Bharat Chugh
Bharat Chugh
Litigation Columns

Diary of a ex-judge: The Art Of Judgment Writing (Part I)

Bharat Chugh

Judgment writing has been one of the most exciting parts of judgeship for me and I’ve spent considerable time reflecting upon and trying to figure out ways and means to make them better.

This column, which is the first in a series of three that I will write on the subject, captures my thoughts on the art of judgment writing, drawing on my own experiences and the experiences of my colleagues at the bench, in India and abroad.

Since the greatest advice on writing is ‘showing’ and not just ‘telling’, I’ll also illustrate each point with some of the best and the worst written judgments, so that we can examine what makes them so.

I’ll also briefly touch upon the broad do’s and don’ts of writing a judgment, international best practices, writing a great introduction and the importance of writing with the audience in mind; All of this in Part I.

Now, without further ado, let’s start at the start. The question as to how writing a judgment is different from any other form of creative writing may be a good place to begin. We all know that a judge can’t take liberties with facts, but a writer can. A novelist/creative writer creates a world, but the reader can very well choose not to be part of it by simply not picking up the book.

As opposed to this, in a judgment, a litigant has no choice but to inhabit the world that the judge has chosen to create for her. This, to my mind, highlights the sheer importance of a judgment and the responsibility that comes with it; the exercise warrants more attention than it currently does.

Given the fact that the primary audience of a judgment is the litigant, a judgment should be readable, clear, precise, unambiguous and capable of being followed. Also, transparency is key. Justice should not only be done but should be seen to be done. Parties to the litigation need to understand the result and the mental/analytical process by which the judge arrived at the final decision.

Not just this; there is one more important reason to write clearly. Consider this formulation: Ignorance of law is no excuse. Judgments constitute law. Some judgments are utterly impossible to understand. Isn’t this Kafkaesque? But it’s true; don’t believe it? Sample this:

“This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation.”

Subramaniam Swamy vs Union of India, (2016) 7 SCC 221

Can you imagine the cruel Catch-22 that it spells for the litigant? The litigant is bound by a document that is simply impossible to understand. It pains me to note that the above is an extract from a judgment dealing with the very simple issue of constitutionality of provisions in the IPC criminalizing defamation.

Now juxtapose this with how US trial court Judge Jed S Rakoff writes in Garcia v. Bloomberg, deciding on the rather vexed issue of the right of protest versus the imperatives of public order. He opens beautifully and, at the very outset, highlights the two competing ideas and values at play:

“What a huge debt this nation owes to its “troublemakers.” From Thomas Paine to Martin Luther King, Jr., they have forced us to focus on problems we would prefer to downplay or ignore. Yet it is often only with hindsight that we can distinguish those troublemakers who brought us to our senses from those who were simply...troublemakers. Prudence, and respect for the constitutional rights to free speech and free association, therefore dictate that the legal system cut all non-violent protesters a fair amount of slack. These observations are prompted by the instant lawsuit, in which a putative class of some 700 or so “Occupy Wall Street” protesters contend they were unlawfully arrested while crossing the Brooklyn Bridge on October 1, 2011.”

Garcia v. Bloomberg, 865 F. Supp. 2d 478, (S.D.N.Y. 2012). 11 Civ. 6957 (JSR)

What a powerful introduction! This tells you exactly what you want to know about the judgment. The parties involved, who did what to whom, what are the competing rights and interests that the court is called upon to balance in this case, etc. It further demonstrates that very difficult cases can also be decided simply and presented in a format and style understandable to the reader.

Writing like Judge Rakoff isn’t easy but it isn’t impossible either. It needs work, and the work, I feel, has to begin much before the actual writing of the judgment by preparing well and reading the file and mastering it.

Having made the pre-judgment preparations, let’s start with a very high level view of the “Anatomy” of a good Judgment.

A good judgment should have:

  • Index

  • Introduction

  • Facts

  • Clear articulation of the issues that arise for consideration/points of determination.

  • Evidence led to prove each factual issue and appreciation of evidence on each issue.

  • Applicable law and the application of law to the facts of the case.

  • Reasoning and findings.

  • Conclusion

Before unpacking each of these components, a few words on who should the Judge address the judgment to.

Amid the range of consumers of a judgment, it is the parties to the judgment who have the maximum amount of skin in the game. Students, academicians, lawyers and even the general public may despise or even mock a cryptic judgment. However, they do not stand to be impacted (at least immediately) by the creative liberties that a judge takes.

The parties in the matter, on the other hand, are stuck with the judgment for the time that the same is appealed against; they have their fate determined in terms they can’t fathom. We have all heard of the anecdote of a judgment being so poorly written that both the parties filed an appeal thinking it is against them. Let’s not be that judge.

A stellar instance of speaking-to-the-audience judgment writing is Justice Peter Jackson’s Order in Lancashire County Council vs M and Others. While deciding a child custody case, the judge established a dialogue directly with the mother and the children. This is what he said:

Diary of a ex-judge: The Art Of Judgment Writing (Part I)
Lancashire County Council vs. M and Others [2016] EWFC 9

He not only customizes the language of the judgment to make it understandable to the mother and her children, but also counsels the children, who are naturally under considerable stress because of all that is happening to them and their family. It seems that, through his judgment, he holds the children by the hand and explains to them what’s happening and eases trauma. The Judge is so sensitive that he, through the judgment, explains to the children that merely because parents sometimes lie, it doesn’t make them bad parents. The judge does not decide coldly but empathetically. He is mindful of the enormity of the stakes and his tone is almost like therapy.

Justice Peter Jackson, an English Appeal Court judge
Justice Peter Jackson, an English Appeal Court judge
The Telegraph

In another ‘one-of-a kind’ show of sensitivity, the same judge wrote a judgement in the form of a letter addressed to the child whose custody was in question.

And then the Judge does something truly remarkable; In the midst of a traumatizing process, Justice Jackson, speaks to the 14-year-old child directly. This is what he says:

Diary of a ex-judge: The Art Of Judgment Writing (Part I)

Moving on to the other parts of a good judgment, since “well begun is half done”, a few words now on getting the start right.

Getting the Introduction right:

  • The start of the judgment is “prime real-estate”. Start with a simple opening paragraph that serves as the very distillate of the case.

  • Since the introduction of the case is its very essence, it may be a good idea to write it at the very end and only once you’ve totally read and internalized the case and written the other parts.

  • Refrain from adding details that would have no bearing on the case, for example the incident took place at 0.00 hours on 1 January, 2019, if otherwise, timing/chronology is uncontested and not important for the outcome of the case. Same for sections and provisos.

  • Stick to the golden rule: “if you can’t say it – don’t write it”

A stellar example of a great opening is Schwartz v. Warwick-Phila Corp, where Judge Musmanno introduces a case of tortious negligence with great clarity and pithiness. This is what he says:

"It was a wedding banquet and the guests were enjoying themselves in the traditional custom of nuptial celebrations. There was dining and dancing and then dancing and dining. Fork work interspersed with footwork. The banquetters would enjoy a spell of eating and then amble out to the dance floor to dance. When the music suspended, the dancers returned to their tables and became diners again. The mythical playwright who prepares the script for the strange and sometimes quixotic episodes which eventually end up in court, mixed his stage properties and characters in this presentation because he placed in the center of the dance floor a quantity of freshly cooked asparagus and ladled over it a generous quantity of sauce. In this setting it was inevitable that something untoward would happen, and it did…..”

Schwartz v. Warwick-Phila. Corp., 424 Pa. 185 (1967)

The judge starts with an interesting narration of the incident instead of a conventional opening such as “This is a case filed under so and so sections asking for so and so reliefs by the plaintiff…”

When the judgment straight-away gets into what the case is about, the reader is hooked. Even a reader with no knowledge of law would understand what the case is about.

Contrast the above with:

"This is an application for judicial review of a District court decision delivered by XXX J on 31 November 2011 holding that the respondent’s proposed action pursuant to s.181 of the Local Government Act 2002 was ultra vires, and granting the appellant declaratory relief.”

An introduction like this says absolutely nothing about subject matter of the case. Instead, it raises a lot of questions in the mind of the reader: What the hell is Section 181 of the Local Government Act, 2002? Who did what to whom? What is ultra vires? so on and so forth. It doesn’t answer or communicate anything of consequence.

Thankfully, in the case under discussion, this is how the judge actually wrote the introduction:

“Can the Hutt City Council (the Council) lawfully suspend a sewage pipe above land owned by Mr. and Mrs. Cassells?”

Hutt City Council v. The Lower Hutt District Court, (2013) NZHC 706

I’ve dabbled with something similar, though with much less success and grace. In Anil Kumar v. Vimal Kumar and Surender Kumar, the issue that I was deciding was of a loan given by one friend to the other; and as is often the case with friendly loans, the loan was not re-paid; the friendship ended but the loan remained. I tried opening with:

“There are two sure ways to lose a friend, one is to borrow, the other is to lend"The complainant would have the court believe that this is one such case, where he was made to part with considerable amounts by his two office colleagues Mr.X and Mr.Y with whom he came to enjoy friendly relations as they are all Government Servants, employed in the Department of XXXX, Delhi”

Anil Kumar v. Vimal Kumar and Surender Kumar, Date of Judgment: 30.9.2015

The endeavor was to write an introduction that gives one a brief idea of what the case is about – the flavor of the case and the primary issue that lies at the heart of the case, without burdening the reader with too many details. The reader gets the direction in which the case is headed and would want to read further to know what happens.

Once you have the springboard of a good start, the next step is dive right into the facts. I’ll be back, talking about how to get the facts and the reasoning part right, so stay tuned for Part II.

The author is a Partner at L&L Partners and a former judge. This article is broadly based on a talk delivered at the Delhi Judicial Academy. The views of the author are personal.

Bar and Bench - Indian Legal news
www.barandbench.com