Judgment Writing for Trial Court

“A judgment is an official and authentic decision of a court upon the respective right and claims of the parties to an action or suit therein litigated and submitted to the determination of the court. It is the decision of the court resolving the dispute between parties and determining their rights and obligations. It is a conclusion of law upon facts as found or admitted by parties. It is a conclusion given by the court upon matters submitted to it. It is the application of the law to the pleadings and the facts as they appear from the evidence in the case as they are found by the court or jury or admitted by the parties or as deemed to exist upon default”.

Before writing a judgment one must understand that for whom you are writing the judgment.

Categories of Judges and their judgments [Johna`s dream]

  1. Philosopher Judge
  2. Scientist Judge
  3. Advocate Judge
  4. Activist judge
  5. Errant judge

Basic Guidelines [ Twelve Comandments]

  1. nature of jurisdiction
  2. avoid latin and latin maxims
  3. gender neutrality
  4. plain english
  5.  brevity-Clarity-Simplicity-Compactness
  6. logical development [Facts must be moved through the legal framework]
  7. do not repeat
  8. do not engage in irrelevant facts
  9. analyse admissible evidence and exhibits
  10. fix the burden and discharge of it
  11. use a standard dictionary
  12. learn how to google

The Language of the Judgment in India [ Making a laughing Buddha]

Article 345 of the Constitution empowers the Legislature of a State, to adopt, by law anyone or more of the languages in use in the State. The proviso of Article 345 stipulates that until the Legislature of the State otherwise provided by law, the English Language should continue to be used for those official purposes within the State for which it was being used immediately before the commencement of the Constitution.

  1. English
  2. Hindi
  3. Regional

Follow a style of drafting and then develop your own style in the above language.

Follow High Court Rules for subordinate courts.

Drafting a Judgment [A Serpentine Coil or Raban`s ladder to heaven] 

Brief facts of the Case

1. Preliminary Issues[if any]
2. Summary of Prosecution/Plaintiff s Case
3. Summary of Defence/Defendant’s Case
4. Issues to be determined

Evidence and Factual Findings

5. Prosecution/Plaintiff s Allegation on Issue no1

Prosecution evidence in support of the allegation
Defence evidence on the allegation
The Judge’s evaluation of the evidence

6. Prosecution/Plaintiff s Allegation on Issue no2

Prosecution/Plaintiff s evidence in support of the allegation
Defence evidence on the allegation
The Judge’s evaluation of the evidence

7. Prosecution/Plaintiff s Allegation on Issue no3

Prosecution evidence in support of the allegation
Defence evidence on the allegation
The Judge’s evaluation of the evidence
Applicable Law

8. A Statement of the Law on Issue no1

Statutory Law
Case Law

Submission of the Counsel

9. A Statement of the Law on Issue 2

Statutory Law
Case Law

Submission of the Counsel

10. A Statement of the Law on Issue 3

Statutory Law
Case Law

Notes on Argument`s Acceptability

11. Balancing the Law to the Facts

12. Entitlement of Relief

  • preponderance of probabilities
  • beyond reasonable doubt

Logically lead to this conclusion [judgment] Judgement and Sentence (Criminal)

Finding of Guilt(or Acquittal)

Aggravating or Mitigating Circumstances and balancing factors

Sentence

Order, Decision/ Findings (Civil) [ With clear-cut instruction]

 The readers of a judgment 

  1. the litigants
  2. law enforcement agencies
  3. legal professionals
  4. academics
  5. appeal judge

BULLET 2Remember that writing Judgment is different from writing an interlocutory Order.

Practice: “Law does not stand still. It moves continually. Once this is recognized, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect thinking of the structure as a whole building for society a system of law which is strong, durable and just. It is on his work that civilized society itself depends.” Lord Denning.

Statutory Interpretation: The following passage from Statutory Interpretation by Justice G.P. Singh (Eighth Edition, 2001 at Pp. 81-82) is an appropriate guide to the case at hand:

“No word”, says Professor H.A. Smith “has an absolute meaning, for no words can be defined in vacuo, or without reference to some context”. According to Sutherland there is a “basic fallacy” in saying “that words have meaning in and of themselves”, and “reference to the abstract meaning of words”, states Craies, “if there be any such thing, is of little value in interpreting statutes”. . . .in determining the meaning of any word or phrase in a statute the first question to be asked is. . . .”what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the Legislature, that it is proper to look for some other possible meaning of the word or phrase”. The context, as already seen, in the construction of statutes, means the statute as a whole, the previous state of the law, other statutes in pari materia the general scope of the statute and the mischief that was intended to remedy.”

Mandatory vs Directory: In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of the provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the Courts to get the real intention of the legislature by carefully attending the whole scope of the provision to be construed. The key to the opening of every law is the reason and spirit of the law, it is the animus impotentia, the intention of the lawmaker expressed in the law itself; taken as a whole”. (See Bratt vs. Bratt (1826) 3 Addams 210 at p. 216).

The act of the God circumstances: The maxim of law impotentia exusat legem is intimately connected with another maxim of law lex non-cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him”. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom’s Legal Maxims 10th Edition at pp. 1962-63 and Craies on Statute Law 6th Ed. p. 268).

Natural Justice Rule: Justice Chinnappa Reddy in National Textile Workers’ Union and Ors. v. P.R. Ramakrishnan and Ors. [(1983) 1 SCC 228]  “Can courts say natural justice need not be observed by them as they know how to render justice without observing natural justice? It will surely be a travesty of justice to deny natural justice on the ground that courts know better. There is a peculiar and surprising misconception of natural justice, in some quarters, that it is, exclusively, a principle of administrative law. It is not. It is first a universal principle and, therefore, a rule of administrative law. It is that part of the judicial procedure which is imported into the administrative process because of its universality. “It is of the essence of most systems of justice-certainly of the Anglo-Saxon System-that in litigation both sides of a dispute must be heard before decision. ‘Audi Alteram Partem’ was the aphorism of St. Augustine which was adopted by the courts at a time when Latin Maxims were fashionable”. Audi Alteram Partem is as much a principle of African, as it is of English legal procedure; a popular Yoruba saying is: ‘wicked and iniquitous is he who decides a case upon the testimony of only one party to it’ (T.O. Elias : The Nature of African Customary Law). Courts even more than administrators must observe natural justice.”

Lawline

A REASONED JUDGMENT TO BE DELIVERED

What are ‘reasons’ for a decision? How are they to be expressed? How are they to be communicated to the person who may be aggrieved by the decision? When the decision affects a particular person, the reasons for that decision have to be stated. That decision and the reasons for it are dependent on the facts which are relevant to arrive at the decision in question. The decision has to be expressed in a manner which communicates it to the recipient. If it is adverse to the recipient, the decision has to contain the reasons for such adverse decision. The content of a decision is to be coupled with the reasons for that decision, when it is communicated to a person who is likely to be adversely affected by the process of decision making which has resulted in such a decision. Hence, the question whether a decision which is adverse to a person is supported by reasons and whether the decision and the reasons therefor have been effectively communicated to the person who would be affected by the decision are primarily, and fundamentally, a question of fact. There can be no cut and dried jurisprudential formula which can be applied to all instances of decision-making process and communication of the reasons and the decision that would affect a person. Hence, the factual matrix of a decision; the reasons for that decision; the manner in which those reasons and the conclusion have been expressed and communicated to the person who may be affected by such decision; are essentially; facts-centric, issues-centric and situation-centric.[ (2016) 1 KHC 381 : (2016) 1 KLT 74 -KERALA HIGH COURT -KANTARARU MOHANARU Vs. TRAVANCORE DEVASWOM BOARD AND OTHERS -W.P. (C) No. 24645 of 2015 -Decided on : 14-01-2016]

Lawline

Supreme Court Cases

Alok Kumar Roy v Dr SN Sarma & Anr AIR 1968 SC 453 
Amina Ahmed Dossa & Ors v St of Maharashtra AIR 2001 SC 656 
Balraj Taneja & Anr v Sunil Madan & Anr AIR 1999 SC 3381 
Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684 
Lattu Mahto Vs State of Bihar 2008 8 SCC 395
RC Sharma v UOI & Ors AIR 1976 SC 2037
Surendra Singh & Ors v St of UP AIR 1954 SC 194
Swaran Lata Ghosh v HK Banerjee & Ors AIR 1969 SC 1167

Red

§Thank you Jitendra [Advocate Howrah Court ] for pushing me to write this article.