The author reflects on their experience writing judgments over many years, noting the initial hope that it would become easier with time, but finding that there is no single "way" to write them.
The author expresses distaste for the repetitive introductions often used in judgments.
A bar member suggested the High Court should create more colorful and captivating judgments, but the author acknowledges that this was provided with levity and potential self-interest.
The Purpose of Written Judgments
The core justification for writing judgments lies beyond mere entertainment or fleeting public interest; it is about serving students (including legal professionals and judges themselves) and the public by clarifying the law.
Reasons for judgment should explain the judge's conclusion to the parties involved.
Judgments assist advisors in assessing the prospects of appeals.
Judges should be "vulnerable" by providing clear reasons for their decisions, allowing for correction on appeal.
Judgments can expose defects in the law, prompting legislative reform, even though Parliaments may be slow to react.
The Judge's Role and Ethical Considerations
Judges should not be deterred by potential ineffectiveness or criticism when addressing improprieties.
Judicial indignation is permissible and sometimes required when social conscience demands attention from Parliament or Government.
While calm detachment is essential, forceful language may be necessary to highlight critical issues.
Praise or blame of individuals should only be included if strictly relevant to the matters to be determined.
A judgment should focus on accepting or rejecting evidence, rather than expressing belief or disbelief in a witness.
Public Administration of Justice
The delivery of reasons is integral to the open administration of justice.
The reasoning behind a decision must be transparent to ensure accountability and high performance.
Jeremy Bentham: "Publicity is the very soul of justice."
Judges must be open to censure but should reserve judgment, avoiding hasty decisions influenced by external pressures.
Prioritizing correctness over speed is crucial; thoroughness in consideration and formulation of reasons is paramount.
The Superiority of Written Judgments
Written judgments offer a greater opportunity to achieve felicity of expression, enhancing the prestige of the court and the law.
Distinguished writing elevates the court's prestige.
Clear and graceful English commands respect.
Oral judgments often lack precision and thoroughness.
The discipline of writing ensures careful preparation, detecting fallacies and preventing oversight.
Self-Discipline and the Judge's Function
Judges must ensure they are truly in command of the material by settling down to write.
Re-reading evidence yields rewards in perspective.
English Judges may rely on counsel for authorities, but this is not advisable.
The Judge's role is to decide correctly according to the law, not just to decide fairly between arguments.
Independent research is essential to guard against missed authorities or aids to decision.
Applying the Law and Avoiding Personal Bias
Judges are commissioned to apply the law as it is and not to impose their personal views of what it should be.
Judicial development of the law should be limited to logical extensions of established principles, not alterations based on a judge's personal sense of justice.
It is inappropriate to start with a desired result and then search for legal justification to support it.
Common law and equity should consider fairness and reasonableness.
The Process of Writing and Avoiding Pitfalls
Dictated judgments often lack conciseness, directness, and exactness.
Careful manuscript preparation is superior to dictation.
Prolixity, irrelevant wandering, and imprecision should be avoided.
Inexactness is a cardinal sin that cannot be cured by editing.
The law is not an exact science, but a Judge should strive for scientific exactness at the point of judgment.
The Value of Reflection and Revision
Writing by hand from the beginning leads to a better job because it involves refining and reforming thoughts.
The process of writing helps to free propositions from prejudices and distortions.
Ordinary Judges should aim for profundity by reaching the heart of each problem.
Delay for careful consideration is often a lesser evil than superficiality.
Judgments should be written, as far as possible, "with all deliberate speed".
Concurring Judgements
While each Judge should generally set out their own reasons, real urgency may compel assent to another's judgment.
Judges can agree to a colleague's judgement if they feel their own version will not be any better.
Certainty in the law is a significant benefit of a joint judgment.
Multiple judgments can cause uncertainty. It may be difficult to decipher how to interpret slight differences of expression or emphasis.
Individual judgments tend to produce better work.
Overturning Decisions
Earlier decisions should not be overturned except after careful self-questioning during the writing of a reserved judgment.
It is more advantageous for the law to be settled than for court decisions to be unstable.
Over-confidence in one's own rightness should be tempered by modesty.
Conclusion
The reward of judicial work is not lasting fame, but the manner and method of coming to judgment are supremely important.
Judges should embrace the discipline of the study desk and find satisfaction in the perfect love of the work.