When it comes to calls for improving legal writing, few are made with more authority than this, writes Cathy Relf.
Lord Neuberger of Abbotsbury, President of the Supreme Court, has said that judges themselves need to change the way they write – or risk losing the public’s confidence in the entire justice system.
Lord Neuberger made the claim in a recent lecture to the British and Irish Legal Information Institute (BAILII). His main focus was on writing and reporting judgments (or should that be judgements?), but many of his comments are relevant to legal writing in general.
‘It is not realistic to expect that every Judgment could be understood by everyone: human nature, the complexities of modern life, and the intricacies of the law do not permit that,’ he said. ‘However, if we are to maintain public confidence in the justice system, judges must make their Judgments as accessible as possible, particularly to members of the public and litigants-in-person.’
Even lawyers prefer simple writing
To illustrate the importance of clear writing, he gave an example from a study by the American law professor Joe Kimble. As part of the study, The Straight Skinny on Better Judicial Opinions, Professor Kimble sent two versions of the same judgment to 700 lawyers. Version A was the original judgment, picked as an average sample, not an especially bad one (though Lord Neuberger described it as having ‘Proustian length sentences without Proust’s literary merit’). Version B had been rewritten in plainer language.
Here’s the opening paragraph of version A:
‘Plaintiff Robert Wills filed a declaratory judgment against defendant State Farm Insurance Company to determine whether defendant has a duty to pay benefits under the uninsured motorist provisions found in plaintiff’s policy with defendant. Pursuant to the parties’ stipulated statement of facts, the trial court granted summary disposition in plaintiff’s favor upon finding coverage where gunshots fired from an unidentified automobile passing plaintiff’s vehicle caused plaintiff to drive off the road and suffer injuries. Defendant appeals as of right. We reverse and remand.
And here’s the opening paragraph of version B:
‘Robert Wills was injured when someone drove by him and fired shots toward his car, causing him to swerve into a tree. He filed a declaratory-judgment action to determine whether State Farm had to pay him uninsured-motorist benefits. The issue is whether there was a ‘substantial physical nexus’ between the unidentified car and Wills’s car. The trial court answered yes and granted a summary disposition for Wills. We disagree and reverse. We do not find a substantial physical nexus between the two cars, because the bullets were not projected by the unidentified car itself.’
The lawyers expressed a ‘strong preference’ for version B. Asked why they preferred it, they said because it had a summary at the beginning, left out unnecessary detail, and was more concise.
And if the lawyers found version A harder to read, despite their extensive legal training, the general public barely stand a chance.
‘First, the fact that legal professionals are trained to read Judgments is no excuse for poor Judgment-writing,’ said Lord Neuberger. ‘Secondly, reference to lawyers, judges and academics is myopic. They are only part of the audience. The public are the real audience.’
Two recommendations for clearer judgments
Lord Neuberger made two proposals for how judges could improve the accessibility of judgments.
1. Start with a judgment summary
Firstly, to include a short summary at the start. This would be particularly helpful to self-represented litigants without ready access to professionally published law reports from the Incorporated Council of Law Reporting (ICLR), he said.
‘It would not be as long as a law report headnote, or as one of the press summaries prepared by the Supreme Court. But it should be sufficient to enable a non-lawyer to know the facts, the issues, and how and why they were resolved.’
2. Use a clear structure
Secondly, he called for a clearer framework for all judgments, including a table of contents at the beginning ‘to give better guidance to the structure and contents of … longer Judgments’, and appropriate headings and signposts throughout the document.
‘Kimble’s study confirms that this is not just a good discipline but it is what the legal professional readers want, and, if it is what lawyers want, it is a fortiori what non-lawyers will want. A clear structure aids accessibility.’
(A fortiori means ‘all the more so’. Peppering your arguments with Latin isn’t the best example of aiding accessibility – perhaps Lord Neuberger should take a little of his own advice here.)
Keep it concise
Lord Neuberger also made what he described as a more controversial suggestion: ‘that judges could take a more rigorous approach to cutting the length of their Judgments’.
That didn’t mean they should go as far as Judge James Murdoch of the UX Tax Court, he said, quoting:
‘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”.’
However, there were opportunities to reduce the length of judgments by cutting unnecessary content.
‘Judges should weed out the otiose. We should, for instance, remove unnecessary displays of learning, or what the Lord Chief Justice, Lord Judge, recalls his history teacher marking on his essay, APK, anxious parade of knowledge.’
Say what needs to be said, give the readers the information they need, and no more.
You can read the speech, which also covers judgment reporting and dissemination, in full here.
We can help you write better legal documents
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