterthought, mentioned that he felt the defendant’s driving
warranted him being stopped and spoken to.” (WRONG)
This is a rule few people
understand; but those who do will take notice if you get it wrong. Notice that
in the last example, the writer gets it right at first (“the defendant’s
driving”), but then errs at the end (“him being stopped”).
This agreement was
conditional upon the plaintiff’s securing suitable premises in the North
Mall in Ulster Street Hamilton. (RIGHT)
remained on the property despite the defendant’s telling him to leave.
almost as an afterthought, mentioned that he felt the defendant’s driving
warranted his being stopped and spoken to.” (RIGHT)
If the correct version sounds awkward, rephrase
the sentence entirely.
remained on the property even though the defendant had told him to leave.
10. DON’T SPLIT
infinitive is the form of a verb preceded by “to” (e.g., “to file,” “to argue,”
“to grant,” “to deny,” etc.).
there a lawful basis to initially search the defendant's apartment? (WRONG)t
This is a silly rule, but it
has been around for so many centuries that people are accustomed to seeing it
observed. It is based on a faulty analogy with Latin, in which infinitives
consist of one word instead of two and are therefore impossible to split. If
you can avoid splitting an infinitive, you should do so rather than risk
distracting those few readers who would care.
there a lawful basis to search the defendant's apartment initially? (RIGHT)
When the correct version
strikes you as awkward, rephrase the sentence. Sometimes, however, you may
choose to defy convention and split an infinitive just because you prefer it
END SENTENCES WITH PREPOSITIONS.
Prepositions are words that
show relationships, including relationships in time, space, or agency (e.g.,
“by,” “for,” “with,” “before,” “on,” “upon,” etc.).
The rule against ending
sentences with prepositions is also based on a faulty analogy with Latin, and it
occasionally does violence to the natural idiom of English. In Latin and in
languages derived from Latin, prepositions are a group of words that just don’t
make any sense unless they have a noun after them. That’s why these words are
called “pre-positions.” They must have another word after them.
You can’t imagine a sentence ending with cum in Latin any more than you
could imagine one ending with avec in French or con in Spanish.
But English is different from
these other language. It is basically a Germanic language, and in Germanic
languages, words that sometimes behave like prepositions can in fact
occur at the end of a sentence, as illustrated in the following example, which
occurred in the highly respected New York Tmes Book Review:
One is Heidi
Franklin, an art historian whom he observes to be as homely as himself and whom
he resolves to later hit upon.
though it makes no sense to subject English to the rules of foreign languages,
the notion that we should imitate Latin in this matter has been with us
for so long (since that eighteenth century) that many people accept it as
sacred. Violating this rule, then, is likely \to distract people who happen to
though, following the rule is more awkward than violating it. Robert Stone, the
author of the example above could have written the following sentence
One is Heidi
Franklin, an art historian whom he observes to be as homely as himself and upon
whom he resolves to later hit.
bit stilted and antique. Stone, was right to follow the natural inclinations of
the English language and ignore the artificial rule.
have noticed that Stone also splits an infinitive: “to later hit.” So to be
perfectly “correct,” he should have written this sentence:
One is Heidi
Franklin, an art historian whom he observes to be as homely as himself and upon
whom he resolves to hit later.
read this sentence aloud, you will probably agree that the rules were broken
with good reason. Still, it is good to know the rules, so you can observe or
break them by choice rather than by accident.
FOR PLAIN ENGLISH
Give your best draft to a
non-lawyer who knows nothing about the case, and ask that reader to circle any
words or phrases that she or he has to read twice, along with any words or
phrases that she or he does not understand. Translate these words or phrases
to plain English if you can—unless they belong to the handful of exceptions that
can be justified as terms of art. Do not defend yourself by saying, “Oh,
lawyers would know what I mean.” That’s an excuse the best legal writers
avoid. Law is not just for lawyers. And even within the law, legal documents
routinely find their way to lawyers who may not be familiar with terms that seem
ordinary to those who are working within a specific subspecialty.
Proofreading normally requires a second pair of
eyes. Give your draft to someone who knows the rules. Give that person free
reign with a blue pencil—the tool editors traditionally use to repair faulty
punctuation and grammar, and to banish words that do not earn the space they
IV. RECOMMENDED READING
Garner, Bryan A. A
Dictionary of Modern American Usage. New York: Oxford UP, 1998.
Goldfarb, Ronald L., and
James C. Raymond. Clear Understandings: A Guide to Legal Writing.
With Ronald L. Goldfarb. New York: Random House, 1983.
Lanham, Richard. Revising
Prose. 4th ed. Boston: Allyn and Bacon, 1999.
LeClercq, Terri. Expert
Legal Writing. Austin: University of Texas Press, 1995.
Mailhot, Louise, and James D.
Carnwath. Decisions, Decisions. . . Cowansville (Québec): Les Éditions
Yvon Blais, 1998.
Mellinkoff, David. The
Language of the Law. Boston: Little, Brown, 1962.
Writing: Sense and Nonsense. New York: Scribner, 1982.
Procopiow, Norma. The
Elements of Legal Prose. Boston: Allyn and Bacon, 1999
Raymond, James C. Writing
(Is an Unnatural Act). New York: Harper, 1980.
Smith, George Rose. “A Primer
of Opinion Writing, for Four New Judges,” 21
REV. 197 (1967).
Strunk, William, Jr. and E.
B. White. The Elements of Style. 4th ed. Boston: Allyn and
C. Plain English for Lawyers. 4th edition. Durham: Carolina
Academic Press, 1998.
A Checklist for
James C. Raymond, Ph.D.
Read the first
it say WDWTW/WAAW?
it list the issues in plain language?
Glance at the