Corps de l’article

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 à 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 formulaic answer to this question on the basis that judgment writing “involves not merely legal logic but psycho-logic.”[7]

Here, then, is the actual introductory paragraph to the case, Cuthbertson v. Rasouli:

This case presents us with a tragic yet increasingly common conflict. A patient is unconscious. He is on life support—support that may keep him alive for a very long time, given the resources of modern medicine. His physicians, who see no prospect of recovery and only a long progression of complications as his body deteriorates, wish to withdraw life support. His wife, believing that he would wish to be kept alive, opposes withdrawal of life support. How should the impasse be resolved?[8]

This paragraph, written by Chief Justice Beverley McLachlin, vividly exemplifies what Berry calls the focus first strategy for creating a context for details and reasons.[9] It is actually the first paragraph of a four-paragraph overview, so it can be thought of as an introduction to an introduction. To set the stage for a reader’s willingness to accept the reasons that follow (yes, Berry is unapologetic about the persuasive function of reasons for judgment), the Chief Justice cultivates a sympathetic, collaborative, or problem-solving tone, in contrast to my hypothetical version, which might be described as aloof, authoritative and legalistic. Notably, she does not announce the decision in the first paragraph, though she does so by the third one. The rest of the overview deals with the same things that my version addresses—the statute, the board, etc.—and while her treatment of them is more expansive, it provides just enough information to give the necessary context for understanding the case. And for wanting to read it.

After the first three chapters, Writing Reasons devotes Chapter 4 to “Conciseness”, which Berry distinguishes from brevity. Berry writes that “[b]revity is only about saving words; conciseness is about making every word count.”[10] Since clarity is the overarching goal, extra words can sometimes help, as with contextual sentences, transitional words or phrases, or occasional summaries. But wordiness is a problem in judgments, and it takes effort to achieve conciseness there as in any form of writing. “I would not have made this letter so long,” wrote Blaise Pascal, “but for not having had the time to make it shorter.”[11] Berry identifies three areas where judgments frequently need concision: evidence, party positions, and quotations. He has some suggestions here. Evidence, for example, rarely merits its own section, and if you do create one, you are likely to be tempted to fill it up, recounting testimony in a plodding, witness-by-witness fashion. Instead, says Berry, use issue-driven structures, which tend to discipline the presentation of evidence and align the necessary components of it with the issues to be decided. Creating sections that outline party positions can also be tempting; after all, this is how cases are presented to adjudicators. But they also encourage wordiness (and, I would add, conclusory reasoning or even insufficiency of reasons). Berry suggests that one remedy is to focus on the losing party: the reasons may often align with those of the winning party, in which case repeating that party’s position becomes unnecessary. Before using quotations, Berry suggests that we ask two questions: first, are the exact words essential; and second, would a paraphrase be less effective than the original. Berry has in mind quotations to authorities like cases and statutes, but his advice applies as well to other material, such as quoting from affidavit evidence and counsel submissions. Some quoted text, even in block form, can add vitality to a judgment, but large amounts can deaden it and even encourage ‘cut-and-paste’ writing and litigation about the sufficiency of reasons.[12] In any case, says Berry, block quotations should generally be introduced with a statement that either focuses the quotation or summarizes its point in the judge’s own words.

Chapters 5 to 8 of Writing Reasons—“Paragraphs”, “Sentences”, “Words”, and “Punctuation”—continue the macrocosmic-to-microcosmic approach, addressing such things as transitions and topic sentences; structure and length; balance; active versus passive voice; and the idiosyncrasies of commas, semicolons, colons, parentheses, and dashes. Berry manages to do this without seeming dogmatic and by using examples, recognizing that there are various ways of doing things. He might even approve of this paragraph. Though the first sentence is very long, it uses punctuation to create syntactical breaks; “em dashes”[13] to mark an interjection; semicolons to signal a list; and commas within one of the list items. It also attempts to follow the principle of “parallel structure” (the general format of my review is a chapter-by-chapter outline of the book).

Chapter 9, “Widening the Audience”, is one of my favourites. The section on prejudicial language, some of which can be quite unconscious, is especially good. Berry avoids a “checklist” of words that are likely to offend. This is in part because the common recommendations on such lists have already been absorbed into the language; more fundamentally, though, checklists invite us to substitute one word for another instead of searching for underlying principles that can be applied to sundry situations and withstand the test of time. Berry suggests the following principles or strategies: (i) invite parties to define their own identities (e.g., despite changing norms, “some women might prefer Mrs. to Ms.”[14]); (ii) mention a distinguishing characteristic only when it is pertinent, and show its pertinence immediately; (iii) avoid merging the person with the characteristic in a dehumanizing way (compare, e.g., “AIDS victim” to “a person with AIDS”[15]); (iv) if a racial or ethnic categorization is pertinent, prefer the specific to general (e.g., “a ‘Haida’ would probably prefer that designation to ‘Aboriginal person’”[16]) (and, I would counsel, avoid the absurdly vague “racialized person”[17]); (v) be wary of stereotypes, both explicit and implicit (“the appointment of Justice Janet Marshall will bring a refreshingly sympathetic face and nurturing demeanour to the bench”[18]); and (vi) “stay current and Canadian.”[19] If there is one way in which this chapter could be improved, I think it would be in providing techniques for gender-neutral writing that are neither awkward (‘s/he’) nor grammatically contested (‘a judge should choose their words carefully’).[20] In the meantime, one of the best resources for the legal writer on that subject is the British Columbia Law Institute’s short report on managing personal pronouns.[21]

In Chapter 10, “Developing a Personal Style,” Berry first addresses the antipathy that some legal readers might feel towards the word “style”. Substance is what matters, the argument goes, and brooding over style can interfere with substance—drawing attention to the judge instead of the parties and the issues to be decided. This argument, not entirely without merit, has recently led one commentator to frame a Supreme Court judge’s stylistic efforts as a form of “judicial arrogance”.[22] But as Berry notes, citing Benjamin Cardozo, form and substance are inseparable: “[t]he strength that is born of form and the feebleness that is born of the lack of form are in truth qualities of the substance.”[23] The advice to attend to style, then, becomes advice on how the manner of an argument may best support its matter. Berry provides four examples from different levels of Canadian courts to encourage this kind of reflective approach to style.

The last chapter, “Revising”, is in some ways the most important one. Berry gives some “simple advice” based on “sad experience”.[24] First, “[w]hen drafting, write to think; when editing, write to be read.”[25] Second, “[w]hen drafting, resist editing, especially at the micro-level.”[26] Simple to state, perhaps, but hard to put into practice. Berry provides a seven-step program to implement these two tips, starting with macro questions like how much information readers need to make sense of the reasons; how issues should be framed and analyzed; and micro considerations such as paragraph structures, sentence variations, word choice and tone.

I said at the outset that Writing Reasons deserves a wider audience. Administrative tribunal members are obvious candidates for that audience: from the point of view of sheer numbers alone, their decisions affect the day-to-day lives of many more people than decisions of courts, and Berry’s advice transposes well to the writing of administrative decisions. Berry also makes the case that judges who give mostly oral judgments can benefit from some of the ideas in the book, and provides advice specifically for them.[27] Lawyers who diligently craft written submissions would also do well to imagine themselves in the judge’s role and revise with that role in mind; Writing Reasons would be a good place to start. Finally, law schools, which traditionally have focused on other forms of legal writing—research memos, opinion letters, factums, pleadings, and essays—might want to consider the benefits of teaching judgment writing. Using the third edition of Writing Reasons, I did that for the first two years in an upper-year seminar course on the written judgment—and I have recently continued the practice with the fourth edition of Berry’s excellent book.