James C Raymond, PH.D., as the title page of Writing for the Court modestly describes him, is a former editor of College English, professor emeritus at the University of Alabama and president of the International Institute for Legal Writing and Reasoning. He has conducted seminars to assist judges in their writing of judgments in at least 22 different countries including Australia, Canada and England.
Writing for the Court is an equally modest 150 pages in length. It is divided into two parts. The first is a practical guide to clear legal writing. The second provides a theoretical analysis as to where concepts of legal proof lie among more general understandings of knowledge and certainty. Both parts, despite the difficulty of the second, easily meet any challenge that Raymond practise what he preaches in terms of clear and accessible communication.
Raymond’s practical advice is principally directed to judges writing judgments. However, he suggests that his methods are equally useful to counsel writing submissions on the basis that a successful submission should operate as a draft of the judgment that it has succeeded in winning.
The advice provided by Writing for the Court is not restricted to a suggestion that plain English be used. The suggested departures from orthodox legal writing are radical. Every legal analysis, suggests Raymond, can be distilled into and should be written as a statement of the position of the party that loses the point followed by a statement of the flaw in that position, thereby, explaining why the argument is lost.
Organising a Judgment
At the higher level of organising the whole judgment, Raymond suggests a five step process. The five steps are:
1. Identify the issues and write a case-specific heading for each.
2. Arrange the issues in a sequence that makes sense.
3. Write a beginning.
4. Analyze each issue.
5. Write an ending.
The use of a case specific heading is part of Raymond’s preference for use of concrete ideas over use of abstractions. He prefers headings expressed as short questions (“Were the brakes defective?”) or short statements of conclusion (“the brakes were not defective”). Topic headings (“the brakes”) lack energy and non case specific headings (“Introduction”) or (“The Plaintiff’s Case”) are less useful than case specific headings.
Raymond suggests that lack of organisation is more often the culprit for inaccessible legal writing than technical language. Issues which are dispositive should precede issues which have become moot. While there are different ways of organising issues, the principal requirement is that the order makes sense, particularly, for the reader.
The beginning of a submission or judgment should be guided by three principles: the beginning is valuable space because it will certainly be read; the beginning tells the reader what the case is about by providing a brief factual overview and identifying what the issues are; and the beginning must provide the context in which the issues make sense.
The beginning should be a simple narrative written in concrete not abstract terms. It should avoid citations of cases and statutes and avoid references to issues (like standing or source of jurisdiction) which are not in dispute. A well written beginning should cause the reader to want to read on and discover more.
In analysing issues of fact, judges are urged to explain why they have preferred one side’s evidence to the other or why they have or not been satisfied to the necessary standard of proof.
The ending of a simple judgment (or submission) need only state the order made (or sought). In a complex judgment, a brief re-statement of the conclusions of issues may be recommended. An ending may also include obiter statements that were not necessary to the judgment.
Style
The twenty seven pages on style are full of practical suggestions aimed, essentially, at achieving an accessible plain style of writing. The suggestions include: avoid legalese or foreign languages; substitute ordinary English for lawyerly English; call parties by their names rather than their position in the litigation; use as few words as possible ; avoid the verb “to be” when it can be replaced by a more specific verb; avoid “it” and “there” as dummy subjects; and avoid the passive voice.
One of the most challenging and significant suggestions is to avoid block quotations. If a judge (or an advocate) wants to rely on a particular passage from a previous High Court or Court of Appeal decision, it should be stated in simple words that state the proposition relied upon. This advice is a great challenge for most lawyers since, as Raymond correctly identifies, it is our insecurity that makes us set out the whole passage in the first place. It is nonetheless valuable stylistic advice.
Legal Reasoning and Certainty
The second part of Writing for the Court is even more fascinating than Raymond’s practical prescriptions for legal writing. Raymond identifies three kinds of fact finding in descending levels of certainty. The only area of true certainty is found in the realm of mathematics because its logic is a priori, analytic and deductive. The propositions of mathematics are absolutely certain but useless since they exist only in a world of mental constructs.
In the realm of science, propositions are either tautological (they are definitional in nature) or capable of being tested empirically. Scientific propositions based on empirical evidence are less certain than the propositions of mathematics although many of them (such as the rising of the sun, tomorrow, or the return of a famous comet) possess certainty truly beyond reasonable doubt.
Legal reasoning, on the other hand, falls into an area of discourse where concepts are dependent on their identification by human language with its inherent uncertainty. Concepts such as “property”, “inheritance”, “stealing” or “fairness” are unknowable by science. Arguments by analogy or by reasonable expectation are inherently ambiguous and must be susceptible to propositions involving different concepts of reasonableness and analogy by reference to different characteristics of the situation.
Writing for the Court rejects any suggestion that legal discourse is any less valuable for being unscientific. Science, and its degree of certainty, is useful within its own realm but of no assistance in those areas of human discourse which it cannot comprehend.
From his analysis, Raymond constructs a graphic in which the realms of legal reasoning (described as rhetoric), science and mathematics are seen to overlap but also to have their own exclusive areas not touched by the other realms. As Raymond explains, legal discourse uses the services provided by science and mathematics but is dependent on its own forms to reach its conclusions.
The conclusions that Raymond draws are that absolutely correct answers and absolutely certain verdicts are unattainable from legal reasoning processes. However, legal discourse is none the less valuable to society for these shortcomings.
Professor Raymond goes on to draw a number of moral lessons from his analysis particularly for working lawyers. One is that we should be loath to claim certainty where none exists. A second lesson is that, while we must choose rather than discover (as eternal verities) our moral positions, we are much less dangerous as social actors if we remain aware that we have made such choices.
Writing for the Court is one of the best combination bargain deals a lawyer will come across: practical and radical advice to avoid impenetrable writing in submissions or judgments accompanied by a guide to the philosophy of law and knowledge.
And all in a mere easy to read 150 pages. Although I cannot say this with absolute certainty, you would be mad to miss out.
Stephen Keim
Footnote
- Carswell has a Canadian publishing house since 1864 producing information services to the legal, accounting and human resources professions. It is now part of the Professional Division of Thomson Reuters. Further information about this publication is available from Thomson Reuters.
