Diary of an ex-judge: The Art Of Judgment Writing (Part II)
In Part II, we will be diving straight into what can be called the very heart of a judgment: the facts and the reasoning part.
To briefly recapitulate, in the last part, we looked at a few examples of writing an engaging introduction. The endeavor was to write an introduction that gives the reader a brief idea of what the case is about.
Once, you have the springboard of a good start, the next step is dive deep right into the facts.
Remember “Show, don’t tell”
Every case is about a human life. Facts tell you – Who is this case about? What really happened? And to whom? What is the conflict about? All these things are important before one gets to the resolution of the conflict. The importance of stating the facts correctly and concisely cannot be emphasized enough.
A great way of stating facts is to stick to the most relevant facts, glean the same from the records; separate the chaff from the grain. While stating facts, one must state the undisputed facts first, and then tread the more troubled waters of making a finding on the disputed ones.
While clarity is paramount, in fact-intensive matters, the narration of facts must keep the reader of the judgment hooked and, instead of meticulously listing the events and happenings that make up the entirety of facts, the judgment may be shown to the readers by evoking visual imagery. And one needs to talk about only material facts. The over-arching idea is to keep the narration facts complete, concise, and interesting.
Take this for instance:
In barely three paragraphs, Lord Denning, who is a true master of the art, tells the readers about the parties, the incident, and the issue that arises for determination. All this, while painting a visual image of the scene in the reader’s mind. Lord Denning not only makes reading the facts easy for the lay person, but once read, the facts remain etched in the memory of the reader for quite some time.
For a slightly more modern example, sample what Judge Scalia writes in Scott v. Harris:
The narration is of a hot pursuit that unfortunately ended in the plaintiff sustaining grievous injuries after his vehicle as pushed off the road by the police car ramming into his vehicle. Scalia was ruling in a case brought against the police, alleging use of excessive force against the victim in an attempt to pull him over. Justice Scalia almost effortlessly transports us to the scene of the incident; he’s graphic and concise - all at once.
While any attempt to emulate the flair of these two masters of the skill would be a little too much to expect, at least when one is just starting off as a judge, certain do’s and don’ts can always come handy for modest beginners like ourselves:
Facts are key. A trial court is essentially a court of fact; therefore, an understanding of facts is of paramount importance. At the High Court, all that a lawyer needs to do in order to get the leave to appeal is to demonstrate factual aspects not dealt with in order get the leave granted in his/her favour.
A good practice is to read the entire file and write the facts in one’s own words instead of reproducing the pleadings. This helps internalization and mastery over the facts. This also ensures that the judgment doesn’t look disjointed, as if written by different people, in parts.
Facts should be stated as simply as possible. The shortest distance between two points is a straight line, so there is no point beating about the bush.
Less is more: Remember this short story often attributed to Ernest Hemingway, where he (or whoever the author really is) captures a complex story in just six words:
"For sale: baby shoes, never worn.”
One of the ways in which the story has been interpreted is as follows: The expecting mother (or parents) had brought/hand-woven these shoes with great care, love and affection for their child. For 9 months, the expecting mother earnestly waits to put those shoes on her baby’s tiny feet. But the baby is either still born or is born with a certain deformity and the shoes can’t be used and are now being put up for sale.
Much can indeed be said in less but an important caveat: this principle is to be used with great caution and circumspection as it is very easy for a pithier fact narration to be misconstrued or it to degenerate into a riddle.
You may consider the following rules of stating facts, which the author found immensely helpful during his stint:
Rule of CRAM (Chronological, Relevant, Admissible and Material):
State only relevant, admissible and material facts, and do so chronologically.
The rule of WDWTW (Who Did What to Whom):
Not a particularly elegant formulation but one of great practical utility. The factual narration should always answer the above.
A good idea is to set the undisputed facts out first. It is not important to spell out why something is undisputed or where it was admitted, unless of course, the quality and nature of the admission itself is suspect and under challenge or you are construing something as an admission where it patently may not be.
It is a great idea to use the parties’ names, instead of the drab and boring: ‘plaintiff’, ‘respondent’ or ‘appellant’. This makes the judgment simpler to understand and also makes the characters of the judgment a lot more relatable. Further, it retains the humanity that the parties deserve in a judgment.
A good exercise while writing facts is imagining yourself telling the facts to an intelligent, non-legal friend or your partner. As said earlier, don’t write what you won’t say out aloud, in ordinary conversation.
As Charles Kettering said, “A problem well stated is a problem half solved”
Issues, simply put, arise when one party asserts and the other denies. Some tips for framing of issues can be summarized as follows:
A judgment is written to resolve a concrete issue, factual or legal, and not as a hypothetical academic exercise.
Issues act as guiding lamp posts. Once, you have stated the issue, it would be easy to decide the case in terms of what happened and where does the liability lie.
Rules relating to burden of proof are your friends and should be carefully used to decide who is under the obligation to prove contentious facts.
In civil matters, the judgment should not travel beyond the pleadings or the issues. Recording findings on issues or matters which are unnecessary for disposal of the matter should be resisted. An issue is what the parties are at variance on.
Avoid framing generic issues such as “Whether P is entitled to grant of perpetual injunction?”
For instance, in an application under Order XII Rule 6 of the Code of Civil Procedure, 1908 (“CPC”) which deals with Judgement on Admissions, the issue can be framed as: “Whether the defendant has admitted the claim of the plaintiff and if yes, whether the admission is complete, clear, unambiguous, unconditional and, therefore, sufficient to pass a decree under Order XII Rule 6 of CPC?”.
With the treatment of issues covered, we are half-way there already. We could safely say that with the introduction, facts and issues sorted, we have laid the roadmap for what would make Lord Denning very proud.
However, we are yet to learn a thing or two about the most important part of a judgment: the findings; the reasons that bridge the gap between the judge’s mind and the readers’.
Findings/Reasoning/Analysis: The Heart of the Judgment
Stating the law and stating the outcome of its application to the facts of the case is the soul of a judgment. Reasons have a humanizing effect for the losing party; they “demonstrate respect” for the losing party, which she commands as a matter of justice. The losing party is told exactly why she lost; this allows the losing party to explore avenues for challenge and/or provide closure.
Even otherwise, the statement of law and reasons are the grounds for assessing the judgement on the touchstone of legal accuracy and soundness at the appellate stage and by the various users of the judgment.
The following, again from the Master himself, is a good illustration:
Lord Denning, in Thornton v. Shoe Lane Parking writes, in a case dealing with a subject as dry as standard form contracts/contracts of adhesion:
Lord Denning, in a matter of two paragraphs, beautifully encapsulates the law and justifies its application. In Lazarus Estates Ltd. v. Beasley, he demonstrates the art of impeccably writing the law without being pedantic and technical. He states the outcome of fraud succinctly as follows:
“No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything”.
Similar is Diane Wood J. in Tarpley v. Allen County, Indiana, where the judge writes on the complex issue of right to practice religion while in prison
Justice Chinappa Reddy in Mohd. Yakub v. State (1980) : “The question is what is the difference between preparation and perpetration? An attempt to define 'attempt' has to be a frustrating exercise. Nonetheless a search to discover the characteristics of an attempt, if not an apt definition of attempt, has to be made...”
Oliver Wendel Holmes Jr. In Shneck v. United States: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theatre and causing a panic."
These examples show that competing narratives in a case, issues that arise for consideration, and core findings can be put forth with great pithiness and class. A judgment is not meant to be a thesis on the applicable law, its legislative history, objects and reasons, and the international best practices on the issue. It lays down and applies a principle needed for the decision of the case before it.
Impulses to go overboard must be overcome in the interest of the parties who may not fully understand or even need the entire body of law on the issue to be stated for the case at hand. Even the statement of the applicable law can be made interesting by resorting to imagery and analogies.
For instance, in Mayo vs Lane, Justice Posner states the law by way of simple analogy as follows:
This makes the issue so much more accessible. Closer to home, this part would be incomplete without the mention of Justice Krishna Iyer’s judgment in Mohinder Singh Gill & Anr v. The Chief Election Commissioner. In this case, the judge was deciding the rather vexed question as to whether when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned in the order or can those be supplemented by fresh reasons in the shape of affidavit or otherwise?
The judge answered the issue in the negative in the following words:
The last line has immortalized itself in administrative law jurisprudence.
Another facet of judgment writing that is absolutely crucial is sensitivity. Since it’s better to show than to tell, here’s an excerpt from one of Justice Krishna Iyer’s judgments. He was remarkably erudite and compassionate but, unfortunately, not always the easiest to follow.
In fact, there are parts of his judgments that were totally inaccessible to a majority of his readers but that having been said his judgments did display great compassion and empathy. In a case on the need for independent corroboration for a rape victim’s testimony, he wrote:
Here’s Justice Krishna Iyer writing on the need for judicial restraint while passing observations in relation to Trial Court judges - juxtaposed with Justice KT Thomas writing on the same subject:
No prizes for guessing which one of the two above gets the point across better.
To summarize, a few rules that may be instructive in writing the reasoning part of the judgment:
Judgments are, more than anyone else, written for the losing party. Therefore, it is very important to adequately highlight and deal with the Losing Party’s Position (LOPP) and further demonstrate, with clarity, the Flaws in the Losing Party’s Position (FLOPP).
Reasoning should be intelligent and intelligible.
Use of strange or difficult words and complex sentences should be avoided. The purpose of a judgment is not to showcase the judge’s knowledge, but to decide disputes in an efficient and transparent manner; state the law in clear terms.
If the law on the subject is clear and settled or the issue is simple, which does not require a lot of explanation, do not quote more than one judgment on the subject.
Steer clear of moral judgments and majoritarian bias. Personal opinions of the judge on the subject matter should not translate in the judgment. Judgeship is not an avenue to translate your world view/experiences into binding judgments and diktats. The only permissible philosophy/ideology of a judge is the philosophy of the Constitution.
While making remarks on the basis of demeanor, always be cautious. Demeanor is a double-edged sword as is clear from the fact that even the most honest chap may be extremely nervous on the witness stand, and his sweaty palms and quivering voice may be used to raise the inference of him being unworthy of credence.
Above all, appreciation of evidence and reasoning should be objective, while remaining sensitive and responsive and mindful of the social context.
In Part III, we talk about certain words and phrases which are best avoided as they make judgments clumsy and inaccessible, some commonly committed errors, and, finally, we wind up with a few thoughts on writing a killer conclusion.
The author is a Partner at L&L Partners and a former judge. The views of the author are personal.