Handbook for Judicial Officers — Delivery of judgments

How to develop effective judgment writing[1]

The Honourable Mr D Lloyd QC[2]

Good legal writing is an art, not a science. And, while it is an art that one can spend a lifetime learning, the following article helpfully summarises courses on judgment writing held at the Judicial Commission. This article should be read in conjunction with the following articles by J Raymond, “The architecture of argument” and “Five ways to improve your judgment writing”.

Why do we have courses on judgment writing skills? The answer should be obvious. As judges we all spend more time sitting down, writing, than doing anything else. In my case, I kept for my own information an accurate record of how much time it took me to write a reserved judgment. I did this over 39 consecutive judgments. I found, to my surprise, that it took me, on average, about four times the hearing time to produce a reserved judgment. In discussing my findings with other trial judges I discovered that my experience is not unusual. The Honourable Dennis Mahoney AO, former President of the Court of Appeal, estimated that it took him about one-and-a-half times the hearing time, on average, to produce a reserved judgment.

Another reason why we have courses on judgment writing skills is that, no matter how long we have been in this job, or how experienced we are, we all fall into bad habits. Nobody is perfect.

Anything, therefore, which makes the task of judgment writing easier, shorter, more efficient and more effective, is to be embraced with enthusiasm. Writing is, of course, an exercise of communication skills. Better writing improves our competency, efficiency and effectiveness. Effective communication skills lead in turn to community confidence in the judiciary.

As the Court of Appeal reminded us in Beale v Government Insurance Office of NSW:[3]

there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system.

And as Spigelman CJ said in R v Thomson:[4]

The obligation of a court is to publish reasons for its decision, not merely to provide reasons to the parties: see F Kitto, “Why Write Judgments” (1992) 66 ALJ 787.

A former Chief Justice of Canada, Dickson J, said in an address in 1981:[5]

Our judgments touch the lives of all Canadians. They should convey meaning to all who read them.

He was using the words “our judgments” as meaning the judiciary as a whole. So too do our judgments touch the lives of all Australian citizens and should convey meaning to all who read them.

Judgments are not written just for the parties, although they are clearly the most interested readers. Judgments are also precedents. As such, they are written for other judges and lawyers, appellate courts, legal academics, law students and court users as well as the media, business sector, government, and the community at large. Similar views have been expressed by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd,[6] by Meagher JA in Beale,[7] followed and adopted by a differently constituted Court of Appeal in Athens v Randwick City Council[8] and by Spigelman CJ in R v Thomson.[9]

The right Honourable Sir Vincent Flossiac, of the Eastern Caribbean Court of Appeal, said:[10]

A written judgment is a public document. As such, it should be available to the whole world. For this reason, it is sometimes published in the Gazette or in the Law Reports or even on the Internet where it is universally accessible.

Since a written judgment is a public document, it should be intelligible to the general public. It is not sufficient that the judgment can be interpreted or appreciated by judges and other jurists. It must also be comprehensible to the average literate laymen [sic] and in particular to the litigants who are affected by the judgment.

Since the people for whom we are writing include those who may be unfamiliar with the case or unfamiliar with the applicable legal principle, the essential quality of a judgment is clarity of expression.

In applying Professor Raymond’s approach to judgment writing,[11] one must first look at the fundamental purpose of a judgment, namely, to record, analyse, persuade and decide. Secondly, the structure of the judgment must be considered. A judgment should contain:

1. 

Introduction (“who did what to whom”, or “who is arguing about what”);

2. 

A statement of the issue or issues (“what is the question that the court has to decide”);

3. 

Then follow five easy steps:

(i) 

write a case-specific heading for each issue

(ii) 

the issues in a sequence that makes sense

(iii) 

briefly tell the story that gives rise to each issue

(iv) 

analyse each issue, and

(v) 

write a conclusion.

In analysing and disposing of each issue, the writer need only set out the losing party’s position and then set out the flaw in the losing party’s position. Professor Raymond also advocates the principle of proximity — the facts and law which relate to each issue should be set out in the analysis section of each issue.[12]

Professor Raymond advocates the writing of minimalist judgments. Common mistakes that he identifies in judgments include the following:

  • things that do not need to be recorded

  • deciding things that do not need to be decided

  • obscuring the analysis with poor organisation and irrelevant details

  • neglecting the “aesthetic” component of persuasion

  • making the analysis more complex than it really is. Everything that is unrelated to the issues should be cut out — “every word must earn its right to be on the page”.

Oliver Wendell Holmes, Jr, Justice of the Supreme Court of the United States, famous for the brilliant legal reasoning in his written opinions, wrote:[13]

I abhor, loathe and despise these long discourses, and agree with Carducci the Italian poet who died some years ago that a man who takes half a page to say what can be said in a sentence will be damned.

According to Professor Raymond, good legal writing is an art, not a science. It begins with imagining your readers as friends and neighbours and writing in a way that they can understand: “It is an art you can spend a lifetime learning.” The acid test for a well-written judgment is to ask: “How long will it take a reader unfamiliar with the case to determine who did what to whom or who is arguing about what before anyone set foot in court; the issues to be decided and the losing party’s position and flaw in the losing party’s position for each issue; and the remedy or judgment”.

Professor Raymond also looks at writing style. He offers the following checklist:

  • break up any monster sentences

  • get rid of legalisms

  • replace passive voice with active when active voice works better

  • replace the verb “to be” when a better verb is available

  • cut out every word that will not be missed

  • cut out every detail that has no bearing on the issues

  • make sure every word earns its right to be on the page

  • give yourself permission to write like a writer.

Most judicial officers who have done Professor Raymond’s course end up writing shorter judgments — which contain only the essential material — and which are better expressed, clearer, easier to write and take less time to write.


[1] Previously published in (2007) 19(5) JOB, updated 2021.

[2] The Honourable Mr Lloyd QC was a judge of the Land and Environment Court of NSW from 1997–2010. He has also served as an Acting Judge of the Supreme Court of NSW, assigned to the Equity Division (2005–2006).

[3] (1997) 48 NSWLR 430 per Meagher JA at 442.

[4] (2000) 49 NSWLR 383 at 394.

[5] An address to the Canadian Institute for the Administration of Justice, Seminar on Judgment Writing, 2 July 1981.

[6] (1987) 10 NSWLR 247 at 279.

[7] (1997) 48 NSWLR 430.

[8] [2002] NSWCA 83 per Handley, Beazley and Giles JJA.

[9] (2000) 49 NSWLR 383 at 394.

[10] V Flossiac, Eastern Caribbean Supreme Court Orientation Programme for New Judges, 2002.

[11] J Raymond, “The architecture of argument” (2004) 7(1) TJR 39.

[12] ibid at 44–46.

[13] M DeWolfe Howe (ed), Holmes-Pollock Letters: The correspondence of Mr Justice Holmes and Sir Frederick Pollock 1874-1932, 1941, Harvard University Press, Cambridge MA, p 245.