08 December 2020


'How to write a legal judgment' by Robin Jacob comments 

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.