My dentist, Dr. K., is a funny guy. Not tactful, but funny. He could do stand-up comedy, something that I, too, have a secret desire to do.
Dental schools must have a clinical course in chair-side manner. It seems to be accepted practice to wait until the patient’s mouth is firmly cranked open, then hit them with a question. On a recent visit to my dentist, Dr. K. drilled down on this technique. He began by musing about the similarities between our professions: that no one wanted to appear before either of us. (Just nod if you agree.) Ha ha ha, gag.
Next, he probed deeper. How do you write a judgment? Do you use a template or just sit in front of a blank screen until it comes to you? Shall I put a crown on that tooth?
Aha! Now he had me. I have loved writing ever since grade two, when I learned that words could be strung together to convey thoughts. In grade four, I learned that there was a recognized structure to writing, called grammar. The elegance of it all was thrilling to me. Unfortunately, it was the last grammar I ever learned.
My innate love of writing revived when I joined the Superior Court. Virtually every decision made by the courts finds its way into written form. Judgment writing is a specialized form of writing. Judges who excel at writing are much admired by their peers. As criminal lawyers particularly know, inadequate reasons for judgment can form grounds for appeal.
Written reasons for judgment are the foundation of the common law. A court is compelled to explain itself in the social context of the day. Thus, the law evolves as society changes; for example, we no longer hang thieves for sheep stealing.
Evidence is the foundation of any judgment. Change the evidence and you alter the rationale for the decision. Reasons for judgment must set out the evidence that the court accepts (including an analysis of any conflicting evidence), and the law that applies to the evidence that is accepted. Reasons must also deal with interpretations of the law and statutes, including any conflicting legal decisions, recognizing the purpose for which the law exists.
Without reasons, judgments are simply arbitrary. “Because I said so” might suffice for parenting, but it is not persuasive where the law is concerned.
The discipline of writing reasons for judgment forces a judge to articulate his or her thought processes. Sometimes we are surprised by what we think. The Late John Morden, J.A., used to say that “Sometimes, it just won’t write.” He was not the only judge to change his mind, reverse course and start again.
One of the oldest educational programs for federally appointed judges in Canada is Judgment Writing School. When I attended, judges were required to submit a sample judgment to be critiqued, attend lectures on the structure and function of judgments, and participate in tutorials directed by English professors. We learned about how rhetoric and structure work together to foster persuasion and clarity. We explored point-first writing. We learned that style is individual to each judge. We discussed the grammatical distinctions between a colon and a semi-colon.
However, the use of humour in judicial writing was discouraged. (“You are not funny. No one will think you are funny. Do not try to be funny.”) My ambition to do stand-up died that day.
Perhaps the most important concept I learned at Judgment Writing School was the maxim, “Write for your intelligent neighbour.” Judges were encouraged to move away from arcane language to simpler language that could be readily understood by the layperson, making the law more accessible to citizens who want and deserve to understand the work of the courts. We were also encouraged to avoid run-on sentences….
Having an editor is an exercise in humility, but worth it. A primary function of the Superior Court’s law clerks is to edit draft judgments and make editorial suggestions. It is comforting to know that, before it is released, a second pair of eyes has reviewed a judgment and corrected its mistakes. Even though I wished I wrote as well as our law clerks, I always felt that my judgments went out the door better dressed after they had been edited.
One last thing, Dr. K. You asked about templates. Many years ago, Justice Bonnie Wein, a criminal law specialist in the Brampton Superior Court, created a template for sentencing decisions. It included, in headline form, all the factors that a court should consider in pronouncing a sentence. Although sentencing varies with each case, I found her template so helpful that I used it as a starting point. Some sentencing decisions can be quite complex, you know, sort of like that crown you are going to charge me for. So the short answer to your question is “Yes.”
The Hon. Helen Pierce