THE JUDGMENT : THE ULTIMATE ASSET OF THE COURT

Judgment is the ultimate asset of the court as an institution. It is the most important document for the parties to the dispute. For the parties, what is critical to their concern is the ultimate decision and not so much the reasons for the decision. Reasons assume importance as far as trial and lower appellate courts are concerned only when an appeal or revision is filed against the judgment.

THE IMPORTANCE OF REASONING IN JUDICIAL DECISIONS

For the concerned judge, however, reasons are crucial. They indicate the working of his mind, his approach, his grasp on the issues of facts and law involved in the case, his analytical skills, the depth and breadth of his knowledge of law; and his capacity to record a cogent narrative. A judgment is the clearest index of the personality of the judge and must, therefore, be curated with care and mature reflection. Judgment writing is an art. Only to a select few, it is a natural gift. For the vast many of us, crafting a judgment is the product of long practice and persistent perseverance.

THE ROLE OF LANGUAGE IN JUDGMENT WRITING

The first requirement of good judgment is an adequate command over the language in which it is written. However correct a judgment is on facts and law, it conveys a poor impression if the structure is amorphous, the language inaccurate and ungrammatical, or the process of reasoning incoherent. Even poor judgment written in concise or impressive language will compensate to a small extent for the logical or forensic imperfections. The language of the judgment must be simple yet elegant and should contain phrases and expressions that convey clearly the analysis of law; of fact, and the process of reasoning. The usage of legal terms, expressions, and maxims improves the quality of the judgment. Care should however be taken not to use a legal phrase or a maxim because you like the sound of it, though inappropriate to the occasion.

THE LENGTH OF A JUDGMENT: QUALITY OVER QUANTITY

The crafting of judgments is an art. Neither the sheer length nor the weight of a judgment, nor its brevity, are an index of its quality. Some judgments despite reproducing the entire pleadings copiously and often repeatedly, extracting oral and documentary evidence in exasperating detail, and cataloguing or extracting precedents cited in painful and avoidable prolixity, simply conclude that some evidence is accepted, while others are not; some judgments are relevant, while others are not. They then proceed to record the conclusions without an independent analysis. This serves as an example of a long and useless judgment, a waste of judicial time, an avoidable waste of paper, and a huge burden on appellate resources. Where the law takes a curve or indicates a policy choice, the judge must follow that guidance and not innovate policy at will. The great American jurist and Associate Justice of the U.S Supreme Court, Benjamin N. Cardozo, in his illuminating 'Storrs Lectures' published as the "Nature of the Judicial Process," observed:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspirations from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the “primordial necessity of order in social life”. Wide enough in all conscience is the field of discretion that remains.

THE STYLES OF JUDGMENT WRITING

In his essay “Law and Literature,” Benjamin Cardozo observes that, in matters of literary style and the writing of judgments, the sovereign virtue is 'clarity'. He identifies six styles of judgment, which are as follows:

·      Magisterial or imperative;

·      Laconic or sententious;

·      Conversational or homely;

·      Refined or artificial, smelling of the lamp, verging at times upon precocity or euphemism;

·      Demonstrative or persuasive; and

·      Tonsorial or agglutinative, so called from the shears and the pastepot which are its implements and emblem.

If you wish to learn more about the six categories of judgment styles categorized by Justice Cardozo, you may want to refer to his 1925 essay on “Law and Literature”.

THE CRITICAL VALUE :

The Australian Jurist, Justice Michael Kirby, in an article on the writing of judgments (1990) 64 Aus. L.J. 691, pointed out the critical value of a judgment from the point of view of the litigant, the legal profession, the subordinate courts/tribunals, and the brother Judges, the Judge's conscience.

The Judge’s Duty to Litigants and the Legal Profession

He observes that to the litigant, the duty of the Judge is to uphold his own integrity and let the losing party know why he lost the case. The legal profession is entitled to have it demonstrated that the Judge had the correct principles in mind, and had properly applied them, and is entitled to examine the body of the judgment for the learning and precedent that they provide and for the reassurance of the quality of the judiciary which is still the centrepiece of our administration of justice. It does not take long for the profession to come to know, including through the written pages of published judgments, the lazy Judge, the Judge prone to errors of fact, etc. Reputational considerations are important for the exercise of appellate rights, for the Judge's own self-discipline; for attempts at improvement; and for the maintenance of the integrity and quality of our judiciary. From the point of view of other Judges, the benefit that accrues to the lower hierarchy of judges and Tribunals is of utmost importance - see also Hindustan Times Ltd. vs. Union of India - (1998) 2 SCC. 242.

JUDGMENT WRITING AS A CONTINUOUS LEARNING PROCESS

At the core of the enterprise, the drafting of a judgment is an art. We are not appointed to the judicial office in recognition of our established skills or expertise in this area. We must acquire this skill through constant effort, refinement, reflection, and through setting for ourselves goals and standards for refining the art, craft and skills of judgment writing. Constant reading of superior court judgments, including those in other jurisdictions, and of renowned judges, would greatly improve our quality, and quality once internalized sustains us for the duration of the office and beyond.

THE WISDOM OF RETIRED JUDGES ON JUDGMENT WRITING :

Rt. Hon Sir Harry Gibbs, former Chief Justice of Australia, in an article titled "Judgment Writing,” stated:

“For a retired judge to lecture about Judgment writing is to provide proof, if it were needed, of the truth of the assertion by a seventeenth-century French moralist (Francois de La Rochefoucauld - in his Maxima, 1665) that: Men give good advice when they are no longer capable of setting bad examples. But the subject goes to the very heart of the exercise of the judicial function and for that reason, it seems worth discussing. Therefore, we are here.

Views are personal.

The author is an advocate at Common High Court of Jammu & Kashmir & Ladakh.

Email ID : mansabshafiwadoo@yahoo.in

______________