Taking Simplicity Seriously: An Alternative Approach To Plain Writing In Judgments

Sarthak Sahoo

29 Jan 2025 12:07 PM IST

  • Taking Simplicity Seriously: An Alternative Approach To Plain Writing In Judgments

    On the 4th of March in 2008, an attorney appeared for the appellants in the US court of appeals for the fifth circuit. Seeking relief for a breach of contract from the employer, the bench posed routine questions to him. However, when asked about a particular case, he replied, 'I don't know [the case] Morgan, Your Honor.' When the judge asked him if he tried to read the case, the...

    On the 4th of March in 2008, an attorney appeared for the appellants in the US court of appeals for the fifth circuit. Seeking relief for a breach of contract from the employer, the bench posed routine questions to him. However, when asked about a particular case, he replied, 'I don't know [the case] Morgan, Your Honor.' When the judge asked him if he tried to read the case, the attorney responded, 'I try not to read that many cases, your Honor.'

    While the attorney earned being characterised as 'troubling and disgraceful' in the judgment of the court, there is some laconic truth to the idea that judgments are not easy reading, even for those trained in the law. Ridden with 'legalese', such decisions are sometimes impenetrable and incomprehensive to its readers.

    The high court of Himachal Pradesh makes for a notorious case study. Since 2017, there have been atleast five instances of decisions from that court being considered illegible or prolix. To illustrate, in 2021, Justice MR Shah claimed to have reached out to the 'Tiger Balm after reading' a judgment of the court. Soon after, the first month in 2022 had the Supreme Court quipping on whether the language used by the court was the Latin of yore.

    Later, in March 2022, the Court found the language used by the high court as being 'utterly incomprehensible'. It allowed the appeal in the case to set aside the judgment as the 'on the basis of which the High Court has proceeded […] [could not] be discerned from the judgments.' Even the Supreme Court itself is not free of such follies.

    Naturally, the plain language movement, as well as some judges themselves (points 28 to 30) have exhorted their brethren to make judgments simpler and more readable. The central thrust behind this policy position has been to make judgments more 'accessible' to the 'general public'.

    In this essay, I wish to take a more nuanced perspective on the language employed by courts. I argue that, fundamentally, popular accessibility is not a good reason to promoting plain language judgment writing. Apart from its poor persuasive capacity, it is based on a misconception on why judges write the way they do.

    Instead, I offer alternative justification for judgments to be simpler: inter-court ease of operations and judicial economy. Using this rationale, I shall illustrate a few actionable insights and enforcement tools for judges to write simple judgments, while maintaining alignment with the motives and mechanics of conventional judgment writing.

    The popular accessibility cliché

    Today, proponents of plain language suggest that making judgments simpler is important for the public to read and engage with it. As the Supreme Court Observer suggests, '[a] court's public interest and public reasoning function mandate that it should be intelligible and understandable to the general public.'

    This view has intuitive appeal. Undoubtedly, as a rule, decisions of public institutions are public property. More crucially, they have a routine, and occasionally transformative, impact on individual rights and obligations. Therefore, rendering them comprehensible is a useful objective. However, in my view, this is a poor vehicle for plain writing advocacy.

    For one, it is simply untrue. Even at their clearest, judgments consist of a variety of 'terms of art'. These refer to words with a specific and special meaning within a profession. Not only will these be alien to a layman regardless, they are often unfamiliar to lawyers not engaged in daily litigation.

    Secondly, even if laymen can go through judgments with ease, they are unlikely to know how to understand them accurately. Unlike statutes, which when drafted in plain fashion, with the assistance of non-obstante clauses and provisos are easily legible to the layman, judgments can often only be understood via a body of uncodified rules so specialised that only a lawyer is supposed to know them.

    Take, for example, the difference between ratio decidendi and obiter dicta. Or the impropriety of commenting or overruling coordinate (or even larger) benches. Often, these discriminations make a tangible difference in understanding a judgment, even if it is plainly written. If claims of public accessibility were true, these rules would be a priority to disseminate widely. Instead, they are kept for the lawyer's exclusive preserve.

    Lastly, its largely unlikely that even on solving all of the aforementioned, public accessibility may improve. To instantiate, the Woolfe reforms in the UK aimed at, inter alia, simplifying legal terms ('Plaintiff' became 'Claimant etc). However, there is no evidence of any rising laymen interest in the Whitebook or the civil procedure in England and Wales. Today, this may be seen as a merely token move.

    On a more culturally accurate view, legal proceedings—especially often in India—are seen as a troublesome headache. For most people, the purpose of engaging advocates beyond finding professional help, is to delegate away the human worries that accompany a case; which pervade lives, destroy families, and upset civic harmony.

    Put together, these factors render the public accessibility ground for plain language writing as untenable. Judges have an intuitive understanding of the above mentioned three 'issues' with the public accessibility argument. Therefore, there is no persuasive force to change the way judgments should be written.

    Diagnosing dense prose

    Having established what does not work to change the way judges write, we should now proceed to suggesting what might. However, it is crucial at this stage to understand why judges write the way they do.

    A variety of theories have been advanced to explain the problem of legalese. Here are few. Firstly, that legalese is tied to economic sustenance—if judgements could be understood by common folk, lawyers would be unnecessary. Secondly, that it is 'tradition' to write this way consciously. And lastly, that legalese is written to assert authority and superiority over the plebian hoi polloi.

    However, all of these theories have poor explanatory power. They fail to realise that judges respond, like all humans occupying any office, to the immediate functions they are entrusted with. Rarely will a judge be so callous as to write in complex language so that legal literacy remains low, or that he be seen as the most formidable lawyer. Similarly, given the cumbersome nature of legalese, there are no incentives for judges to follow a 'tradition' without any apparent payoff. Needless to say, there may be particular instances of the aforementioned, but they would not justify the widespread and deep nature of this malady.

    Instead, judges write legalese for the same reason that academics write 'academese' and bureaucrats write 'officialese'. As Pinker, a psycholinguist and a former chair of the usage panel of the American Heritage Dictionary, states in his Sense of Style (2014) , simple writing is difficult.

    Not only is writing an 'unnatural act', it does not allow the authors to operate with the flexibility that come with human speech. 'The recipients are invisible and inscrutable, and we have to get through to them [while writing] without knowing much about them or seeing their reactions.' (pg 28)

    To make matters worse, judges may often suffer from the 'curse of knowledge' (ch 3), where those with advanced running knowledge of a subject (or the facts of a case), may not be able to visualise how the text reads to the uninitiated (or an appellate judge).

    Lastly, confounding is the fact that judgments are often written under time crunches with other judicial and administrative commitments at hand. This severely limits the abilities of judges (and their clerks) to obtain an objective and independent review of drafts for readability. As is now a famously misattributed saying of Blaise Pascal, 'I have made this longer than usual because I have not had time to make it shorter.'

    Therefore, all mechanisms of plain language advocacy must be mindful of this reality of judgment writing before adopting strategies to remedy the same, and advance plain language writing. The best way to move judges to write in particular ways is to ensure the change is aligned with their immediate functions. Akin to market forces, a change in incentives will automatically introduce a change in behaviour. More importantly, such change is likely to be systematic, and will not require individual training or detangling the curse of knowledge.

    Methods and benefits

    A better rationale for plain language in judgments is also one of its acknowledged perks, but which is inevitably an afterthought. Simply written judgments offer inter-court ease of operations and judicial economy.

    The judicial function warrants a few essentials. These include disposing cases at a quick pace, with the most economy, and without compromising on diligence and the rule of law. On the appellate level, it includes avoiding re-litigation, and delivering consistent outcomes across a variety of cases. On the civic end, judges aim at addressing all arguments that parties may raise. While on the personal liability, they may wish to minimise 'punishment' actions by the bar, the executive, or even the collegium for the decisions they make.

    In my view, simple judgment writing can achieve the aforementioned. This must happen, however, by preferring specific structural changes rather than vague and arbitrary rules on the active and passive voice.

    Firstly, in judgments exceeding a few pages, or even in well-reasoned orders, table of contents should be used more frequently. This would enhance ease of navigation for both lawyers and 'laymen' alike.

    Crucially, however, these must also be accompanied by other stipulations on rational chapterisation. For example, the decisions of the England and Wales Court of Appeals are well structured in an almost identical way (with marginal room for flexibility). To illustrate, almost all cases distinguish between the procedure, facts, the law, the analysis and the conclusions reached as separate chapters.

    However, even those chapters may be further vivisected for analytical clarity. The facts chapter, shall for example, sequester sections on contextual history, the impugned conduct, and the history of the proceedings across all stages of appeal. Similarly, the law chapter will have different sections dedicated to binding law and soft law. If more than one provision is alleged to be infringed, each provision shall receive its own sub-section for analysis.

    Secondly, not only does this structural format encourage judges to provide reasons for all the decisions they take on the arguments advanced, severally and jointly, it also makes the process of writing judgments far less cognitively burdensome. Particular sections, not concerned with the judicial application of mind, can be delegated to clerks. This promotes judicial economy and quick disposals.

    To our purposes, this also ensures that the reader can easily identify and locate any particular part of the judgment, as well as better understand the legal analysis. Moreover, the chronological placement of applicable law in toto before its analysis allows for readers to better understand the weight placed on different kinds of law to reach particular reasons.

    Thirdly, this approach renders judgments turn more clear on the grounds on which they reach particular decisions. This has tremendous benefits for appellate courts, when setting aside a decision in part. They can specify the portions they affirm, express no opinion on, or disagree with. Singaporean courts are a good exemplar of this principle. This should also feature when engaging in legal analysis per se. As, for example, can be seen in Staywell:

    39. The parties did not appeal the Judge's finding that the services in relation to which their respective marks were used or for which registration was sought, were similar. However, we take this opportunity to clarify certain aspects of the Judge's reasoning.

    63. […] The question arose in this case because the Judge, at [36]–[48] of the GD, applied this court's approach to extraneous factors as laid down in Polo (CA) at [28] and on this basis placed weight on extraneous factors such as the distinct branding of the hotels as 4-star and 6-star respectively, and how the perceptions of customers making purchases would be affected by the trade channels used by the parties to market their hotel services.

    162. For these reasons, we affirm the Judge's dismissal of the opposition under s 8(7) of the Act.

    The direct impact of such incisive clarity is that parties of appeal cannot cryptically relitigate issues. Furthermore, it would ensure that such appellate courts can be consistent in findings of law when parsing precedent, without having to reappraise with the factual posture of every case.

    Fourth, much (sometimes justified) criticism is levied against courts for failing to address a crucial argument advanced by a party. Not only does this affect the quality of the decision reached, it also raises questions about the impartiality of the judge. An approach like the aforementioned, which clearly and rationally enlists the arguments by parties may go a long way in ensuring such allegations don't emerge subsequently.

    Some may (rightfully) point out that this already seems to be common practice. However, I submit that most often, these arguments are often laid out without a sense of hierarchy or classification. Therefore, the analysis conducted by the judge, and whether it has dealt with all arguments or not is often untraceable.

    Simpler language will create clarity about how each ground argued was impeached. Even errors, in this formulation, will be seen as such, and not attempts at evasion or obfuscation.

    Fifth, little attention is paid to the fact that judges may be wary of personal consequences on deciding cases in particular ways. To a limited extent, this has been flagged with reference to bail matters. However, this remains seriously under addressed when judges decide a cases a particular way due to controlling precedent or differing legal interpretations, and the collegium may attribute the same to the fides of the judge himself.

    A more structural approach to judgment writing, by making reasons, and more crucially, controlling constraints—such as a decision a judge is 'bound' to follow, notwithstanding the consequences—for decisions will be more patently visible. The chances that they may be conflated with the judges' personal views is less likely.

    As a final word, it is crucial that the aforementioned norms and benefits are uniformity undertaken, as it would promote these benefits across all judgments, irrespective of court or coram.

    Nudges and pulls

    While the analysis above establishes why simple judgments are better for judges as well as courts all around, this has clearly not been sufficient to have ripples. In my view, this is because of the lax view taken by the assessing authorities (usually appellate courts) when dealing with poorly written judgments. Instead, the following methods may be adopted to nudge and pull judges into writing in a more simple way.

    Firstly, it is well known that the collegium considers previous judgments of potential elevatees for quality. Such analyses may be announced to include considerations of structure and clarity. Notably, such a model is also preferable, as the 'quality' and 'readability' of judgments may often turn on subjective and discretionary considerations. Structural recommendations make for a clear compliance line, and are inherently more quantifiable. Therefore, they may assist the collegium in rendering elevations less liable to criticism of arbitrary selection.

    Secondly, appellate courts may make it a point, much like Singapore cited above, to explicitly indicate grounds of the proceedings below that led them to remand or reverse a case. Similarly, such courts should ask for fresh reconsideration of cases where the judgment is inadequately structured so as to raise issues of grounds remaining unaddressed. This naturally incentives the judges of first instance or intermediary levels to tune their judgments in more clear ways.

    Lastly, full-courts can adopt particular directions for themselves to write judgments using the structural approaches. Notably, this is not unprecedented either. The Code of Civil Procedure 1908 has been successful in ensuring civil courts deliver structurally clear decisions due to their statutory mandates on framing issues, identifying the burden(s) of proof, as well as matching particular grounds to particular relief.

    Needless to say, the autonomy of constitutional courts' judges neither can, nor should be restricted by administrative rules. There should be no effect of such directions on the substantively nature of judgments. However, such directions may serve as binding with effects of irregularity – placing them above best endeavour clauses.

    Writing simple judgments must be understood as an organic project, one that operates not on persuading judges, but making it easy for them to do so. The few steps mentioned above will create conditions for a more structured, and by entailment, simpler judicial record— without compromising on the technical requires of erudite, academic, and comprehensive judging.

    Views are personal.


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