On Legal Judgment

Legal Judgment

Legal Judgment

Law is filled with legal jargons and bizarre words.

Lawyers love to use archaic Latin phrases like caveat emptor, nudum pactum, and res ipsa loquitur to spice up their submissions. Law students use words in their legal context, so that ordinary words like ‘considerations’ mean not careful thought or factor but a specific legal meaning: ‘promise by one party to a contract that constitutes a price for which he buys the promise of the other’ (Oxford Dictionary of Law). Law also preserves some old English and so, for example,  the contract is not binding  for ‘want of authority’ which just means ‘lack of authority’ (see Shakespeare’s For Want of Nail)

Surprisingly, legal judgment is or should be written in a way like old friend chatting. Former Justice Reyes (of Court of First Instance in Hong Kong SAR) told us in a marshalship that judges write judgment as if addressing a neighbor or chatting with an intelligent friend. Some judges have gone as far as referring the parties not as ‘plaintiff’ or ‘defendants’, but their first names like Jeremy or John.

Nothing is more obvious than Lord Denning’s judgments. In his judgments, he presented the facts of difficult contract or tort cases in an ‘once – upon – a – time’ fashion that looks more like fairy tale. In  Miller v Jackson, he wrote

‘In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short…’

One almost feels like reading J. R. R. Tolkien’s words in The Hobbit. Lord Denning presented us, with utmost Anglo – Saxon simplicity, the good and old English rural villages that love to play cricket.

In George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd, his last case before retirement, he opened with the following famous passage:

‘Faced with this abuse of power – by the strong against the weak – by the use of the small print of the conditions – the judges did what they could to put a curb upon it. They still had before them the idol, “freedom of contract.” They still knelt down and worshipped it, but they concealed under their cloaks a secret weapon. They used it to stab the idol in the back.’

These powerful images – judges worshipping the freedom of contract as idol but hiding a secret weapon to stab it in the back – are nowadays rarely seen.

Legal writing should not be too far from literary writing. My Tort Law textbook has even cited William Shakespeare to illustrate the Neighbour Principle:

‘There may be in the cup
A spider steep’d, and one may drink, depart,
And yet partake no venom, for his knowledge
It is not infected: but if one present
The abhorr’d ingredient to his eye, make known
How he hath drunk, he cracks his gorge, his sides,
With violent hefts. I have drunk, and seen the spider.’

(The Winter’s Tale,  Act 2 Scene 1 line 37)

The meaning of this passage can be well – illustrated by the landmark case Donoghue v Stevenson where a woman found a dead snail in her bottle of ginger beer and sued the manufacturer (and succeeded).

But using Shakespeare’s words to illustrate legal points is perhaps nothing too surprising. The origin of drama is inseparable with legal mooting and legal argument. Remember ‘To be or not to be’? On the question of suicide, Hamlet used strong rhetoric to argue from both sides. Also see Brutus’ soliloquy on whether he should assassinate Julius Caesar.

In fact, Shakespeare’s plays were popular among Elizabethan law students and were routinely played in Cambridge and Oxford. After all, aren’t lawyers like actors who must play various roles to see all different perspectives?

The point is that legal judgment can be artistic and should not be unduly dry and boring. Worst still is the confusion and over – drawn sentences. In my reading, I have once encountered a sentence that occupied 5 long lines with the use of hyphen, comma, relative pronouns.

Simplicity is an art, especially for legal writing. If law is to be accessible to common and ordinary people, then surely judges need to write in a manner interesting enough to arouse people’s interests.

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3 thoughts on “On Legal Judgment

  1. 山中 says:

    I do think that “like addressing a friend” in a judgment would be too much. Judges and lawyers would like to think that they are doing philosophy and/or science in the court, but in reality, they are not. It’s an image they conjured up to lift themselves from their boring old books, and whatnot. When I read Denninng’s judgments, I like to think that he was bored out of his mind, and that’s why he needed to write some stories.

    I do agree very much with your simplicity principle. It is just the hallmark of any good writing.

    • mrtso1989 says:

      I always have the suspicion that beside pretending to be doing something highly technical, judges sometimes wrote in a confusing way, so that lawyers can hardly pin – point a particular passage in the judgment to support their submissions in the future. That is, judges do not wish to bear the responsibility.

      • 山中 says:

        That could be true as well. Since judges are supposed to interpret the law, not making law, they have to be vague and ambiguous to a certain extend, and the finer points are for the subsequent courts to decide. This mentality limits the access to the law and delay social changes. Many a time, a judge could have made a stand there, but, most often then not, they’d decide not to do it unless they are conservative judges like Scalia.

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