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JUDGMENT WRITING : EFFECTIVE COMMUNICATION

________________ JUSTICE V.V.S.RAO

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PRIVILEGED PROCEEDINGS

1. Judicial proceedings are privileged;

2. Judicial function is not a cause of action for defamation;

3. The conduct of a Judge cannot be questioned by Executive;

4. Articles 121 and 211 of Constitution; and

5. Judicial review of legislative or administrative action is a privilege.

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DEFINITION OF JUDGMENT-I

1. Official and authentic decision of Court of Justice upon rights and claims of parties to an action litigated and submitted to its determination and reasons therefor.

2. Determination or sentence of the law pronounced by a competent Judge or Court as a result of a proceeding instituted in such Court.

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DEFINITION OF JUDGMENT-II

Code of Civil Procedure, 1908 Section 2(9): The statement given by a Judge

on the grounds of a decree or order. Section 33: Court after the case has been

heard shall pronounce Judgment and on such Judgment a decree shall follow.

Order XX contains Rules for preparation of Judgments and decrees and their pronouncement

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DEFINITION OF JUDGMENT-III Criminal Law Code of Criminal Procedure Code does not define Code of Criminal Procedure Code does not define

the term ‘Judgmentthe term ‘Judgment’. Section 235 CrPC mandates the Judge to give a

Judgment after hearing arguments. Chapter XXVII (Ss.353 to 365) contain the format,

method and manner of preparing and delivering a Judgment.

Section 19 IPC: Judge as to mean, ‘every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive Judgment or a Judgment which, if not appealed against, would be definitive.

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ORDER XX RULE 4(2) CPC

Judgment shall contain

1. Concise statement of the case

2. Points for consideration

3. Decision on the points

4. Reasons for the decisions

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ORDER XLI RULE 31

Appellate Judgment shall state

(a) points for determination;

(b) decision thereon;

(c) reasons for the decision; &

(d) relief

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TIME SCHEDULE

Order XX requires trial/appellate Judges to pronounce Judgment within thirty days after completion of arguments.

Adhere to time schedule, before memory starts fading, ensures grip over the subject matter.

The Judge who delivers Judgments without delay is always kept in high esteem by the litigants and lawyers.

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TRINITY OF GOOD JUDGMENT

1. BREVITY

2. SIMPLICITY

3. CLARITY

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BREVITY

It means concise and exact use of words in writing.

Judgment should be brief while not ignoring core issues as well as collateral issues.

Quality, however, cannot be sacrificed for quantity.

Repetition of same point, evidence and pleadings makes reading tortuous.

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SIMPLICITY

A judgment is written mainly for the parties to litigation. Therefore, it should be understandable by them.

Simplicity in use of language in explaining legal principles makes an opinion forceful.

A judgment becomes vague if it contains long complex sentences and round about approach to the problem.

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CLARITY

Clarity of a judgment can be achieved by thorough reading of facts and law.

Division of judgment under different headings helps.

Avoiding unnecessary quotations from the pleadings and law enhances clarity.

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‘CUT OUT CACKLE ANDCOME TO POINT’

Judicial verbosity is impossible to control.

Language be simple and understandable by ordinary person.

If length is inevitable, begin with summary of one paragraph to give thrust of decision.

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… … BE CLEAR AND PRECISE

Remember “more words there are, the more words are there about which doubts might be entertained”.

Lord Denning used to say, “old words are best of all”.

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SOME TIPS IN ACHIEVING TRINITY

(i) avoid use of cliches and rhetoric

(ii) be precise and to the point

(iii) use active voice

(iv) be particular than vague

(v) use simple and direct prose, and

(vi) try to be interesting.

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WHAT’S GOOD JUDGMENT?

Thinking mind is twofold(i) Judicial Mind which analyses,

compares and chooses.(ii) Creative Mind which foresees and

generates ideas.

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Good judgment is a test of trained mind When judicial mind and creative mind

work together, we have a good judgment

Judgment keeps imagination on the track and imagination enlighten judgment

Judicial effort and creative effort call for analysis and synthesis

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Judicial mind breaks down facts, weighs them, compares them and reject some, keeps others to form a conclusion.

A creative mind also does the same but it results in an idea and not a verdict.

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There are two kinds of judgments.(i) Critical Judgment

This calls for knowledge (ii) Constructive Judgment

This calls for imagination

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BALANCE TO BE MAINTAINED

Too much of analysis and synthesis without imagination results in chocked opinion.

Critical and constructive judgments, therefore, must be balanced in forming opinions.

Imagination sometimes helps to analyse probabilities of the case.

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ARCHITECTURE AND MASONRY

A Judge should be a legal architect and not a mason, laying brick after brick

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DISCIPLINE OF LAW-I

Follow fair procedure which includes

principles of natural justice. 1. Audi alteram partem (no man shall be

condemned unheard); 2. Nemo debet esse judex in propria causa

no one can be a judge in his own cause); and

3. Nemo protest esse simul actor et judex (no one can be at once judge and suitor).

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DISCIPLINE OF LAW-II

1. Justice according to Law: “Judicial power is exercised to give effect to Will of Legislature not to give effect to Will of the Judge”. If law is arbitrary, unreasonable, irrational or capricious different considerations would emerge.

2. Subconscious element in Judicial process – Precedent moulds decision Judicial mind never resists gravitational pull

of binding precedent

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GOOD JUDGMENT-I SOME DOs

Adhere to statutory requirements Discuss pleadings and evidence adopting précis

method Consider all issues in group or separately and

record conclusions giving reasons Support your reasons by statute/precedent law Use simple sentences to convey the reasons Before pronouncing, read and re-read the final

copy Employ cohesive, comprehensive and logical

prose while writing Judgment

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GOOD JUDGMENT-II SOME DON’Ts

Avoid verbatim, extracts from pleadings& evidence

Do not ignore grammar of language or else sentences convey different meaning

Be careful in using negative words Do not use rhetoric or hyperbola to

emphasize a point Do not exaggerate Do not take a discussion beyond the issue

for consideration Do not write lengthy Judgments

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ENSURING GOOD JUDGMENT-I

TAKE ACTIVE ROLE DURING PRE TRIAL AND

TRIAL STAGE PRE TRIAL STAGE On the day the trial commences or before it, just

browse through the pleadings and documents filed. While doing so, note points or case law or relevant

statutory provisions During the trial, be attentive Record evidence yourself After recording evidence, read the typed copy of

deposition at least cursorily

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ENSURING GOOD JUDGMENT-II

ARGUMENT STAGE

Take down notes when the rival counsel put forth their arguments

If any decisions are cited, go through them carefully during the argument stage itself

To generate debate on a legal point, ask questions when you sit down for writing Judgment

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ENSURING GOOD JUDGMENT-III

WHEN YOU SIT DOWN FOR WRITING JUDGMENT Before actually starting writing or dictating, read entire

record once It certainly improves quality of Judgment and reduces

the time taken for dictating the Judgment After draft Judgment is prepared, correct it constantly

referring to the record Before pronouncing Judgment in open Court, read

once again to see whether the findings of all issues are recorded correctly

Do not pronounce any Judgment in great haste

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THANK YOU ALL