Established 1988

## Honourable Justice Roslyn Atkinson

Delivered by the Honourable Justice Roslyn Atkinson to Magistrates Conference, Gold Coast, March 21, 2002.

To 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.:

“Fair trial, fair judgment…

Evidence, which issued clear as day…

… [Q]uench your anger; let not indignation reign

Pestilence on our soil, corroding every seed

Til the whole land is sterile desert…

… [C]alm this black and swelling wrath.

It 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.

A 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?

The first matter to consider is the purpose of the judgment. To my mind there are four purposes for any judgment that is written:

(1)               To clarify your own thoughts;

(2)               To explain your decision to the parties;

(3)               To communicate the reason for the decision to the public; and

(4)               To provide reasons for an appeal court to consider.

May I deal with these purposes in reverse order.

Firstly, 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.

This 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”.

So 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 consider.

(2)- Information to the public.

Courts, 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.

(3)-Communicating with the parties.

The 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.

I 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 accessible?

In my view the secret is clarity. If your ideas are clear then you will be able to express them clearly.

Clarity of thinking and therefore expression has two stages: first structure and then style.

Dealing 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

A 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.

The magistrate replied, “Clerk, please enter a guilty plea. The defendant is sentenced to 30 days.”

So I’ am not taking about that kind of FLAC, I’ am talking about the structure of a judgment.

F          for Facts

L          for Law

A         for Application, and

C         Conclusion.

That 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.

F 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.

At 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 interesting way.

The 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.

The 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.

This leads, of course, to the conclusion. The conclusion should be the inevitable result of the application of the law to the facts.

When 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.

Within 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.

1.                  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 plague.

2.                  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.

Another example is Denny v Reader Industries. The opinion in the case contains very few words beyond the following:

“The appellant has attempted to distinguish the factual situation in this case from that in [a prior case]. He didn’t. We couldn’t affirmed.”

3.                  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.

4.                  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:

“In proportion as the manners, customs and amusements of a nation are cruel and barbarous; the regulations of its penal code will be severe.”

“In proportion as men delight in battles, bull fights, and combats of gladiators, will they punish by hanging, and the rack.”

5.                  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:

“If 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.”

In another episode a frustrated Jim Hacker says to Sir Humphrey:

“When 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 answer!”

Sir Humphrey replies:

“Well 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:

“Prime 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 key?”-

1. Avoid obvious errors. A number of frequent errors can be seen in the following rather amusing list:

1.                            Subjects and verb always has to agree.

2.                            Make each pronoun agree with their antecedent.

3.                            Just between you and I, case is important too.

4.                            Being bad grammar, the writer will not use dangling participles.

5.                            Join clauses good, like a conjunction should.

6.                            Don’t write run-on sentences they are hard to read, you should punctuate.

7.                            Don’t use no double negatives. Not never.

8.                            Mixed metaphors are a pain in the neck and ought to be thrown out the window.

9.                            A truly good writer is always especially careful to practically eliminate the too frequent use of many adverbs.

10.                  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.

11.                        About them sentence fragments. Sometimes all right.

12.                        Try to not ever split infinitives.

13.                        Its important to use your apostrophe’s correctly.

14.                        Do not use a foreign term when there is an adequate English quid pro quo.

1. 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:

“Before 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 begins.”

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.”

Conclusion

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.

JUDGMENT WRITING

Mr. Justice (R) Muhammad Bashir Jehangiri

The 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 Judge.

INTRODUCTION

WHAT IS A JUDGMENT?

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 court.

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 court.

ESSENTIALS OF JUDGMENT

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 judgments. Sections 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.

FORM 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 be complete.

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 ITSELF

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.

LANGUAGE OF JUDGMENT

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 denied.

JURISDICTIONAL RECITALS

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.

CONDITIONAL JUDGMENTS

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.

ALTERNATIVE JUDGMENTS

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.

DICTA-BINDING FORCE

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 anything.

JUDGMENT BASED ON EVIDENCE - FRAGILITY OF MEMORY

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.

# Judgment Writing

Gentlemen,

It is 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?

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.

The 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:-

(i)                            Magisterial or imperative.

(ii)                           Laconic or sententious.

(iii)                          Conversational or homely

(iv)                          Refined or artificial.

(v)                           Demonstrative or persuasive.

(vi)                          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:-

"reasons 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".

In 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:

"There 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:

"There is a well known adage that a Judge must wear all the laws of the country on the sleeve of his robe".

If 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.

(i)            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 government money.

(ii)           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 hereunder:-

" 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.......

We 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

question 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 1950's.

PRINCIPLES OF JUDGMENT WRITING IN CRIMINAL TRIALS

Mr. Justice M. Mahboob Ahmed

## Introduction

My duty as a Judge must be "to objectify the law, not my own aspirations, convictions and philosophies, but those of men and women of my time". Cordozo in his "Nature of the Judicial Process". Before discussing the principles of judgment writing, it seems appropriate to know as to what 'Judgment' means in judicial parlance. It would be interesting to note that judgment has not been defined either in the Pakistan Penal Code (XLV of 1860) or in the Code of Civil Procedure 1908 or in the Code of Criminal Procedure, (V of 1898). For academic purposes, therefore, the dictionary meaning may be resorted to Judgment, according to Oxford Advanced LEARNER's Dictionary of Current English, by A.S. Hornby, means giving a decision after trial'. In the Tomlin's Law Dictionary the judgment has been described as 'the sentence of law or decisin pronounced by the Court, upon the matter contained in the record'.

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:-

"A 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."

Judgment has been looked at from another angle in Surya Rao V. Sathihiraju (AIR 1948 Mad. 510) in following manner:-

"In 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.”

Classification of Judgments

The judgments may be classified as follows:-

1)             Class of Court - Civil, Criminal, Revenue;

2)             Stage of list - judgments of trial Courts, appellate Courts or Courts of revision;

3)             Nature of trial - regular or summary;

4)             Nature of dispute - original causes or miscellaneous proceedings.

Classes of Courts

Generally speaking, there are civil, criminal and revenue courts and the type of judgment would differ in each cases.

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.

Stage of Litigation

According 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.

Regular 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.

Form and Requirements of a Judgment

Form

2.             Facts submitted by the prosecution and accused;

3.             Points for determination;

4.             Decision on these points;

5.             Reasons for the decision;

6.             Final order convicting or acquitting the accuse;

7.             Awarding sentence in case of conviction;

8.             Signature and the date of decision and announcement.

Legal Requirements

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.

Language

The following rules should be kept in mind regarding the language of a judgment: -

1.             A judgment should be written in the language of the Court or in English.

2.             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.

3.             The judgment should not be prolix or verbose "A prolix judgment is a torture to write and a torture to read".

4.             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.

Written 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.

Qisas and Diyat

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:

a)             Punished with death as qisas.

b)            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

c)             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.

The Determination of Facts and the Application of Law

The 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.

Application of Law

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.

Discussion of Evidence

Discussion 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.

Punishment

## Purpose

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.

Conclusion

Judgment writing is an art by itself and cannot possibly be acquired in any perfection without adequate knowledge, long practice and experience.

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DECISION AND JUDGMENT

Mr. 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."

2.             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."

3.             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.

4.             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: -

SURA "NISA"

(58) Allah doth command you

And when ye judge

Between man and man,

That ye judge with justice:

Verily how excellent

Is the teaching, which He giveth you!

For Allah is he who heareth

And seeth all things.

(105) We have sent down

To thee the Book in truth,

That thou mightest judge

Between men, as guided

By Allah: so be not (used)

who betray their trust:

(135) Aye who believe!

Stand out firmly

For justice, as witnesses

To Allah, even as against

It be (against) rich or poor:

For Allah can best protect both.

Swerve, and if ye

Distort (justice) or decline

To do Justice verily

Allah is well acquainted

With all that ye do.

SURA MA-IDA

(8) O ye who believe!

Stand out firmly

For Allah, as witness

To fair dealing, and let not

The hatred or others

To you make you swere

To wrong and depart from

Justice. Be just: that is

Next to Piety: and fear Allah,

For Allah is well acquainted

With all that ye do.

(42) ... ...

If thou judge, judge

In equity between them.

For Allah loveth those who judge in equity

5.             The sayings of Holy Prophet are also replete with guiding principles which emphasise the need for being just and perfectly honest.

6.             '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:

"The 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."

In Encyclopaedia Britannica, it has been defined as:-

"A term used in the abstract for the quality of being or doing what is just i.e. right in law and equity."

In Black's Law Dictionary, it finds mention in the following words:-

"The constant and perpetual disposition to render every man his due; the conformity of our actions and our will to the law."

In Obsborn's Concise Dictionary 'Justice' means:-

"The upholding of right; and punishment of wrongs, by the law; the constant and perpetual wish to give each man hid due."

7.             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 wrong.

8.             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.

9.             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.

10.           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.

11.           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:-

(i)            the concise statement of the case;

(ii)           the points for the determination of issues;

(iii)          the decision of court with regard to the issues; and

(iv)          reasons for the decision.

12.           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.

13.           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.

14.           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:-

(1)           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.

(2)           The judgment should be written either in the language of the Court, or in English;

(3)           When a judgment is not written by the Presiding Officer with his hand, every page of such judgment shall be signed by him;

(4)           It should be pronounced in open court after it has been written and signed;

(5)           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;

(6)           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;

(7)           If it is the judgment of a Court of Small Causes, it should contain the points for determination and the decision thereupon;

(8)           It should contain the direction of the Court as to costs;

(9)                 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;

(10)         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;

(11)         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;

(12)         The reference to the findings of witnesses should invariably be by his name and number as a witness;

(13)         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;

(14)         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 sub-ordinate courts;

(15)         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 arguments;

(16)         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

(17)         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.

15.           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.

16.           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: -

(a)           The decision being contrary to law or usage having the force of law;

(b)           The decision having failed to determine some material issue of law or usage having the force of law;

(c)           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.

17.           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 Court.

18.           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:-

(a)        The points for determination;

(b)        The decision thereon;

(c)        The reasons for the decision; and

(d)        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 therein.

19.           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.

20.           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 defeated.

21.           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 Procedure, 1898.

22.           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: -

(a)           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

(b)           In the language of the court, or in some other language which the accused or his pleader understands.

23.           Elucidating the same provisions Rule 1, Chapter 1-H, Volume III of Rules and Order of High Court lays down as under:-

(i)                   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.

(ii)                  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.

24.           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 Court.

25.           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.

26.           To sum up the entire discussion, the guiding principles that formulate a good judgment can be resumed as under:-

(1)           A judgment should not necessarily be lengthy.

(2)           It should avoid repetition especially with reference to the deposition of the witnesses.

(3)           It must be based on the evidence on record.

4)             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.

(5)           It should be precise and concise.

(6)           There should be coherence in the judgment.

(7)           Findings should never be recorded without necessary discussion of evidence and reasons for the findings.

(8)           It must be delivered without any delay after the conclusion of trial and arguments.

(9)           It should be comprehensive to all the points involved in the case.

(10)         No findings should be given on the point, which has not any issue.

(11)         Unnecessary criticism and adverse remarks have to be avoided. The criticism where it is unavoidable should be sober and in becoming language.

(12)         It should not indicate the role of moral of political reformer.

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JUDGMENT ---- WHAT AND HOW TO WRITE

Mr. 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.

The 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 the language.

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":

"My 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 one."

" 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."

This 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:

"This 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".

This 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:

"In the end there is this problem before us.

As the great historian Lord Act-on said:

'all power tends to corrupt. Total power corrupts absolutely.'

Who is to control the exercise of power? Only the judges. Some one must be trusted. Let it be the judges."

This is what you have to keep in mind while writing judgment.

THE ARCHITECTURE 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.

“I had 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.

They 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 after rain.

I.  THE UNIVERSAL LOGIC OF THE LAW

Every legal argument can be distilled to the same simple structure, a variation of the classic categorical syllogism:

These facts (narrate facts) . . .

viewed in the context of  this law/contract/regulation/

precedent/section of the Constitution/principal of equity (choose one) . . .

lead to this conclusion (relief sought).

The logic never varies.  At trial the judge’s job is to discover this pattern of thought in the morass of facts, distortions, 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:

1.      The litigants may contest factual allegations.

2.      Or they may claim that the other side has cited the wrong law.

3.      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.

II.      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 painting.  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.

Furthermore, the 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 not anticipate.

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.

1.      Identify and partition the issues.

2.      Prepare an OPP/FLOPP analysis for each issue.

3.      Arrange the analysis of issues like rooms in a shotgun house.

4.      Prepare an outline with case-specific headings.

5.      Write a beginning.

6.      Write an ending.

7.      Review your draft with a checklist and a friend.

1.   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.

2.    PREPARE 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 Position)

FLOPP (Flaw in Opposing Party’s Position

CONCLUSION

(If you 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.

CONCLUSION:  Therefore 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 examine it.

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 your conclusion.

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. Respondent, however, 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 judiciary. 3. 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 figure below). 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 best. 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. Although 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. 4. PREPARE AN OUTLINE WITH GENERIC AND CASE-SPECIFIC HEADINGS. If a 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 issues. 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. You can phrase it as a question: Is the University of Montevallo an Agency of the State? Or you can phrase it as a topic: State Agency. 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. Even 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). 5. WRITE A BEGINNING. It 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 this: 1 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 like these: DECLARATORY JUDGMENT (Article 453 C.P.C.) This Court, having examined the proceedings and the exhibits, considered the arguments of counsel, and duly deliberated, doth now render the following Declaratory judgment: 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 decide. This combination 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 example: 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 writing. 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. In 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: [1] 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 trial. 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: [1] Rosemary 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: a) 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 in its “capital”: i) as “reserves” pursuant to ss. 181(1) and 181.2(3)(b), or ii) as “other surpluses” pursuant to s. 181.2(3)(a); b) 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; c) 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

s.181.2(3)(h).

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.

This version 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 by heart:

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 Act.

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:

·        Whether the Appellant is entitled to deduct the amounts of the estimates from its “capital.”

·        Whether the Appellant is entitled to deduct the amounts of the Estimates from its revenue

·        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: [1] 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. [2] 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). Notice that 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. A beginning like this entices the reader to continue reading. Who would not be curious to know how the case was resolved? 6. 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 nutshell. 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. The concluding 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: CONCLUSION 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. It would 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. CONCLUSION 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 information. 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 this court. 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: [14] 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. [15] The appeal is dismissed. Enough said. 7. 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. · Check for 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. If your friend doesn’t answer any of these questions to your satisfaction, don’t explain. Revise. 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. IV. RECOMMENDED READING 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. PLAIN ENGLISH James C. Raymond, Ph.D. © 2002 From a 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. Why then do we complain when lawyers write about the law in a language that excludes non-lawyers? Because 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. There is another good reason for lawyers to write plain English: it enables them to understand one another. In fact, sometimes it enables them to understand themselves. One of 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. Legal 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. I 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. The 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. And Nina 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. Good 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. Good 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 decree nisi 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. Nor is 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 society. To be 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 before the 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 wrote it?” 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 OF STYLE The 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. 1. AVOID 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 corpus, estoppel). Aside from 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 time. DO THIS: Hotstuff has to establish, among other things, that the peppers were delivered to the right place and at the right time. 2. SUBSTITUTE 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. DO THIS: He confessed before he was advised of his rights. Mr. Not signed the contract that specified a price and a schedule of payments. 3. CALL 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). INSTEAD OF THIS: Respondent and two other shareholders set up Lakeside Realty in 1978. INSTEAD OF THIS: Plaintiff claims that Defendant had failed to provide payment for sixteen carloads of chile peppers delivered over a six week period. DO THIS: John McIntyre and two other shareholders set up Lakeside Realty in 1978. DO THIS: 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. INSTEAD OF THIS: Hemphill responded that McIntyre should either invest more capital or personally guarantee a loan. CONSIDER THIS: Mr. 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. 14. AVOID PARENTHETICAL ALIASES. INSTEAD OF THIS: Hotstuff Chile Pepper, Ltd. (hereinafter called "Hotstuff") seeks judgment for breach of a contract. Hotstuff had agreed to . . . (18 words) DO THIS: Hotstuff Chile Pepper, Ltd. ("Hotstuff") seeks judgment for breach of a contract. Hotstuff had agreed to . . . (16 words) OR BETTER YET, THIS: 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. INSTEAD OF THIS: The applicant is John Smith (hereinafter called “the father”). The respondent is Cheryl Ellis (hereinafter called “the mother”) DO THIS: 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. 5. USE AS FEW WORDS AS POSSIBLE. INSTEAD OF THIS: He underwent three evidential breath tests by means of an evidential breath-testing device. INSTEAD OF THIS: It is also necessary to make clear that Officer Rigby accepted that there was no reason to stop the defendant in the first place. INSTEAD OF THIS: McFarland made the acquisition of three buildings. DO THIS: He took three breath tests. DO THIS: Officer Rigby admitted there was no reason to stop the defendant in the first place. DO THIS: McFarland acquired three buildings. 6. AVOID 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 was, were be, being, been. This 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. INSTEAD OF THIS: 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 . . .

DO THIS:

Boeing contends that those shares are worth $100 million. DO THIS: Mr. Bledsoe has resisted the advice of her counsel. DO THIS: Stevens argued that . . . 7. AVOID “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. DO THIS: Plaintiff's counsel submitted that the extension was not qualified by the proviso. 8. AVOID PASSIVE VOICE. In 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. INSTEAD OF THIS: No other evidence was called by the Defendants to give support to the allegations. DO THIS: Defendants called no other evidence to support the allegations. 9. AVOID USING WORDS WITH OVERLAPPING MEANING IN THE SAME SENTENCE. INSTEAD OF THIS: On appeal, appellant argues that . . . The building was round and circular in shape. DO THIS: Appellant argues that . . . The building was round. 10. IF IT GOES WITHOUT SAYING, LET IT GO UNSAID. INSTEAD OF THIS: 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. DO THIS: (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. INSTEAD OF THIS: A special meeting was called and held to reconsider the resolution. DO THIS: A 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. DO THIS: 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. If Mr. 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. As 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 [1964] 2 QB 480 at 503 in these terms: 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. DO THIS: 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 [1964] 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). The 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 the Ordinance. DO THIS Erik Causewell is charged with negligent driving causing death and with driving under the influence of alcohol. 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. Specifics like 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. DO THIS: 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. Your 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. 14. WRITE SHORT SENTENCES? 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. DO THIS: 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. 15. AVOID FAULTY PARALLELISM. When you write a series of any kind, make sure the elements in the series are parallel in form and content. INSTEAD OF THIS: 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. DO THIS: 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 acting alone. 16. AVOID 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: null and void ordered, ajudged, and decreed changed or altered rest, residue, or remainder DO THIS: void ordered (choose one) (choose one) II. INVISIBLE ELEMENTS OF STYLE 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. Rule books 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. One 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. The 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. There is 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: 1) To set off clauses or phrases tucked within a sentence. Justice O’Connor, 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 and feet. 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 rough estimates. 3) To separate independent clauses joined by and, or, but¸ for. The accident 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 self-satisfaction. Competent 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. I prefer 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.” The appraisal, 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.”

The agreement 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.

I prefer 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.”

The appraisal, 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.” The agreement satisfied all claims, which either party might have against the other under the Matrimonial Property Act. (WRONG) Which 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. The agreement satisfied all claims that either party might have against the other under the Matrimonial Property Act. (RIGHT) This may 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 examples. The appraisal, 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 others.

4.  DON’T PUT ELLIPSIS DOTS AT THE BEGINNING OF QUOTED MATERIAL.

According to the police officer’s report, the defendant’s jeep

“. . . would have been travelling at least 80kph.” (WRONG)

The ellipsis dots are unnecessary because the initial lower case w  in “would” indicates that words have been omitted at the beginning of the quoted sentence.

According to the police officer’s report, the defendant’s jeep “would have been travelling at least 80kph.” (RIGHT)

5.     AVOID MISPLACED MODIFIERS.  A modifier is misplaced if it seems to describe the wrong word.

The Constable, 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 marijuana.  (WRONG)

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)

7.  MAKE SURE THE VERB AGREES  WITH THE SUBJECT,  EVEN IF IT LINKS A PLURAL NOUN WITH A SINGULAR NOUN.

Defenses based on sovereign immunity has become a vexed question.  (WRONG)

Defenses based 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.

8.  MAKE 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)

Constable Brew remained on the property despite the defendant telling him to leave. (WRONG)

Officer Noble, 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)

Constable Brew remained on the property despite the defendant’s telling him to leave. (RIGHT)

Officer Noble, 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.

Constable Brew remained on the property even though the defendant had told him to leave.

10.  DON’T SPLIT INFINITIVES. An infinitive is the form of a verb preceded by “to” (e.g., “to file,” “to argue,” “to grant,” “to deny,” etc.).

### Was 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.

### Was 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 that way.

11.  DON’T 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.

Even 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 know it.

At times, though, following the rule is more awkward than violating it.  Robert Stone, the author of the example above could have written the following sentence instead:

One is Heidi Franklin, an art historian whom he observes to be as homely as himself and upon whom he resolves to later hit.

That’s a bit stilted and antique.  Stone, was right to follow the natural inclinations of the English language and ignore the artificial rule.

You may 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.

If you 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.

##### III. TESTING 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 occupy.

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.

__________.  Legal 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 ARK. L. REV. 197 (1967).

Strunk, William, Jr.  and E. B. White.   The Elements of Style.  4th ed.  Boston: Allyn and Bacon, 2000.

Wydick, Richard C.  Plain English for Lawyers.  4th edition.  Durham: Carolina Academic Press, 1998.

A Checklist for Judgments

James C. Raymond, Ph.D.

www.BenchandBar.info