14 September 2013

Lord Hope on 'Writing Judgments'

This is a short post inspired by Lord Hope's 'Writing Judgments'. In his 2005 Judicial Studies Board Annual Lecture, Lord Hope examines judgment-writing's requirements, who is best at such writing, and some issues and praise to watch out for.

1. Praise

Lord hope suggests that if one judge refers to another's judgment as a 'privilege to read', it is superb.1 If, on the other hand, one judge merely had 'the advantage of reading' another judge's words, the text referred to is likely to be useful but unlikely to reach the highest thresholds of quality.2 The latter attribution is simply to show respect.

Therefore it is sensible to scan judgments for these words; readers/students may benefit more from reading privilege-class judgments than others. During a law degree, there is much to read and time is short. I do not suggest students ignore sections of the recommended reading; but once those texts are finished, I suggest students tackle the better opinions in judgments before the others. That way, it is easier to get through more of the further reading.

For example imagine there are five cases in your further reading. You only have one spare hour. There might be three or four privilege-class opinions--which are possible to read in an hour--in those five cases. Read those first.

Lord Hope's remark is useful because it provides students a stable hierarchy which may be applied to rank efficiently cases and opinions, to help with time organisation.

1.1 Shiny Cards

Lord Hope states Lord Hoffman and Lord Denning are rivals for talented writing.3 He is also fond of Lord Steyn's prose. All three should be noted as worth reading. He notices that Lord Steyn uses words like 'intense and particular focus' and 'concrete'.4 These words, says Lord Hope, have a powerful effect because they are 'compelling', and help Lord Steyn be persuasive.5

2. Issues

The issues under this heading stem from the above: Lord Hope recognises that not everyone is as good a writer as Lord Steyn. So to continue, he offers some advice for us more ordinary writers.

The purpose of writing is to communicate. In judges' opinions, that communication involves the reasons for the decision, a few words about the factual situation, some discussion, and perhaps an order for one party to pay costs, etc. So long as judges' words relay this information, the judgment is probably adequate. To ensure the writing is also understood, Lord Hope recommends 'we keep our sentences short and our propositions simple and accessible'.6

This is good advice. During first drafts, though, it may be easier to write in whatever words leak from your fingertips to your keyboard. Then edit afterwards to delete almost everything that detracts from simplicity and accessibility. If this post were a formal essay it may be improved if the flourish, 'words leak from your fingertips…', were replaced with 'words you type'.

3. Other Advice

3.1 Know the Audience

The writer must consider the audience when he or she writes. However obvious this sounds, Lord Hope examines a study from over twenty years ago:
'fewer than half (…) the law lords (…) interviewed [at that time] had given any thought to who their audiences were when (…) preparing and delivering (…) speeches'.7
This is often a problem for new writers, but it is easy to overcome once one realises the problem exists. When writing assessments, know that your audience is whoever marks the work. But do not solely target such a small audience because it will inhibit your prose:
  • Imagine the reader knows how law works; but
  • Do not assume the reader knows about every new legal or political development;
  • Ensure you define any words with specific meanings in your essay or field--even if you know your lecturer/tutor/teacher is aware of those details; and
  • Ensure your early words present sufficient background information. If a premise only makes sense in the context of history, law, ethics, or politics, then it is important to include that context before the premise is introduced. This way, your writing is rendered accessible to a wider audience, and therefore is more likely to be coherent to your narrower audience.

3.2 Take Care with Gendered Prose

Lord Hope supports genderless and equality-conscious writing.8 As such, he says write 'he or she', 'him or her', or reword the sentence to remove gender altogether. Lord Hope approves of the latter and warns against supplanting 'his or her' with the plural 'their' when only one person is referred to.

To demonstrate this, I could rewrite the first sentence under the previous heading: 'Writing that considers the audience is better'; this editing removes the gender reference so is less clunky, and less likely to offend or be criticised for any resulting offence.

4. To End…

There is more great advice in Lord Hope's full lecture, 'Writing Judgments'. I leave it to you to read the whole thing, which may be found on the judiciary website for free, along with many other judicial speeches delivered as lectures rather than in case law. To find the other speeches, click 'Speeches' in the left-hand column, select a year, then select a month. If you find a judge whose style or subject matter you enjoy, find a lecture by them and you will find a link to the judge's other speeches on the resulting page.

1 Lord Hope, 'Writing Judgments' Judicial Studies Board Annual Lecture 2005 (accessed 5 September 2013) 3.
2 ibid.
3 ibid 6 referring as examples to Lord Denning in Hinz v Berry [1970] 2 QB 40, 42B; White v Blackmore [1972] 2 QB 65; Lloyds Bank v Bundy [1975] 1 QB 326, 334.
4 ibid 8 citing Lord Steyn in Marc Rich & Co v Bishop Rock Ltd [1996] AC 211, 236C–D; Lister v Hesley Hall Ltd [2002] 1 AC 215, 224 [18] and R v A (No 2) [2002] 1 AC 45, 65 [38]; Arthur J S Hall & Co v Simons [2002] 1 AC 615, 680D–E respectively.
5 ibid 8.
6 ibid.
7 ibid 2 referencing Alan Paterson, The Law Lords (MacMillan 1982) 10.
8 ibid 8.

Created: 14 September 2013. Version 1.0.

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