When it comes to judgments, judges might look to novelist George Orwell's rules of writing, including "not to use a long word where a short one will do", according to a new book on judgment writing by a High Court judge.
Guidance, Mr Justice Max Barrett suggests, might also be obtained from CS Lewis, author of The Chronicles of Narnia, who advised in favour of empathy and avoiding "condescension" and "moralising".
The judge is donating any profits from his forthcoming book, The Art and Craft of Judgment Writing: A Primer for Common Law Judges, to the Ukrainian war relief efforts of the International Red Cross and Red Crescent Movement.
Believed to be the first comprehensive published guide to judgment writing, the book explores, among many topics, the “attractions of brevity, clarity and simplicity” when writing judgments, and suggests there is an ethical and legal basis for “intelligible” and, in appropriate cases, “child-friendly” judgments.
Mr Justice Barrett was widely praised some years ago for introducing a practice of attaching to his main judgments in family law, asylum and immigration cases a short, plain-language summary of his findings directed to the affected parties.
His book suggests a particular need for simplicity in judgments in such cases and contends that appending a simplified “plain language” note to such judgments is “a useful innovation”.
His experience is that, “in a whole swathe of cases”, the parties in court “just do not understand what is going on . . . to the point of throwing occasionally desperate looks at the judge as if to advise what on Earth is happening”, he writes.
He considers writing tips from some prominent poets and novelists might benefit judgment writing. Observations by George Orwell, author of Animal Farm and 1984, including that English is better deployed "as an instrument for expressing and not for concealing or preventing thought" are "readily transferable to the judgment writing context".
He approvingly refers to Orwell’s advice, including to desist from “gumming together long strips of words . . . and making the results presentable by sheer humbug”.
He endorses writing advice by US author and essayist Edith Wharton, whose works include The Age of Innocence, including that an opening page "should contain the germ of the whole".
Former US Supreme Court judge Ruth Bader Ginsburg and former Irish Supreme Court judge Brian Walsh are among judges from several common law jurisdictions whose judgments are considered as offering lessons for judgment writing.
Among the topics examined by the book is what is meant by the term judgment and why reasons should be given. The purpose of judgments, their potential audiences, style and structure are also addressed.
His intention is to show what he has learned of judgment writing from others, and the book is not written from “a presumptive sense” of what he can teach from his own experience of writing hundreds of judgments. Perfection in the art and craft of judgment writing “is unattainable, self-improvement is always possible”, he writes.
Mr Justice Barrett’s conclusions include that getting the answer to a “tricky legal question” is not enough, it is important to “proceed compassionately and respectfully” and “neither patronise nor idealise” litigants.
A good judgment possesses an ability to rise above immediate facts and to see a problem in its wider perspective, he considers. While stating there is nothing wrong with language that is occasionally flowery and ornate, the best judgments, in his view, are “crisp and persuasive”.
The 376-page book is published by the UK-based firm, Globe Law and Business Ltd. In a preface, Sir Robin Jacob, of University College London, describes the work as "entertaining, hugely researched and above all, makes you think".
The subject is “very serious”, Sir Robin states. People “need more than an answer” from judges decisions, they need “well expressed reasons and a sense of humanity”.
