Tuesday, June 18, 2013

Functionally illiterate judges and lawyers!

Good Day Readers:

CyberSmokeBlog on its travels has encountered one veteran attorney who plays fast and lose with the apostrophe likely confusing it with one of Christ's 12 apostles. Or what about the solicitor who was in love with 30 line plus paragraphs failing to realize good business writing dictates 6-7 lines for a couple very simple reasons:

(1) The optics are much, much better for the reader
(2) More importantly, individuals absorb more if delivered in smaller bits and pieces

Does the problem lie with law faculties that fail to give aspiring lawyers a basic course in Writing 101?

It's been said if you can't explain a situation no matter how complex on one page in a way easily understood by everyone do you really understand the issue?

Sincerely,
Clare L. Pieuk
Clarity in the courts: Justices to to writing school
Word by word judges are learning how to write decisions that even their neighbours can understand 

By Tracey Tyler/Legal Affairs Reporter
Friday, August 5, 2011
Justice Adele Kent of the Alberta Court of Queen's Bench in her home office. She sits in a writing chair owned by her father Parker Kent. (Larry MacDougal/for the Toronto Star)

Jim Raymond picks up his French-made Buffet clarinet, known for its rich, buttery sound. He moistens the reed and plays the sweetly familiar opening notes of “When the Saints Go Marching In.”
The former Alabama English professor is in a conference room deep in the Laurentians, demonstrating how the structure of music or writing is a big part of whether it grabs people.
Tamely follow the score and you could be uninspiring; stray into the madness of freestyle jazz and you risk losing your audience.
It’s an important lesson for the men and women around him, who are about to join the ranks of Canada’s most influential writers.

It’s an important lesson for the men and women around him, who are about to join the ranks of Canada’s most influential writers.

Their names don't appear on bestseller lists, but their words carry the greatest weight.

Not guilty.

I award custody to the children of their father.

Excluding gays and lestians from marriage violates their right to equality.

Raymond's pupils are newly appointed judges attending a seminar on writing judgments, one of several held in Canada each year. A week-long program for federal judges.

No one disputes they have fascinating raw material to work with.

"The law's dramatic," says Justice George Strathy of Ontario's Superior Court. "There are important stories, important issues and in many cases, big problems for ordinary people."

The trouble is, for the longest time, few could understand what judges were saying.

Around the world, the legal writing tradition hasn't been much to write home about.

Thirty years ago this summer, as a group of judges sat down for the first judgment-writing program in the country. Justice Brian Dickson of the Supreme Court of Canada delivered a bluntly worded evaluation of the problem. 

Judges decisions, he said, affect thousands and should be understood by all who read them. But the writing drives them away.
It’s dull, wordy, confusing.
Instead of English, the public gets Latin. Actus interveniens. Res non ipsa loquitur.
You wouldn’t think judges would have to learn how to write, what with their education and years as lawyers.
The difficulties, says Raymond, begin in law school, where their sense of story is extinguished by thickets of case law.
When they become judges, he says, they start replicating the bad writing they’ve absorbed.
“What is needed is clear, succinct, forceful writing,” Dickson encouraged them in 1981. “Rub away every muddy word.”
There were many reasons for improving.
Canada was entering a new era, with judges and their rulings taking centre stage.
The Charter of Rights and Freedoms would be signed into law the following spring, giving judges a prominent role in resolving major social and political issues — everything from abortion access to Quebec independence.
Expectations of government were changing, too, on both sides of the border. In the aftermath of Watergate, people wanted greater accountability from institutions, including courts.
And courts account to the public through their judgments; it’s how they speak.
To help them find their voice, they turned to Shakespearean scholars and Victorian literature experts. They’ve invited actors to educate them on body language — and how it can help or hinder them in the courtroom, including when they’re delivering their judgments orally.
The culture is shifting.
Instead of writing with only lawyers or appeal courts in mind, many judges now consider their most important readers to be the public — and the losing party.
Justice Jeremy Nightingale, who presides in Meadow Lake, Saskatchewan and northern fly-in communities, is an example of how far things have come.
He often gives copies of his decisions to his neighbour, a farmer, to make sure they’re readable.
“I want someone with little or no education to understand what I’m doing,” Nightingale said.
And that raises an unusual new controversy.
In a quest to hook their readers, can judges go too far? To some of their colleagues, a few judges are enjoying the writing process a bit too much, turning out prose worthy of a detective novel and crossing a line into bad taste.
All judges have their writing quirks and rituals.
“I usually have a cup of tea or coffee at hand,” said Chief Justice Beverley McLachlin, who often writes at her cottage.
Justice Fran Kiteley writes upstairs at home in her mustard-coloured study. “The only way I can think is at the keyboard,” she says.
Not so with Justice John Laskin of the Ontario Court of Appeal, who writes in longhand, often at a downtown Toronto Starbucks, fuelled by a tall cup of bold.
Streetcars clang by and there’s a parade of customers, but it’s a place where Laskin feels he can disappear.
“To write effectively, I have to feel that I am alone,” he says. “Although Starbucks is a public place, I feel that I am by myself there. I sit by myself; no one knows or interrupts me.”
Laskin has authored decisions on everything from journalists and their sources to Conrad Black’s battle to retain Canadian citizenship while sitting in the House of Lords. When he writes, he pictures the judgment being read by his well-informed neighbour, Mary Ellen.
Admired for his clear, elegant writing, Laskin often teaches the subject and co-chairs this week’s advanced judgment writing program in Toronto, sponsored by the National Judicial Institute and the Canadian Institute for the Administration of Justice.
It didn’t all come naturally, even though he grew up with a powerful writer as a father — Canada’s Chief Justice, Bora Laskin, who knocked off decisions in a basement office nicknamed “the dungeon,” emerging sometimes for a sardine-and-onion sandwich.
After following his father into the profession, Laskin spent more than 20 years on Bay Street and took pride in writing his own factums.
He became a judge in 1994 and brought one of his first decisions to a judgment writing course, a case about a Toronto lawyer found in contempt of court.
Legal writing professor Raymond liked how he drew readers in with a simple beginning, but told Laskin to cut the 28 page decision in half.
Laskin said it was impossible. Five days later, it had it down to 15 pages.
Judges don’t have editors, although Laskin has suggested hiring one at the Court of Appeal.
For now they rely on their law clerks, secretaries and skills they learn in judgment-writing programs, the oldest of which takes place in Montreal each June during the jazz festival.
Judges spend their days holed up in a conference room, where a glossy white board sticks to the wall like a giant post-it note.
Lisa Surridge, a Victorian literature expert and head of the University of Victoria’s English department, writes the letters WDWTW on the board with a marker.
Who Did What To Whom.
Surridge tells judges it’s their job to answer those questions in their introduction, which serves as a roadmap for readers.
A judgment needs organization.
For some, it’s an awakening. Judges often believe that dispensing with Latin and using plain English is the key to good writing, said Ed Berry, a retired University of Victoria Shakespeare scholar who now teaches judgment writing in Canada and abroad.
But it goes beyond that. Use subheadings to set up issues, judges are advised. Description makes things vivid, but don’t overwhelm with details. Instead of calling someone “the respondent” or “appellant,” try using their name.
The programs include lectures and workshops. Raymond tells judges their jobs are “like a secular priesthood,” and clear judgments honour their “sacred trust” with the public.
They also have a duty to provide clear and meaningful decisions.
The Supreme Court of Canada said so in 2002 after Colin Sheppard’s unfortunate brush with the justice system.
A Newfoundland carpenter with no record, Sheppard was charged with theft after his ex-girlfriend claimed he confessed to stealing two windows worth $429. The only evidence was her testimony. She went to police two days after they broke up and she vowed to “get him.”
Despite the weaknesses in the case, a trial judge convicted Sheppard in a one-line decision. “Having considered all the testimony in this case,” he said, “I find the defendant guilty as charged.”
In setting aside Sheppard’s conviction, the Supreme Court told judges boilerplate reasons aren’t good enough; They have to analyze evidence and explain why they’re accepting or rejecting it.
Since then, other social and cultural developments have elevated the importance of well-written decisions. One is the Internet. Judgments are often posted online almost immediately, without passing through a journalist’s filter.
Another development: the steady rise in the number of people representing themselves in court, without a lawyer to explain the ramifications of a ruling.
Surridge feels her writing know-how can make a difference to the country, corny as it sounds.
“I truly feel that. I do it partly as a kind of service to a fair and democratic society.”
Part of her work involves sitting down with judges and going through hard copies of their decisions, drawing attention to words that suggest bias. One judge described an accused man as an 88-year-old Status Indian charged with sexual assault.
“What’s being a Status Indian got to do with it?” Surridge questioned. “Why does it matter?”
“You know,” the judge replied. “It doesn’t.”
Justice delayed is justice denied may be a cliché, but if you’re stuck in jail or awaiting child support, you want a judge to rule quickly. Yet some linger past their best before date. Earlier this week, the Ontario Court of Appeal ordered a new trial in a gun case because Justice Susanne Goodman kept two accused men and the public waiting more than two years for her reasons for judgment, compromising the integrity of her decision.
The Canadian Judicial Council recommends judges take no longer than six months to issue a judgment. In a 2003 book for judges entitled The Most Important Thing is to Begin, Kiteley suggests if procrastination is chronic, they should look inward and ask why.
Did the lawyers do a poor job of explaining issues? Were you unwell during the trial and confused by arguments? Are you nervous about media coverage your decision might attract?
The symptoms are familiar to anyone who has put off a dreaded task: feeling ill when you think about it and doing anything but writing, such as shopping, playing computer games and watching TV, Kiteley said.
At the Ontario Court of Appeal, they keep tabs on procrastinators with a “reserve judgment list,” a sheet of paper listing unfinished rulings.
Judges with backlogs can be removed from cases, which has happened once.
Earlier this year, Justice David Watt released a decision that had been on hold seven months, a case about a natural gas explosion that killed seven at a west Toronto plaza.
Watt seemed to have worked hard on the writing, and that’s what set people talking.
His formerly fluid prose had given way to sentence fragments — staccato bursts that would feel at home in a Mickey Spillane crime novel.
“Explosions damage and destroy things,” he wrote.
“Sometimes, their victims are people. Like here. An explosion damaged and destroyed several buildings. Hurt some people too. And killed others. This explosion was preventable, if only. . .”
Many judges and lawyers didn’t like it, with some complaining privately he should be reported to the judicial council.
“So disrespectful to the litigants.”
“Seven people died.”
Watt’s sequel was a murder appeal known as R. v. Flores.
“They met in a bar in London,” he began. “Melvin Flores and Cindy MacDonald. Soon, they became lovers.”
“Early one morning in June 2006, Melvin Flores closed the book on his relationship with Cindy MacDonald. With a butcher knife embedded in Cindy’s back. Fifty-three blunt force injuries.”
Raymond, who knows Watt, wasn’t offended or surprised.
“David loves detective stories,” he said.
But many felt it was in poor taste because Watt appeared to be having fun writing about a tragedy.
It wasn’t the first example of colourful judicial writing. In fact, Watt was following in the path of none other than U.S. Chief Justice John Roberts in a dissenting 2008 opinion on police arrest powers.
“North Philly. May 4, 2001,” Roberts began. “Officer Sean Devlin, narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighbourhood? Tough as a three dollar steak.”
In Canada, Master Michael Funduk, a judicial officer with Alberta’s Court of Queen’s Bench, entrenched his reputation for entertaining judgments with a one-liner a 1989 ruling in a construction dispute. Funduk was explaining he had no authority to overturn an earlier decision by a judge, who was higher up the ladder.
“The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.”
Then there was Justice Joe Quinn. Before retiring from Superior Court in Hamilton last year, Quinn offered up these words about a couple locked in a volatile custody dispute.
“Paging Dr. Freud. Paging Dr. Freud,” he opened. “This is yet another case that reveals the ineffectiveness of family court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention.”
Some judges worry they should be exuding “gravitas” and won’t do that if they write engagingly, said Raymond.
That’s not true, he says, but mistakes can happen.
“Once it has that quality of, ‘Look Ma, I’m writing,’ then it’s crossing the line.”
“They just need to back down a bit.”
Just as their writing voice projects a certain tone, a judge’s speaking voice and mannerisms can shape public perceptions of the court system.
For Justice Joseph Bovard, it was his “resting face.”
The hardened expression he wore in court made him appear stern and slightly upset, Bovard discovered during an educational program about the physical dimensions of “judicial communication.”
The programs bring judges together with instructors such as Berry and veteran Canadian stage actress Kate Trotter, of Little Mosque on the Prairie. With their colleagues assessing their performance from the sidelines, judges write and deliver judgments verbally in fictitious cases.
Some involve highly charged scenarios such as the sentencing of a sex offender while outraged community members sit and watch.
“The courtroom is a very comfortable place for us,” says Justice Katherine McLeod of the Ontario Court of Justice in Brampton. “You sometimes forget that everybody is watching you. So it’s not a good idea to scratch your nose or roll your eyes.”
Bovard, who presides at old city hall, says the programs are valuable because judges normally get no feedback.
“It’s not a big kumbaya moment or anything,” he said. “But . . . in real life, nobody is going to tell you, ‘Judge Bovard, you mumble too much,’ or ‘Did you know you were looking around at the ceiling when counsel were talking?’”
Bovard has tried to look less foreboding and notices his court runs more smoothly.
“Before, if I got into a fight with some motorist on the way to work and been in a huff about it, I’d just throw my robes on and go into court.”
Now “before I go into court, I do a quick mental check. ‘Okay, How am I feeling? Did I get stuck in traffic today? Am I projecting a frustrated and angry mood?’
“If the answer is yes, then I kind of say, ‘Okay, Just relax. Go in. And be positive.’ ”
That new sense of awareness is starting to hit judges in other countries. Many now come to Canada to attend the programs or fly the experts there.
The message, it seems, is universal. There’s a narrative unfolding in the courtroom.
“The courses,” said Kiteley, “have really driven home to judges that we have a story to tell.”
Five Writers You (Probably) Didn’t Know
They doodle, consume lots of tea and surround themselves with sentimental objects. Judges change lives with the words they put to paper, but we know little about them or how they work. Here’s a rare peek behind the scenes:
  When Justice Adele Kent writes decisions she’s often sipping South African Kwazulu tea purchased online and sitting on the chair used by her father, Parker Kent, when he was associate editor of the Calgary Herald. A judge on Alberta’s Court of Queen’s Bench, Kent’s high-profile cases include the 2008 trial of Jeremy Steinke, convicted of killing his 12-year-old girlfriend’s parents and 8-year-old brother. Storytelling could be in her blood; Kent’s four siblings were journalists, including “scud stud” Arthur Kent and federal environment minister Peter Kent.
  Justice George Strathy of the Superior Court of Justice, considered one of the court’s finest writers, oversees class action cases in Toronto. He works in his courthouse office, beneath a portrait by Norval Morrisseau. His ruling on access to the cockpit voice recorder from the Air France plane that crashed at Pearson airport in 2005 captured the harrowing drama: “As the aircraft crossed the “threshold” of the runway, the rain intensified and there were numerous lightning strikes. The first officer wrestled with the controls to keep the massive Airbus on course . . . the CVR was like an electronic fly on the cockpit wall.”
  Justice Katherine McLeod of the Ontario Court of Justice in Brampton uses a desk that once belonged to her daughter and a chair discovered hanging from the ceiling of an antique shop and recovered for $35. Her cases run the gamut, from shady tax preparers to terrible industrial accidents. While some judges plunge into writing decisions as soon as a trial is over, McLeod often likes to think about them while walking her dog or cooking dinner. “Very often at the end of the day I’m beat and I don’t want to have anything more in my brain. I let it marinate.”
  “On a rainy autumn Saturday in 1994, five hunters of the Buffalo River Dene Nation boarded a DeHavilland single Otter which carried them, their canoe and their hopes for the fall moose hunt from Buffalo Narrows.” So began a ruling by Justice Jeremy Nightingale on hunting rights. All judgments begin with courtroom note-taking and Nightingale, a Saskatchewan provincial court judge, has devised his own shorthand; he doodles a crown for the prosecution and an upside down triangle for the defence. He writes surrounded by two pictures of his wife, Brenda, in Waterton Lakes National Park and paddling in the Rockies.
  Justice Gary Trotter writes on a glass desk in his Toronto waterfront condo, sometimes emails paragraphs to himself via BlackBerry and drinks coffee with artificial sweetener. In his former life as a Crown attorney and law professor, Trotter wrote books on bail and sentencing. He enjoys novelist John Irving’s wit. While some judges put their law clerks to work proofreading decisions, Trotter enlists his secretary, Cathy Lanni.
Manuscript Makeover
Judgment-writing programs encourage judges to adopt a more reader-friendly style. Here’s a “before and after” example from writing instructor Jim Raymond.
BEFORE: “This is the Applicant’s application for judicial review of the decision of the Minister of National Revenue pursuant to subsection 220 (3.1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended (the “Act”), denying the waiver of penalties and interest otherwise payable under the Act for the 1993 to 1996 taxation years, inclusive.”
AFTER: “John Robertson is a lawyer who ran into tax problems when he left his partnership in 1996. Mr. Robertson could have elected to defer his unbilled hours to his new law practice, but instead he reported them as taxable. He then failed to pay the tax due.”
The Secret Language of Judgments
Judges aspire to clear decisions, but sometimes being obtuse is more polite. Here are euphemisms that crop up regularly in court decisions:
“I would not give effect to this ground of appeal.” Translation: You are dead wrong.
“The defendant advances a number of arguments. I find it necessary to deal with only one.” Translation: The other arguments were really stupid.
“Despite Ms. Smith’s able argument . . . ” Translation: Ms. Smith is about to lose the case.

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