Judgement writing

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THIS COLUMN HAS PREVIOUSLY discussed the need for courts to provide written reasons (see China Business Law Journal, volume 12, issue 3: “Law reports” and China Business Law Journal, volume 3, issue 3: “Binding or persuasive?”). The provision of written reasons by courts is important in all jurisdictions, including common law jurisdictions, where case law or judge-made law is a source of law. One of the reasons why courts should provide detailed reasons for their decisions is to enable the law to be understood as clearly as possible. Further, the reasons must be accurately recorded in law reports made available to the public so that other courts, lawyers and society generally can review decisions and find out about the law.

This column explores the way in which judgments can be structured and expressed. It draws on the experience of judgment writing in common law jurisdictions and in mainland China, where the Supreme People’s Court issued an important guiding opinion in 2018.

Common law jurisdictions

Much has been written about judgment writing in common law jurisdictions and also about the key purposes for writing detailed judgments. It is often said that a key purpose for writing detailed judgments is to explain to the losing party why they lost the dispute (the winning party is likely to be less concerned about why they won the dispute). This is because a fundamental rule of the common law doctrine of natural justice is that when a court makes an order that will deprive a person of a right or interest, or the legitimate expectation of a benefit, the person is entitled to know the reasons for the order.

One judge has identified four purposes for a judgment: (1) to clarify the judge’s own thoughts; (2) to explain the judge’s decision to the parties; (3) to communicate the reasons for the decision to the public; and (4) to provide reasons for an appeal court to consider.

In particular, judges in common law jurisdictions recognise the need for the judgment to set out clearly the “path of reasoning”. The path of reasoning is the analytical process by which the judge arrived at his/her conclusion. Failure to disclose the path of reasoning is considered to be an error of law. A judgment may be challenged or overturned on appeal if it failed to give adequate reasons.

Courts in common law jurisdictions have held that simply setting out the evidence and the statement of findings without any commentary about how the evidence led to the findings will not disclose the path of reasoning. It is therefore important for judgments to identify the link between the legal principle that is applicable to an issue and the findings of fact that are relevant to that issue.

In addition to attaching importance to the content of written reasons, courts in common law jurisdictions have recognised the importance of structure, language (or expression), and style. Each of these aspects is discussed below.

(1) Structure

It is generally accepted that a judgment should contain the following:

  • The decision;
  • The findings on material facts;
  • The evidence or other material on which those findings are based; and
  • The reasons for the decision.

There are many ways in which a judgment can be structured. One approach is the IRAC method – Issue, Rule, Application and Conclusion. Under this method, the legal issue is first identified (the issue). The governing statute or general law is then stated or analysed (the rule). Following that, the law is applied to the facts (the application). Finally, the conclusion on the issue is provided (the conclusion).

In terms of considering the arguments or positions of the parties, some people suggest that the position of the losing party should first be set out, followed by the reasons why the losing party’s position was rejected. After that, the judge should set out the reasons why the position of the winning party was accepted.

Other structural techniques include the use of headings and subheadings, which often take the form of questions so that the specific issue is clear. In addition, many judges recommend that the judgment should conclude with an outline of the reasons so that the basis of the judgment is clear, particularly to those who may not read all of the judgment.

An understanding of a judgment in common law jurisdictions is often facilitated by the preparation of headnotes by the editors of law reports, although these headnotes do not form part of the judgment and therefore do not have any legal effect.

(2) Language (or expression)

It is universally accepted that judgments should be written in language that can be understood and accessible to a broad range of readers, including those who may not be legally trained and those who may come from culturally and linguistically diverse backgrounds (for a discussion about culturally and linguistically diverse parties, see China Business Law Journal, volume 11, issue 3: “Culture in the courtroom”).

The need to write judgments that are accessible to the general public is particularly important for self-represented parties, namely parties that represent themselves in court and are not represented by lawyers (for a discussion about self-represented parties, see China Business Law Journal, volume 7, issue 9: “Self-represented parties”).

For the purpose of writing clear judgments, judges are encouraged to comply with the principles of plain English, including avoiding the use of technical or archaic terms, using short sentences and paraphrasing evidence where possible (for a discussion about plain English in the context of contract drafting, see China Business Law Journal, volume 2, issue 8: “Plain language in English and Chinese”).

(3) Style

Style is closely related to language and expression. In some judgments, judges adopt a narrative style under which the facts are set out as part of a story. A well-known example of this was the introductory paragraph of the noted English judge, Lord Denning, in the case of Miller v Jackson. The case involved a dispute over the right to play cricket on a cricket field:

In summertime, village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in county Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers.

The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now, after these 70 years, a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket.

This newcomer has built, or has had built for him, a house on the edge of the cricket ground, which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on, or near, his house.

His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

Mainland China

In mainland China, the basic content of a court judgment is stipulated by law. Article 156 of the Civil Procedure Law reads as follows:

Article 156

A written judgment shall clearly state the decision and the reasons supporting the judgment. The contents of the written judgment shall include:

(1) The cause of action, the claims, the facts and grounds of the dispute;

(2) The facts and grounds as found in the judgment, and the applicable laws and reasons;

(3) The result of the judgment and the apportionment of litigation costs; and

(4) The time limit for appeal and the court with which an appeal should be lodged.

A written judgment shall be signed by the judicial officers and the court clerk, and the seal of the people’s court shall be affixed to it.

Many courts in mainland China follow a standard approach in structuring a judgment. The general structure is as follows:

  • The first part, which sets out the parties in order and the basic circumstances;
  • The factual part, which includes the plaintiff’s claim, facts and reasons, the defendant’s facts and reasons, and the evidence and facts as determined by the people’s court;
  • The part outlining the reasons and the basis of the judgment;
  • The text of the court’s orders; and
  • The final part (or tail), which provides notification of the responsibility for delay in performance, liability for the costs of litigation, and notification of appeal rights.

In 2018, the Supreme People’s Court issued the Guiding Opinion on Strengthening and Standardizing the Analysis and Reasoning in Adjudicative Instruments. Article 2 of the guiding opinion provides that, “the interpretation and reasoning of the judgment document must clarify the matter, explain the facts of the case as determined by the judgment and their basis and reasons, and demonstrate the objectivity, fairness and accuracy of the determination in respect of the facts of the case”. In addition, the judgment must “explain the legal norms on which the adjudication is based, and the reasons for applying the applicable norms”.

The guiding opinion contains several provisions that reflect the approach in common law jurisdictions. For example, the guiding opinion provides that judgments “must reflect the reasoning process” (article 3). In addition, judgments should generally not use dialect or slang (article 15).

It will be interesting to see the impact of the guiding opinion on judgments in mainland China in the years to come.

Andrew Godwin 2015
Andrew Godwin

Andrew Godwin is currently a member of a World Bank team that is advising a central bank in Asia on potential reforms to its mandate. He previously practised as a foreign lawyer in Shanghai (1996-2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law (2006-2021). Andrew is currently Principal Fellow (Honorary) at the Asian Law Centre, Melbourne Law School, and a consultant to various organisations, including Linklaters, the Australian Law Reform Commission and the World Bank.

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