Monday, July 23, 2007

THE ANXIETY – TO DO RIGHT – REMAINS

(Summary: This paper discusses how a judge may communicate and a judgement may be written.
A pdf format of the article can be downloaded by clicking here.
It was read by Justice Yatindra Singh, Judge, Allahabad High Court at National Judicial Academy, Bhopal in the National Judicial Seminar of the judges of the higher judicial service on Judicial Method on 21.7.2007.)

Themis - from Wikipedia
Themis is goddess of justice; she is generally—though not always―shown blindfolded; she has a pair of scales in one hand and a double edged sword in the other. The blindfold indicates that justice is impartial and is administered without fear or favour. The pair of scales explains that justice is done after weighing the strength of the competing claims. The sword symbolises the power to enforce it.

Our task is to find out the side, where justice lies. In this process, we '
must not spin a coin or consult an astrologer' {Lord Diplock in R.V. Deputy Industrial Injuries Commissioner ex parte Moore (1965) 1QB 450, 488}.
We must do it openly, under public scrutiny and provide reasons. Ours is a difficult job: we take decisions - others procrastinate.

How should our performance be judged? What qualities should we have?



Jeremy Bentham said,
'That he [Judge] be a good one and that he be thought to be so' (Draft for the Organisation of judicial Establishments in the Works of Jeremy Bentham ed. Bowring, 1843 Vol. 4 p 359).
We are good if we make just decisions. Our decisions will be just, if we have good reasons for them. But this is not sufficient: we should be thought to be good too. This requires good court management (this is to be distinguished from judicial administration of a judgeship) and ability to communicate reasons for the decisions.

COURT MANAGEMENT
(i) Be fair
Mistakes may be excused but not unfairness can not be excused. After all, as Lord Diplock said,
'the fundamental human right is not to a legal system that is infallible but to one that is fair' (Mahara vs. Attorney General of Trinidad and Tobago 1978(2), All England Law Reports 670).

(ii) Don't Delay Your Judgement
Delay in resolving a dispute is bad but delay in delivering a judgement is worse. It creates doubts in the minds of the litigants. While reserving a complicated case, it is good idea to dictate in open court:
The case of the parties;
The points of determination;
Admitted facts; and
Submissions of the parties.
The draft judgement preferably be completed overnight or over the weekend.

(iii) Stick to the Court Timings
Court timings are important. It is no comfort to say that you also rise late if your sitting is delayed. Court timings are important and are to be adhered to: advocates and litigants adjust their schedule according to it.

(iv) Avoid Social Gathering, Parties
If you accept the job of a judge, then accept secluded lifestyle also―aloofness is our job requirement. As far back as 1981, HM Seervai pointed out,
'The extreme impropriety of judges in accepting lunches and dinners from members of the Bar practising before them and even from private citizens.
... Judges are not detached but the public should feel that they are detached' (The Seevrai Legacy page 10 & 34).
The only exception may be condolence or a marriage or an activity connected with law.

(v) Be Consistent with your Orders and Courtroom Procedure
This does not mean that even a wrong order/ practice should be followed but it means that your orders and procedure should not change from advocate to advocate, or litigant to litigant, or day to day basis.

(vi) Control the Court Proceedings
It is good to be patient but often arguments have to be curtailed. You have,
'to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he [Judge] follows the points that the advocates are making and assess their worth; and at the end to make up mind where the truth lies.' (Jones Vs. National Coal Board 1957 (2) Law Report 55 at 64)

You can not do it unless you have sound knowledge of law. Seervai points out,
'unless the judge on the bench is equal or superior to the top counsel appearing before him, it is impossible to control court arguments'.(The Seervai Legacy page 20)

The advocates should also know that you have understood their submissions. This may be achieved:
  • By listening to the advocates attentively Don't fiddle, read, shuffle the papers/ books when advocates are making submissions. If you have to do it, request the advocate to wait.
  • Ask relevant questions. Lord Atkin was '
    patient, he asked few questions but those ... were the most incisive' (Lork Atkin by Geoffrey Lewis Page 17).
    This shows that you understand the case.
  • By summarising the points submitted by the advocates. You can always say, 'You mean to say ....' or 'Your submission is ....' or ' Your point is...' It does not mean that you have accepted their arguments but reassures them that their arguments have been understood.

JUDGEMENT WRITING
Judgement should be concise, lucid and clear. To me, the worst judgement is the one in which neither the result is just nor can it be understood by anyone. A better one, is the one, which atleast can be understood by others. Of course the best judgement is, when the result is just and everyone can easily understand it.

Judgement: Provisions of Law
CPC as well as CrPC provide as to what should a judgement contain. Order 20 and Order 41 Rule 31 of the CPC provide for the judgement in the civil cases. Chapter 27 of the CrPC deals with the judgements in the criminal cases. Apart from the other things, these provisions provide that the judgement should indicate:
  • The case of the parties;
  • The points for determination;
  • The decision on the points for determination; and
  • The reasons for the decision.
All are important but the most important one is—the last one—the reasons for the decision.

Who Reads the Judgement
One should not avoid to decide a case that it might be upset by the higher court, or not liked by anyone, or may be overruled. It is an old saying: 'Let justice be done, though the heavens should fall' (see Endnote-1). Decisions should be taken, as you understand the law; they should satisfy your conscience: you should never decide the case, as others understand it.

However, exactly opposite is applicable as far as judgement writing or communication is concerned. It is always for the others; it is for their benefit; and you should always have them in mind. This brings up the question, who reads the judgement? For whose benefit, the judgements are written? Today, as you will see, it is read by everyone.

(i) Persons Connected with Law
The judgements are always read by the Judges, advocates, law commentators, law professors, and law students.

Mostly, advocates read our judgement and form opinion about us. And their opinion is important. It is said that the bar is the best Judge of all judges.

(ii) The Litigants
It is often said that the litigants never read the judgement. The winner has no interest for he never doubted his case. The loser in any case, is going to condemn it. However, they are entitled to know the reasons so as to confirm the correctness of their case or to find fault with the same.

(iii) The Media
Many cases raise public interest issues; decisions are publicly discussed. This brings up the media, and not so conversant with law, into picture.

Preparation and Writing
(i) Plan, Be Clear— Don't go in Circle
We often write long judgements and go in circles. It happens, when the concept or the reason for the decision is not clear. This is true about articles and reports too. You should, first clear your doubts; be sure what you wish to write— then write. Note down the points for determination; your decision on them; the sequence of writing reasons on the different points - then write. Sometimes the heading/ sub-heading or the sequence changes, but this is immaterial.

(ii) Write, revise, and revise
One must plan, write, revise and revise again—preferably over night. If the text is revised at the same time, the mind tends to overlook the mistakes. Remember—the text improves with the number of revisions.

What You Should Not Do
(i) Avoid Quoting, Pleading and Evidence
A judgement—consisting of excessive quotations from the pleadings and evidence and with little reasoning—is bad one. The pleadings and evidence (oral or documentary) should be summarised in your own words. Apart from other benefits, it enables you to understand the case better.

A judgement is also bad if it merely summarises evidence of the parties and then relies upon some evidence without reasons. You should point out the reasons for relying on particular evidence. Don't forget—reason is the key to a good judgement and is its soul.

(ii) Avoid Long Quotation from the Citations
What is true for the pleadings and evidence, is also true for the citations. Long and unnecessary quotations from the citations show lack of understanding.

(iii) Simple points do not require long and complicated discussion
It is often said, 'The legal mind consists of illustrating the obvious, explaining the self evident, and expatiating on the self evident'. Don't do it.

Style
(i) Write the way you Talk
This advice is often misunderstood. It does not mean that you should write as you talk because we often,
  • Don't speak in complete sentences;
  • Use words like 'oh', 'I mean';
  • Express through our gestures, and by tone of our voice.

It means that:
  • Use complete, grammatically correct sentences;
  • Don't use unnecessary words like 'oh', 'I mean'
  • Write in spoken language;
  • Write as if you are talking to your reader.
In order to inculcate it, read good books; listen to the moving speeches. Appendix-1 is the list of the books that you may profitably read.

(ii) Quotations
Quotations can be within single or double quote. However if the quotation begins with single quote, then a quotation within that quotation will be under double quote. Reverse it, if the quotation begins with double quote. The text within quotations are often shown by increasing the indent or by keeping the text in italics.

(iii) Lists – Bullets and Numbers
They are used:
  • To state a series of facts or conclusion;
  • To signal the essentials;
  • To encourage the writers to be brief;
  • To avoid boredom of reading continued text.

It is common to see a paragraph in the appellate court judgment stating:
'The trial court framed necessary issues and held that “A” was the owner of the property in dispute and after his death the plaintiff became the owner of the same. The Trial court further held that the defendant has nothing to do with the property in dispute and is a trespasser. The Trial court has also recorded finding that the suit is neither barred by limitation nor resjudicata . On the basis of these findings, the suit was decreed.'

It can always be written as follows:
'After framing necessary issues, the trial court decreed the suit on the following findings:
  1. A was the owner of the property in dispute;
  2. After his death, the plaintiff became owner;
  3. The defendant has nothing to do with the property in dispute and is merely a trespasser.
  4. The suit is neither barred by limitation nor by resjudicata.'

(iv) Heading and Sub-heading
Headings and sub-headings are useful. They not only break the monotonous continuous text, but also provide sufficient indications to the readers to reach the part of the desired discussion.

Another advantage of using heading and sub-heading is that it makes the writing logical and avoids repetition. You should write everything related to a point under one heading or sub-heading.

A heading or sub heading starts a new topic. In order to show it, put more space above the 'heading and sub heading' than below it. A sub-heading should be subordinate to the heading and should also so appear. The principles regarding this priority are as follows:
  • Upper case has priority over lower case;
  • Bold has priority over regular as well as italics;
  • A large type size has priority over a small type size;
  • Centred heading has priority over left aligned;
  • An underlined heading has priority over one that is not underlined;
  • San serif has priority over serif.

(v) Number the paragraphs in the judgement
Numbering paragraphs of the judgement makes it easier to refer. Many courts have adopted practice of issuing judgements only after they are numbered. {Practice Direction (Judgement: Form and neutral citation) handed by Lord Woolf CJ on 11.1.2001. House of Lords also opted the practice of issuing judgements with numbered paragraphs in 2001}.

Language and Punctuation
(i) Think About Others
Whenever you write, think about the person for whom you are writing. Today our judgements are read not only by experts but also by persons, not so conversant with law (see discussion under the sub-title 'who reads the judgement). We have to make their task, easy—write in a language that they can understand.

(ii) Don't use Latin, Foreign or Difficult Words - Write to express and not to Impress
It is often that advocates and judges use, 'A peculiar cant and jargon of their own that no mortal can understand' 1. We don't have to use this language.

Use English or language of your court: it is easy to understand. There is no point using Latin or foreign words. Consider which one is better:
NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA
No man can be a judge in his own cause.
The first one is in Latin; the second one is its English version.

Simple writing is the hallmark of a superior mind; it is not easy. Always try to use plain and familiar words to catch the readers attention. You may understand the difficult words, but they may be difficult for the readers. Your reader may neither have patience nor time to consult the dictionary: your readers might consider you to be an able person but in case they have not understood the text then the entire exercise is pointless.

Two years ago I had come to NJA to give a talk on, how information technology can improve the judicial administration. I had titled my talk as 'Information Technology: Panacea for Soured Justice'. On my wife's suggestion, it was changed to 'Information Technology: the Road to Speedier Justice'. I am glad that I have accepted her advice. Sometime ago, Dataquest, an IT magazine, published this article. They titled it 'Justice without Speed Breakers'―it is even better.

The first three books of Appendix-1 provide plainer and better words for difficult words and expressions.

(iii) Avoid unparliamentary language
The language should always be plain and courteous: use parliamentary language. Erskine May (Parliamentary Practice 20th ed. Page 432) says:
'Good temper and moderation are the characteristics of parliamentary language. Parliamentary language is never more desirable than when a member is canvassing the opinion and conduct of his opponent in debate.'
So is true, when you are disagreeing with any judgement or submission of an advocate.

(iv) Avoid negatives
Positive statement is better than the negative one. Consider the following two sentences that are saying the same thing.
'Not more than one peon may be posted in the court'.
'Only one peon can be posted in the court.'
The second one, the positive one is better.

Consider the following confusing sentence,
'A member who has no fewer than 25 years of credited service but has not yet attained the age of 60 years and is not eligible for retirement may not voluntarily retire early without first getting approval from with the board after filing a written application.'

In case the negatives are removed and it is split, the same can be written as follows:
'The members, ineligible for retirement, may voluntarily retire if they are,
  • under the age of 60 years, and
  • have at least 25 years of credited service.
This can only be done after getting approval from the board by filing a written application.'
I need not say, which one is better.

(v) Use Active Voice
Passive voice is often not clear. It is because it leaves out the information. Active voice makes the text clearer. Consider, the following sentence,
'The policy has been approved.'
It does not explain as to who has approved the policy. Readers may or may not be able to guess the person approving the policy.

Passive voice is, often used,
  • As it is natural to the writer;
  • To leave out the doer (actor) intentionally or unintentionally; or
  • To avoid using personal pronouns like 'I', 'we', or 'you'.

The aforementioned reasons are not sufficient to use passive voice; it may be used if there are reasons to use it. For example:
  • When the actor is not known or his name is not to be disclosed (A was killed); or
  • When the actor is not important and emphasis is on the one acted upon (what happened to the drowning boy? He was rescued); or
  • When things are put mildly to avoid or defuse hostility.

(vi) Brackets
Supplementary, or additional, or an explanation may be kept inside round brackets.

Brace brackets are used in a text if some matter within them is to be kept inside round brackets otherwise brace bracket { } as well as angled brackets < > are generally used in mathematics, specialised texts, tabulation and technical works.

Square brackets, are used in a quotation. Words kept inside the square brackets, are not part of the original quotation but are used as an editorial content to clarify the meaning.

(vii) Break the Page with Paragraphs
Split the text in a page with paragraphs and a paragraph with small sentences, but how long should a paragraph be?

The broad rule is that a paragraph should not have two thoughts—one is sufficient. 'COLLINS WORD POWER: Punctuation (page 16) offers some practical tips: '
Think of the end of a paragraph as a sort of breathing space for both writer and listener. The writer needs to gather his thoughts afresh, and the reader needs a momentary rest from concentration'.

(viii) Use Short Sentences
Readers do not concentrate as much as the writer. If you use a long sentence - you might lose your readers before it ends. They will be confused and get irritated. It is useless to write a sentence, if the readers have to read it again—use only as many words as are necessary. For example, consider the following sentence,
'The letter that was received from the High Court was received on 21st July.'
This could be written as, '
The letter from the High Court was received on 21st July.'
Or it could be simply written as, '
The letter from the High Court arrived on 21st July.'

Here is another example from COLLINS WORD POWER: Punctuation (page 15). Consider the following sentence.
'A person shall be treated as suffering from physical disablement such that he is either unable to walk or virtually unable to do so if he is not unable or virtually unable to walk with a prosthesis or an artificial aid which he habitually wears or uses or if he would not be unable or virtually unable to walk if he habitually wore or used a prosthesis or an artificial aid which is suitable in his case.'
Can you understand it? However it is saying something very simple,
'Persons are regarded as physically disabled if they always `need an artificial aid to walk'.

(ix) Comma, Semi-colon, Dash, and Colon
In case a long sentence can not be avoided then it should be broken with suitable punctuation, such as a comma, or a semi-colon, or a dash, or a colon. They make the text clearer:
  • A comma acts a separator between parts of a sentence;
  • Semi colon is used for two closely related sentences within a sentence;
  • Dash is used to indicate start of an explanation or addition—they are added for emphasis too;
  • Colon is used before an explanation, description, or conclusion and is generally used to introduce a vertical list.

Format of the Judgement
(i) Introduction/ Opening words
It has been traditional to start the judgement stating that:' it is plaintiff's appeal...; or It is a suit for'....However this has changed.

Now the introduction or the opening words generally contain the key issues that are being decided. It is a kind of headline to the judgement. Its purpose is to invoke interest in the readers by capturing their attention at the outset. This is also recommended practice in the US. (Judicial Opinion writing Handbook by JS George 2nd ed. Hein & Co. Buff lo 1986).

(ii) The Facts
It should contain the case of the parties, admitted or undisputed facts; and the evidence filed by them.

(iii) Points for Determination/ Issues
Formulate the points for determination and state them under this heading.

(iv) Reasons for the Decision on a Point for Determination
Reasons for the decision on different points for determinations may be indicated under the heading meant for it. In dealing with any point for determination, conclusion on that point may be included in the heading itself instead of only writing point/ issue number.

(v) Conclusions
Indicate your decisions on different points in the case.

(vi) Order
Indicate operative portion of the order on the basis of the conclusions. The matter under this heading and the previous heading 'conclusion' may be combined together.

(vii) Footnotes, endnotes, and Appendices
This may include,
  • Case law; or
  • Details of the books referred; or
  • Provisions of law; or
  • Related points not relevant for discussion at present but those that may be involved in future; or
  • Any interesting point connected with the case but not relevant for the decision or relevant for further reference.

The main text should be capable of being read and understood without reference to the footnotes, endnotes or appendices. However, they should not be excessive as it distracts the readers.

Use of footnotes is common in US Judgements, and often had important bearing in the later cases.

CONCLUSION
Nature does not endow everyone with ability to write clearly: only some are lucky. Nevertheless, if the anxiety for clarity is there; if the anxiety—to do right— remains (see Endnote-2) then there is no reason why it can not be acquired.

We may be wrong in deciding a case; our decisions can always be corrected in appeal. And no one can bind the posterity. But let no one fault our judgement merely for not understanding it.


Endnote-1: The original Latin maxim for the saying 'Let justice be done though the heavens should fall' is, 'Fiat Justitia, ruat Coelum'. It does not have respectable origin (For details 'The Family Story by Lord Denning page 172). In the same book on the next page, Lord Denning says,
'For myself I prefer to take the first part – 'Fiat justitia' – and discard the 'ruat coelum'. If justice is done, the heavens should not fall. They should rejoice.'


Endnote -2: Lord Denning's writings are simple and example to emulate; it can be profitably used in all languages. The title of this article has been taken from the following last paragraph of the first chapter 'Command of language' of the book 'The Discipline of Law, 'One thing you will not be able to avoid ─ the nervousness before the case starts. Every advocate knows it. In a way it helps, so long as it is not too much. That is where I used sometimes to fail. My clerk ─ as good clerk should ─ told me of it. I was anxious to win ─ and so tense ─ that my voice became too high pitched. I never quite got over it, even as King's Counsel. No longer now that I am a Judge. The tension is gone. The anxiety ─ to do right ─ remains. (Italics mine)


Appendix-1
Books to Read
  1. COLLINS WORDPOWER : Punctuation by Graham King.
  2. Plain English Guide by Martin Cutts , Oxford University Press.
  3. The plain English Approach to Business Writing by Edward P. Bailey, Jr.
  4. Eats, Shoot & leaves by Lynne Truess
  5. A Dictionary of Modern Legal Usage by Bryan A Garner, Oxford University Press.
  6. The Judgements and How to Write Them by Justice SD Singh
  7. Judgement and books by Justice Oliver Wendell Homes and Lord Denning.
The first three books also list official, legal, wordy, Latin, French words and phrases with plainer alternatives.
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