A High Court judge was rightly taken to task by the Court of Appeal this week for committing a very grave error in a recent judgment. Mr Justice Richard Humphreys’s mistake was not that he decided the case wrongly; the appeals court agreed with his decision. Rather his offence was to write in a blatantly engaging style, drawing on contemporary expressions and well-known cultural references to enliven his prose.
“Judgments must be written in clear, understandable language but that does not mean it is appropriate to resort to slang or colloquialisms (other than in quotes),” the appeals court stated. References to “gaslighting” and walking “into Mordor” meant the judgment could “only be understood by reference to literary tropes which may or may not be understood by a reader”.
Readability should of course have no place in a court judgment. Independent Ireland’s legal system has a long and proud tradition of judicial pronouncements that are long, turgid, repetitive and written in prose that aspires to the rhetorical heights of a Wikipedia entry. Sure, there should always be room for the odd colloquialism, but only if it is in Latin. Judgments are not written to be read, at least not beyond the intended audience of those who are made (students) or paid (solicitors, barristers, journalists) to read them.
There could be wider fallout from any slippage in standards. One of the cherished pillars of our legal system is impenetrability of language. Many of the tasks performed by lawyers are fundamentally quite simple. Some of the arguments they deploy are simpler still. But the beauty of a legal education is that it equips the practitioner to write and speak and even modulate their accent in a manner that is utterly removed from ordinary patterns of speech, making everything sound much more complex and opaque than it is. If the law can be explained in a way non-lawyers can understand – if it is to be made, to adopt a faddish recent coinage, accessible – people might wonder what exactly they are paying mad money to lawyers for in the first place.