The increasing length of judgments

Editorial by Graham Taylor on Capital Letter

In the early ‘90s the then Chief Justice, Sir Thomas Eichelbaum, and the writer happened to step out of adjacent eateries onto Lambton Quay one lunchtime. We saw each other and ended up walking down the Quay together until I turned left into my Chambers, and he carried on to go into his.

As we walked, I said I had noticed that judgments were getting longer. I asked Sir Thomas if he knew why. His answer was typically forthright. “No.” But he did add that he found that he could say all he needed to say in a judgment within 10 pages. “Why couldn’t others?” it seemed, was the summation of his thoughts.

Ten-page judgments these days are seldom to be found outside ones on frequently arising issues, procedural or factual, with settled law.

The question is one that the writer has thought on frequently over the thirtyish years since then. In that time, the writer has published a million or more words, written scores of tribunal decisions and drafted a High Court judgment.

The explanation for longer judgments reflects changes in all the following, doubtless incomplete, and interlocking list:

The raw material involved:

·??????access to information

·??????complexity of the law

Time availability:

·??????lack of judgment-writing time

·??????writing concisely is time consuming

·??????writing fulsomely is faster

·??????effects of dictating judgments

Distrust of those in authority:

·??????explaining why a party lost to their satisfaction (the “they didn’t listen to me” cry)

·??????prejudice is everywhere: best cover everything

Raw material

In the days of paper information, judgments published in the New Zealand Law Reports (High Court, Court of Appeal and Privy Council on appeal from New Zealand) and the Magistrates’ Court Reports (the predecessor of the District Court Reports) were readily available – to lawyers and Judges. Unreported judgments were not readily available.

Copies of High Court judgments from the Wellington Registry and its circuit registries were held in folders in the Law Society Library within the Wellington High Court complex. The situation for the Auckland and Christchurch circuits was similar. The judgments were held in alphabetical order of parties and not cross-indexed. So, a lawyer needed to know the existence of a judgment and at least the plaintiff/applicant for them to use the judgment in Court.

Then came Jack Hodder and The Capital Letter. He made those unreported judgments accessible – again to lawyers – by providing a brief summary and the identification information.

This development “changed the game”. Before October 1978, Judges frowned on citing unreported judgments. After all, if they were not reported they were not important. Gradually, the Judges came to accept unreported judgments. Then they came to expect them to be cited. Then lawyers came to comb the archive of unreported judgments so as not to overlook any possibly relevant judgment.

The internet and uploading of, with some exceptions, every judgment, enabled not only lawyers, but self-represented parties to find and cite every half-understood judgment that looked “helpful”.

And if a judgment is cited then the factors covered under the heading below of “Distrust of those in authority” pressured and still pressure Judges to deal with these judgments in their reasons.

Bingo! Sir Thomas’s shade is substituting 20 pages for the 10 in his mental summation – that translates to about 80 to 100 paragraphs.

Complex legislation

Yes, it is in “plain English” now. But the frequency of statutes with hundreds of sections, each of which is longer than they used to be, plus a bundle of schedules, affects judgment lengths. It just takes longer to read the statutes, longer to make sure that the internal connections are all understood, and longer to set that out in a judgment.

Double bingo! Sir Thomas’s shade is up to 40 pages: 150 to 200 paragraphs. Oops! Explaining complex legislation makes for longer paragraphs. Maybe 40 pages might contain only 80 paragraphs.

Time availability

Judges in both the High Court and Court of Appeal are under intense time pressure when writing judgments. There are expectations of issuing prompt judgments. Allowing judges, say, six weeks from completion of a hearing to issue a judgment on it, before they are being pressured to get it out, might sound fine. But four or five of those weeks have probably seen the judge in Court hearing other matters, each of which requires a judgment as well.

Here, the writer speaks from fifty-six years’ experience since completing his first publication. It takes two to three times longer to write concisely than to write fulsomely or, as some others might say pejoratively – “flabbily”. Therefore, Judges faced with pressure to get out judgments are almost forced to write fulsomely.

Time pressure means that Judges who are not touch typists tend to dictate judgments. Certainly, dictating means that a draft judgment emerges with comparatively little judicial time spent on writing it. But, in the writer’s experience, revising a draft typed from a Dictaphone will not convert a fulsome text into a concise one. The judge’s thinking is already on the screen. Time for the reorganising (sometimes rethinking) needed for conciseness is hard to find – because of the very time pressures already mentioned.

So, fulsome judgments rule.

Distrust of those in authority

All readers will be familiar with the cry of those who have not got what they wanted from a hearing, conference or whatever. “They didn’t listen to me!” Truth to tell, commonly, hopefully usually, they have been listened to. It is just that they were not agreed with.

“They didn’t listen to me” presupposes that those making the cry were faced with closed minds.

Rightly, being said to have been biased is something any judge hates. Taking care to explain carefully why a party is going to lose is the crucial part of writing a judgment. But that too takes time, more explanation, and therefore longer judgments.

Unfortunately, today more explanation, turning over every stone, and a longer judgment will not quieten the cry of not being listened to. The result is more judicial time taken up with applications to recall judgments and for judges to recuse themselves. This cuts down the already limited time to write concise judgments.

Conclusion

It seems that longer and longer judgments are the consequence of the society that we ourselves have built.

This article first appeared June 2 on industry publication Capital Letter www.capitalletter.co.nz . You can contact [email protected] for a free trial.