“All the world over true peace depends not upon gun-power but upon pure justice.”– Mahatma Gandhi
Chief Justice of Australia, Hon’ble Murray Gleeson AC states that there are four aspects of judicial status or performance, they are Independence, Impartiality, Fairness and Competence.
What is a judgement?
The term judgment is defined in section 2(9) of the Civil Procedure Code, 1908 as, “the statement given by the judge on the grounds of a decree or order.” It means that a judge delivers his judgment on the merits of the decree of a case. A judgment in a case should be such which conclusively describes the rights and liabilities of the parties on the basis of the decree.
Why are judgement writing skills important?
Judgement writing is a popular co-curricular activity across most law schools, and with good reason. The process of writing a judgement tests a law student or professional on many levels, starting with observational and analytical skills, to the drafting skills of the individual. It also tests the subject’s individual to apply the correct legal knowledge in a given situation in fairness and good conscience, and for the ends of justice.
Judgment writing constitutes a major portion of the judicial service exam. In States such as Madhya Pradesh, Chhattisgarh, Karnataka, Kerala there is a separate 100 marks paper for it. The syllabus of the exam is varying every year, thus, no serious aspirant should leave out this part of the syllabus, since a question on judgment writing can be unexpectedly asked in the exam.
Being a judge is a high-pressure job, as he or she is one of the foremost pillars of a democratic system. Without a fully functioning judicial set-up, the doctrine of separation of power as well as that of checks and balances would be completely negated and the Constitution which embodies the right and liberties of people would cease to be relevant.
Giving of reasons in support of an order is considered to be the third principle of natural justice. According to this, a party has a right to know not only the result of the inquiry but also the reasons in support of the decision. Well-written decisions not only satisfy the parties in question but also reinforce public confidence in the judiciary.
In this article, Team YLCC attempts to summarise certain essential points and enhance them into a pragmatic guide for better judgement writing. Read on!
- Perfecting the pre-judgement process
Needless to say, for an activity quite as complex as judgement writing, the process begins much earlier to the actual drafting. In fact, the judge is expected to adopt a systematic approach the moment case proceedings have started.
The judge’s methodology for taking notes is a crucial component of judgment writing. It is particularly important in cases which are laden with facts, in order to sort or filter voluminous or complex material. The ideal methodology is personal, even idiosyncratic. During the hearing, the relevant parts of the evidence, references and cross-references in transcript or notes, as well as any observations, can be gathered together in the judge’s own notepad. Judges then have at their disposal most of the material required to write about and make findings about particular issues. In this regard, it may also be helpful to use topic headings, preferably in a contrasting colour, in the course of noting the evidence.
Needless to say, a verdict cannot be reached until the case has been heard in its entirety. However, that does not preclude a judge from working on a draft judgment during the hearing, in which much of the background, including any relevant chronology, can be prepared. This will help a judge recall the material if, for any reason, a case is adjourned partly heard or the judgment needs to be reserved for delivery at a later time.
- Choosing an appropriate style of writing
Judgments should be easy to read. The use of plain, everyday language helps to achieve this. Unless there is a need for it, technical language and legal jargon should be avoided. This does not require judges to resort to an artificial, simplistic writing style, but rather to use normal and sensible words and phrases.
In composing judgments, careful thought should be given to both paragraph and sentence structure and composition. For example: “In this situation, I am of the opinion that the evidence that Mr Harris has given is somewhat inconclusive.” can be better substituted by “Mr Harris’ evidence is inconclusive.”
It is generally better for judges to write in their own style rather than mimicking another’s, which does not come naturally and is bound not to read naturally either. When choosing a writing style, the judge should always be conscious of the effect of the judgment and particular findings on those who are concerned with it. Care should be taken to avoid injection of personal views, by adhering to the purpose of the judgment. Any sort of reflection of bias in the judgement should be strictly avoided. This consideration may temper an inclination to humour, irony, trenchant criticism, anger or morality, although there are occasions when humour or the expression of moral value may be appropriate.
- Screening the history and facts of the case
The introductory part of any judgment always deals with the history and factual aspects of the case. The facts may be discussed in at least three parts of the judgment- firstly, in the introduction, to identify issues or to add context or colour; secondly, as part of a brief general narrative, early in the judgment, to establish time, place or order of events; and thirdly in deciding the issues of fact or law, including credibility.
Careful discretion must be exercised when dealing with facts, to include no more than is absolutely necessary. An elaborate narrative of facts, some relevant and some not, is likely to distract and confuse the reader. Although it is tempting for a judge to demonstrate mastery of voluminous material by including the details, a sound grasp is best demonstrated by filtering the facts to those necessary to resolve the dispute and explain the reasoning.
Disciplined enumeration of facts, arguments and background of the case in the judgement can help readers to comprehend the reasons of the judgement better.
- Apply the law
This is a major sphere of the judgement writing process where the judge or individual is required to call upon his legal knowledge and apply the appropriate laws to the facts and situation of the case. It is essential for the judge to identify and set out the legal principles applied in arriving at the decision. Often, a legal principle can be stated by paraphrasing, rather than by direct quotation. This approach makes judgments easier to read as a good number of cases usually involve multiple laws. There is generally no need for a lengthy dissertation in a first instance judgment, although there will be occasions in superior trial courts when judgments should contain more expansive statements of law.
Prior to applying the law or the relative jurisprudence, the judge may also attempt to elaborate upon the legal questions that require answering in that particular case. If there is precedent, the judge may proceed to cite from that previous judgement. When citing from a decided case, the passage of the judgment should be chosen carefully and frugally. Only so much of it as expresses the proposition in question should be quoted. Ideally, that may amount to no more than one or two sentences, rather than a paragraph, or several paragraphs.
- Stating the conclusion
As the first part of the judgment usually introduces the subject matter of the case and other relevant issues and details, the conclusion should resolve each of the issues identified at the start. The ending should contain no new information, whether factual or legal, which has not previously been discussed. Some judges choose to announce the result at the start of the judgment. Others, perhaps the majority, announce their decision towards the end of the judgement. There is no “correct” view.
Traditionally, the decision is given at the end, thereby providing a logical flow to the judgment. Those who favour stating the decision at the beginning, justify doing so to ease the tension for those with an interest in the outcome of the case. They also acknowledge that most readers turn to the last page first in any event. Whether to maintain the conventional approach or to declare the outcome at the start is a matter of personal preference. Ultimately the choice may be influenced by the type of case. For example, when sentencing a prisoner or deciding a dispute concerning the residence of children, revealing the decision immediately may be more humane, especially if the reasons for that pronouncement are lengthy and may take some time.
How the decision is reached must be evident. This is accomplished by adopting a transparent reasoning process, dealing with both the relevant facts and law. Whatever has influenced the decision should be stated in sufficient detail to thoroughly explain it. Some writers have described the task of the judge as being one of persuasion. Arguably, the real obligation is to explain, publicly, how a decision has been reached, rather than to persuade the reader. After completing the decision, the proposed orders and relief granted should be stated. In criminal cases, usually the quantum of punishment is declared.
- Editing the judgement
It is commonly said that there is no such thing as good writing, there is only good rewriting. Preparing a draft judgment is hard work. But the hardest work begins when the draft judgment is finished. Good editing ensures that a judgment is lucid, thorough, coherent, concise and has transparent reasoning. It identifies flaws, such as the use of discriminatory language. Editing in judgement writing is likely to involve a number of tasks including checking names, dates, figures and other data for accuracy, eliminating repetition, excluding irrelevant findings of fact, and checking to make sure that all legal issues have been covered.
For most judges, preparing judgments is the most demanding, challenging and even stressful part of judicial life. Paradoxically, it can also be the most creative and rewarding. Judges usually take hours preparing for cases, the hearings of which are scheduled on the following day or week. In the aforementioned points, we have merely laid down steps or practices which can be followed to ensure a reasonable approach to the activity. It is upto the judgement writer to develop his own unique methodology and process that suits his temperament, and accordingly prioritise the elements of clarity, style and sound structure.
YLCC would like to thank Sourajit Bhattacharyya for his valuable inputs in this article.
