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About 10 years ago I was in Toronto and met a well-known, very clever member of the Canadian Supreme Court. His judgments were normally very long, with many case citations—not infrequently over 100. He (in parallel with a judge of the Australian High Court) was writing the longest judgments in a Supreme Court anywhere in the common law world. I asked, “why so long?” His answer surprised me a bit. He said: “Because I have to write for several audiences, the parties, the legal profession and the academics.” I did not agree then and I do not agree now.
Of course if you think of a judgment as a quasi-PhD thesis it will need to be long. The judge must show that he or she has reviewed all the authorities and will be tempted to try to lay down the law widely and definitively. But a judgment is not meant to be a thesis. It is to explain what the case is about and why the judge is deciding it the way he or she does. That is all. The primary audience is the parties, particularly the “guy who loses,” as one American judge put it. Judgments ought not to be written for academics at all—they consider and write about the law having regard to judgments, and have no need of judges to do their work for them. The legal profession is of course interested in judgments—but that has always been so without judges writing their judgments with the profession as a target.
The fact is that modern judgments have become far too long. Whether at first instance (where fact-finding will inevitably increase length somewhat) or on appeal I hazard that they are on average nearly twice as long as they were 50 years ago. (That is not to say prolixity was unknown—Lord Evershed, the Master of the Rolls who preceded Lord Denning, seemed to think that there was no detail too unimportant not to recite!) This is regrettable. Long judgments themselves increase legal costs—obviously a lawyer doing legal research will take longer to read a tome than 10 pithy pages. The researching lawyer will try to find the bit that matters in the morass of words—but it would so much easier and quicker (and so much cheaper) if that bit was easier to find. Life is too short to read modern judgments.
Why have they become so long? Partly of course it is because modern technology makes it so easy to pick stuff up and stick it down. Perhaps the first stage of increasing prolixity was earlier— when judges started using dictating machines. I think there is more, however. It is the culture of judgment-writing that has changed. Everyone has almost come to expect long judgments. There is now no sense of shame in turning out a few hundred paragraphs where the job could have been done in around 80. Finally there is the sheer work pressure—it is easier to write long than short.
I think judges and the professions are conscious that judgments have become too long. Some evidence of that came a month or so ago, when I had the honour to read a speech of welcome from the Intellectual Property Bar Association at the swearing-in ceremony of the new Patents Judge, Mr Justice Meade. I only added one comment of my own: “my Lord—keep ‘em short!” The amusement showed all knew there was a bit of a problem. What’s to be done? Could there be a judicial code about judgment-writing? I don’t think there is anything like that now—surprisingly judgment writing itself has never been part of judicial training. Here is a first shot at such a code:
1. Judgments should be as concise as reasonably possible;
2. Keep sentences short. Never use two words where one will do;
3. Beware subordinate clauses;
4. Keep the number of authorities you cite down to what is necessary. You are not writing to show how clever or learned you are;
5. If you quote from an authority, keep the quotation as short as possible. Seldom, if ever, use more than two sentences. The same applies when quoting from a key document;
6. Keep your recital of facts to what is necessary;
7. Avoid any detail that is not important;
8. When you have done your first draft judgment, go over it and cut out unnecessary words or see if you can say something more succinctly;
9. Then do it again;
10. Empathise with your key readers—who are the parties;
11. Eschew trying to lay down the law on the subject in hand for all future generations;
12. The losing party is the more important and you need to cover each point he or she makes. But, save for the main point(s), all others only need brief mention and disposal. This is particularly true at first instance—do not let a large number of points lead to prolixity;
13. Overall, try to make the whole thing at least readable, if not a page-turner.
