By Lisa Sylvester, National President, Australian Law Librarians’ Association; Regulatory Officer of Legal Services Commission Queensland
A judgment that is easy to read and understand is the ideal judgment that as legal researchers we would all like to find. Something so simple, and easy to understand, delivering thorough reasoning of the decision-maker in coming up with the concluding remarks.
Justice Alan Wilson (Supreme Court Judge and President of the Queensland Civil and Administrative Tribunal) addressed a recent conference of regulatory officers about the statutory obligations and good practice of making and delivering clear decisions, to assist the attendees to develop skills in writing their government department decisions.“The key is to write reasons that can be understood: reasons which expose, in language that is as simple and straightforward as the matter allows, how and why the decision-maker came to the decision; and, by that simplicity and clarity, allow the reader to see and understand what has happened – and, at best, why it is right.”
Why is this best practice and what are the key elements to achieving this?
- Use accessible language: ‘Judge-speak’ has resulted in some Australian High Court decisions being five times longer than they were 80 years ago. Some decisions are extremely long with quotes fro other cases and many footnotes, which discourages reading, unless you are required to. Wilson J recommends to consider the question ‘will the recipient understand what I have decided?’
- Well written reasons are persuasive: The reasons need to be written to be understood using simple language with the how and why the decision was made. You need to write in a manner to persuade the disappointed party that the decision was right. Avoid slabs of extracts from other decisions or repeating facts throughout.
- Provide clear concise reasons: Avoid technical words and jargon to provide a readable clear decision.
- Explain the statute: This will help the recipient of the decision understand the law that affects them. Sometimes the decision-maker may use the legislation as a smoke screen to confuse the complainant hoping they will just accept and not challenge the decision. Wilson J interestingly stated: ‘Statutes and rules are not always written in language that is easily understood – were it not so, lawyers would be redundant’.
- Known pitfalls: Yes, Judges may get things wrong, such as mistakes about evidence or failing to expose the process of reasoning. Was the evidence relevant and sufficient? Readers must be able to see and understand the ‘why’ of the decision ie the application of this law to these findings of fact = this conclusion.
- Using structure to improve quality: Set out the decision with the following points:
- what is to be decided;
- what are the relevant facts;
- what is the law to be applied;
- what happened when that law is applied to those facts;
- what decision flows logically from that exercise – After reading the first page, Wilson J suggests that the reader should have gained a good helicopter overview of the case.
- Credit issues, disputes of fact: In the decision to be delivered, is it necessary to make a finding and if so, what standard of proof is required. Is the evidence available sufficient to make such a finding. In presenting their case, what evidence delivered has probative force. If one of the parties case is preferred need to state why.
In writing decisions in this manner, Wilson J suggests that a vital element of procedural fairness of reasons being ‘accessible’ will be met. The High Court has repeatedly said that findings must be rational, and logical.
What can legal researchers learn from this approach?
Judgments are ideally meant to deliver the decision-makers reasons in a clear concise manner. When delivering cases to our clients, we should also consider writing a summary as to why the cases located were relevant to the research conducted and what key points within the cases may assist. Case citators are also a valuable tool to assist with this, with a concise summary of facts and the outcome. The citators are not always right with their analysis, so make sure you also do check before delivery to your clients.
Concise reasons – we can but dream that all decision-makers will take this approach to judicial writing to make legal research tasks easier.