Judgment Writing for Trial Court

JUDGMENT WRITING

“To any of us sitting in judgment on others, whether as judge or magistrate, judgment writing often feels like the bane of our existence but it is, of course, the ultimate reason for our existence. In The Eumenides, the Greek playwright Aeschylus wrote in 458 B.C. :

“Fair trial, fair judgment …
Evidence which issued clear as day …
… Quench your anger; let not indignation reign
Pestilence on our soil, corroding every seed
‘Til the whole land is sterile desert…
…Calm this black and swelling wrath.”

“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”.

Clarity of Thought :

Clarity of thought leads to proper reasoning and proper reasoning is the foundation of a just and fair decision. In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120 (NIRC), the Court went to the extent of observing that ‘Failure to give reasons amounts to denial of justice’. Reasons are really linchpin to administration of justice. They are the link between the mind of the decision-taker and the controversy in question. To justify our conclusion, reasons are essential. Absence of reasoning would render the judicial order liable to interference by the higher court. Reasons are the soul of the decision and its absence would render the order open to judicial chastism. The consistent judicial opinion is that every order determining rights of the parties in a Court of law ought not to be recorded without supportive reasons. Issuing reasoned order is not only beneficial to the higher courts but is even of great utility for providing public understanding of law and imposing self-discipline in the Judge as their discretion is controlled by well-established norms. The contention raised before us that absence of reasoning in the impugned order would render the order liable to be set aside, particularly, in face of the fact that the learned Judge found merit in the writ petition and issued rule, therefore, needs to be accepted. We have already noticed that orders even at interlocutory stages may not be as detailed as judgments but should be supported by reason howsoever briefly stated. Absence of reasoning is impermissible in judicial pronouncement. It cannot be disputed that the order in question substantially affect the rights of the parties. There is an award in favour of the workmen and the management had prayed for stay of the operation of the award. The Court has to consider such a plea keeping in view the provisions of Section 17-B of the Industrial Disputes Act, where such a prayer is neither impermissible nor improper. The contentions raised by the parties in support of their respective claims are expected to be dealt with by reasoned orders. We are not intentionally expressing any opinion on the merits of the contentions alleged to have been raised by respective parties before the learned single Judge. Suffice it to note that the impugned order is silent in this regard. According to the learned Counsel appearing for the appellant, various contentions were raised in support of the reliefs claimed but all apparently, have found no favour with the learned Judge and that too for no reasons, as is demonstrated from the order impugned in the present appeals.”

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 [Who shall read the judgment]

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

Remember 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.”

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]

The reason is the heartbeat of every conclusion:

In the absence of reasons the order becomes lifeless. Non recording of reasons renders the order to be violative of principles of natural justice. Reasons ensures transparency and fairness in decision making. It enables litigant to know reasons for acceptance or rejection of his prayer. It is statutory requirement of natural justice. Reasons are really linchpin to administration of justice. It is link between the mind of the decision taker and the controversy in question. Thus failure to give reasons amounts to denial of justice.

Dealing with citations :

If a Tribunal feels that a decision cited by any party has no application to the facts of the case under consideration then the Tribunal has full jurisdiction to distinguish the said decision thereby not considering appropriate in the facts of that case to place any reliance on such decision. However, the reasons as to why the decision relied on by any party has no application and which are those distinguishing features due to which the said decision can have no application have to be specifically stated in the order. Such distinction is permissible in law because counsel may in his wisdom place reliance on several decisions in support of his submissions.

It is for the Court/Tribunal to decide as to why a particular decision has no application to the facts of a case under consideration. Indeed, here lies the application of mind of the author of decision to analytically discuss the cases on facts involved in the case cited by a party and then compare the same with the facts of the case before the Tribunal and then record the note of dissent. In doing this exercise, which is an integral part of judgment writing for recording a finding one way or other, the Court/Tribunal does not comment upon the ratio decidendi of the said decision nor holds that it does not lay down correct principle of law. On the other hand, the Tribunal accepts the decision as laying down the correct principle of law but respectfully records its dissent due to dissimilarity in facts of both the cases.

Last Word: Judgments are very often too long and verbose. Therefore, they are vague and result in various interpretations. In order to write a long Judgment, a Judge takes a long time too, what is worse, a lot of time is spent in correcting the judgment A judgment, it needs to be emphasised, is not a medium to display the learning of the Judge, on points which have only incidental bearing. The function of a Judge, while deciding a case, is not the same as that of a Research scholar writing thesis on a particular branch of law. Concise narration of facts and brevity of reasonings in the judgment are always appreciated. A judgment, therefore, should set out the salient facts of the case, deal with the points of controversy, appraise the relevant evidence, discuss the questions of law which arise and incorporate the findings of the court on the various issues. The judgment should conclude by stating in precise language the actual relief to be granted to the plaintiff. The Presiding Officers of the subordinate courts have to condition themselves to write brief judgments with a view to avoid prolixity and verbosity. The brevity in the Judgment, should not, however, be used as a justification for not dealing with inconvenient contentions. The stress on brief Judgments should certainly not provide a cover for mental lethargy nor an alibi for intellectual dishonesty. A balance has. therefore, to be kept in the matter.

Criminal Court Practice : 

Andhra Pradesh Criminal rules of Practice and Circular Orders, 1990

“Rule 66 – How witness shall be referred to Witnesses shall be referred by their names or ranks as P.W.s., or D.Ws., and if the witnesses are not examined, but cited in the chargesheet, they should be referred by their names and not by numbers allotted to them in the charge-sheet.”

Every judgment must mandatorily have a preface showing the name of the parties and an appendix showing the list of Prosecutions Witnesses, Prosecution Exhibits, Defence Witnesses, Defence Exhibits, Court witnesses, Court Exhibits and Material Objects. Kindly see inter alia the Relevant rules in the Kerala Criminal Rules of Practice, 1982.

“Rule 132 – Judgment to contain certain particulars.- The Judgment in original decision shall, apart from the particulars prescribed by Section 354 of the Code also contain a statement in Tabular Form giving the following particulars, namely:-

Note. – (1) Date of complaint in column 9 shall be the date of the filing of the charge-sheet in respect of case instituted on police report and the date of filing of the complaint in respect of other case.

(2) Date of apprehension in column 10 shall be the date of arrest.

(3) Date of commencement of trial in column 13 shall be :

(a) In summons cases, the date on which the particulars of the offence are stated to the accused under section 251 of the Code.

(b) In warrant cases instituted on police report, the date on which the documents under section 207 of the Code are furnished to the accused and the Magistrate satisfied himself of the same under section 238 of the Code.

(c) In other warrant cases, when the recording of evidence is commenced under section 244 of the Code.

(d) In Sessions trials, when the charge is read out and explained to the accused under section 228 of the Code.

“Rule 134 – List of witnesses etc. to be Appended to Judgement.

There shall be appended to every judgment a list of the witnesses examined by the prosecution and for the defence and by the Court and also a list of exhibits and material objects marked.”

 Once numbers are assigned to the accused, witnesses and exhibits, they be referred to, subsequently in the proceedings and in the judgments with the help of such numbers only. The practice of referring to the names of the accused/witnesses and documents descriptively in the proceedings paper and judgments creates a lot of confusion. Whenever there is need to refer to them by name their rank as Accused/Witness must be shown in brackets.

Repetition of pleadings, evidence, and arguments in the judgments and orders of the Trial Court, Appellate and Revisional Courts be avoided. Repetition of facts, evidence, and contentions before lower Courts make the judgments cumbersome, and takes away the precious time of the Court unnecessarily. The Appellate/Revisional Court judgment/order is the continuation of the lower court judgment and must ideally start with ” in this appeal/revision, the impugned judgment is assailed on the following grounds” or “the points that arise for consideration in this appeal/revision are”. This does not of course, take away the option/jurisdiction of the Appellate/Revisional Courts to re-narrate facts and contentions if they be inadequately or insufficiently narrated in the judgment. Mechanical re narration to be avoided at any rate.

In every case file, a judgment folder to be maintained, and the first para in the appellate/revisional judgment to be numbered as the next paragraph after the last para in the impugned judgment. This would cater to a better culture of judgment writing saving precious court time.

The Trial Courts must be mandatorily obliged to specify in the Judgment the period of set off under Section 428 Cr.P.C specifying date and not leave it to be resolved later by jail authorities or successor presiding officers. The Judgements and the consequent warrant of committal must specify the period of set off clearly.

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

Hon’ble Apex Court in case of Board of Trustees of Martyrs Memorial Trust and Another Vs. Union of India (UOI) and Others, also appears to be relevant for the purpose of deciding the present case, where in paragraph 21 it is held that:–

Brevity in judgment writing has not lost its virtue. AH long judgments or orders are not great nor brief orders are always bad. What is required of any judicial decision is due application of mind, clarity of reasoning and focused consideration. A slipshod consideration or cryptic order or decision without due reflection on the issues raised in a matter may render such decision unsustainable. Hasty adjudication must be avoided. Each and every matter that comes to the court must be examined with the seriousness it deserves.

In the case of Mc Dermott International Inc. v. Burn Standard Co. Ltd. and Ors., (2006) SLT 345, the Supreme Court clarified the rationality behind providing of reasons and stated the principle as follows:-

“… Reason is a ground or motive for a belief or a course of action, a statement in justification or explanation of belief or action. It is in this sense that the award must state reasons for the amount awarded. The rationale of the requirement of reasons is that reasons assure that the arbitrator has not acted capriciously. Reasons reveal the grounds on which the Arbitrator reached the conclusion which adversely affects the interests of a party. The contractual stipulation of reasons means, as held in Poyser and Mills’ Arbitration in Re, Rs. proper adequate reasons’. Such reasons shall not only be intelligible but shall be a reason connected with the case which the Court can see is proper. Contradictory reasons are equal to lack of reasons….”

It will be useful to refer the words of Justice Roslyn Atkinson, Supreme Court of Queensland, at AIJA Conference at Brisbane, on September 13, 2002, in relation to Judgment Writing. Describing that some judgment could be complex, in distinction to routine judgments, where one requires deeper thoughts, and the other could be disposed of easily but in either cases, reasons they must have. While speaking about purpose of the judgment, he said,

“The first matter to consider is the purpose of the judgment. To my mind there are four purposes for any judgment that is written: –

(1) to clarify your own thoughts;

(2) to explain your 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.”Clarity of thought leads to proper reasoning and proper reasoning is the foundation of a just and fair decision.

REF:

1-Chief Justice Beverly McLachlin, ‘Legal Writing: Some Tools’, 2001 Alberta Law Review, 695.
2. Justice Michael Kirby, ‘On the Writing of Judgment Writing’ 64 Australian Law Journal, 1990, 691.
3. Sir Henry Gibbs, ‘Judgment Writing’, 67 Australian Law Journal, 1993, 494.
4. Sir Frank Kitto, ‘Why Write Judgment?’ 66 Australian Law Journal, 1993, 787.
5. Judge Gerald Lebovits, Alfiya Vasi, and Lisa Solomon, ‘Ethical Judicial Opinion Writing’, 21 Georgia Journal of Legal Ethics, 2008, 237.
6. Justice Roslyn Atkinson, ‘Judgment Writing’, speech.
7. Justice Linda Dessau and Judge Tom Wodak,  ‘A Matter of Judgment, Seven Steps to Clearer Judgment Writing’.
8. Lord Roger of Earlsferry, ‘The Form and Language of Judicial Opinion’, 118 Law Quarterly Review, 2002, 226.
9. Richard A Posner, Judges’ Writing Style (And do they Matter?), 62 Chicago Law Review, 1992, 1421.

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