Writing Reasons: A Handbook for Judges, 4th ed.

• Author: Kleefeld, John C.
• Position: Book review

Review of Edward Berry, Writing Reasons: A Handbook for Judges, 4th ed (Toronto: LexisNexis, 2015), pp 158. ISBN: 978-0-43347964-2.

Edward Berry's Writing Reasons, (1) though aimed at judges who provide written reasons for their decisions, deserves a wider audience. With this version, it may get just that. Originally published in 1998 and self-published for the first three editions, this delightful and highly instructive handbook has now been published by LexisNexis. While I lament the loss of some of the third edition's form--its cover, its elegant typesetting, its clever Shakespearean epitaphs leading off each chapter (it still has epitaphs, but now mostly from other sources)--I laud the substantive changes and the decision to leave the book's basic format intact. That format is one in which the author--an emeritus professor of English and long-time leader of judicial writing workshops--goes from macrocosm to microcosm, continually imparting wisdom along the way and asking readers to test how well they've imbibed it through end-of-chapter exercises and answer keys.

Berry's first macrocosmic point is context. It is the driving theme of the first three chapters--"Context First", "Introductions", and "Organization"--and of much of the rest of the book. The notion that information needs context isn't hard to understand, says Berry, yet it is often forgotten for two general reasons. The first is that, in working through a problem, we tend to write for ourselves rather than our readers. The second reason, closely related to the first, is that we assume reader expertise or knowledge that doesn't actually exist. Journalists are aware of both tendencies and work hard to overcome them. Two further reasons for forgetting context apply to judicial writing, says Berry: legal training and the traditions of legal communication. The facts-law-application-conclusion sequence that law schools attempt to drill into students may lend itself well to legal precision; as a presentation method, though, Berry asserts that it often fails to respond to readers' needs. This is even truer when considering that the audience for judgments is not only lawyers, but parties to a case (at least one of whom is often now "self-represented" (2)) and, indeed, the "public at large". (3) Such readers need more context so that they can better understand the legal concepts and terminology and anticipate how and why judgments unfold in the way that they do.

Example being better than precept, I'll provide one. Consider the following introduction to a judgment:

This is an appeal from a judgment of the Court of Appeal for Ontario, 2011 ONCA 482, 107 OR (3d) 9, affirming a decision of the Ontario Superior Court of Justice per Himel J, 2011 ONSC 1500, 105 OR (3d) 761, granting the respondent's application for an order declaring that life support could not be removed from her husband without her consent, and that any challenge to her refusal to consent must be brought before Ontario's Consent and Capacity Board pursuant to the Health Care Consent Act, 1996, SO 1996, c 2, Sch A ("HCCA"). For the following reasons, we affirm the decisions below and dismiss the appeal. In fact, this is a hypothetical introduction to an actual Supreme Court of Canada decision. I provide the real introduction below, but let me first defend my hypothetical one, then critique it a la Berry.

In some ways, this introduction is not only defensible, but representative of many introductions to appellate judgments. The style and structure is especially common in the U.S. federal courts, but also in other jurisdictions. In a few sentences (just two here), the court explains the procedural history of the case and says how it will dispose of it. The key issues, though not labelled as such in this example, can be inferred: they have to do with whether a patient's spouse must consent before the patient's life support is removed and with whether a refusal to consent must be challenged before a special tribunal or board acting under a provincial statute.

However, this compaction is achieved at the cost of clarity, especially for the lay reader. Legal readers--lawyers, judges, law clerks, and law students slogging through the task of briefing cases--might appreciate having the procedural context handed to them at the outset in highly crafted form. But for parties and public-at-large readers, the important thing is substantive context, largely missing here. The questions "Why should I read this?" and "What does this mean?" go unanswered. And this isn't the only problem. The first sentence, at ninety-five words, is longer than the average sentence by a factor of almost five, making it nightmarish to read. (4) It is clogged with citations--fewer, actually, than many legal sentences--and uses jargon like "respondent" and "application". The passive voice has also crept in--we learn that life support "could not be removed"--and we are left to wonder: removed by whom? These things further detract from the sentence's readability and even its accountability. The second sentence raises a more difficult question: should an introduction announce the decision as well as the issues? Berry says that if readers need a road map, "why not announce the final destination in advance?" (5) But he then considers whether, and in which cases, this is a good or a bad idea. For example, he notes that doing so might induce a reader to stop reading or treat the reasons that follow as "mere rationalizations, afterthoughts produced to justify a verdict arrived at by mere prejudice." (6) Ultimately, he eschews a single or...