Paper presented during the Induction Training Course for newly-appointed Judges of the High Court of Kenya

 

By Mr. Justice Lee G. Muthoga

Judge, United Nations Mechanism for International Criminal Tribunals

 

Nairobi, September 19, 2012

Introduction

It is important to note at the outset that a Judge does not have to wait until all the evidence in a case has been had before he/she can start drafting the judgement. The process of drafting a judgement can be long and tedious and in order to make it less so, it is often necessary to start early and to have a care plan of action.

The purpose of this presentation is to discuss some general guidelines to be followed by Trial Court Judges in writing the judgements in cases before them. While each judge may have a particular way of handling cases, there are certain widely accepted practices that can greatly facilitate the judgment drafting process. The present contribution attempts to highlight some of them.

Judgement may be defined as the expression of the determination that a trier/finder of facts has come to on the application of the applicable/relevant law upon the facts proven to the required standard.

In other words, it may be stated as the statement of the conclusions that flow from the application of the governing law to the facts that the court/judge has found to be proved to the required standard.

It must therefore be expressed in a language that communicates; accurately and clearly, those conclusions and the reasons supporting them.

Where it is written, it must be written in a simple, clear and logical prose that persuades the immediate parties, (especially the losing party) to accept that it has been fairly heard and that the court/judge has come to a determination in a manner it/he was entitled to, even if he, (the losing party), is unable to agree with those conclusions.

In order to draft a good judgement and arrive at a reasonable conclusion, it is important to:

1. Establish a logical and coherent judgement outline;
2. Develop a good mastery of the factual issues to be resolved;
3. Conduct a thorough analysis of the evidence presented in light of the applicable law and;
4. Properly articulate the reasoning behind the final judgement.

I. THE OUTLINE

A good judgement, like any well-written document should have clearly identifiable parts arranged in a logical sequence. By breaking up the trial into several distinct parts and looking at the individual pieces rather than the whole, the Judge will be able, more easily, to draft each segment and thereafter to cobble the entire document seamlessly together.

The judgement outline should start by addressing any preliminary or threshold issues that must be resolved before the case can proceed on its merits. These typically involve such issues as service and notice to the defendant, fair trial rights, and other constitutional protections, etc.

Depending on the facts of the case and the issues involved, a Judge may choose to adopt either a chronological order or a thematic approach. The outline should also be based on the allegations and charges contained in the indictment and in any pre-trial briefs filed by the Prosecution. In a criminal trial it should reflect the issues, themes and events on which the Prosecution is seeking conviction. If necessary, it can also highlight issues raised by the Defence, such as an alibi or collateral issues.

In a civil trial, it should be based on the issues agreed or found needing to be determined.

The outline should also incorporate a segment for discussion of the applicable law. This is where the Judge shows that he or she is familiar with both the relevant statutory provisions and with the case law on legal precedents. Thereafter the Judge can proceed to apply the law to the facts of the case in order to arrive at a reasonable decision or judgement.

Trial judges should support their findings with sufficient reasons to show that they are not arbitrary and capricious. One should, whenever possible, cite specifics- for example; evidence from documents, consistencies or inconsistencies in testimony, conformity to or deviation from normal human behaviour, awareness of motives for telling the truth or for concealing it etc. In other words, judges can and should reveal exactly the sort of thought processes that they followed in reaching a verdict.

In many courts it may even be possible to establish a template for the judgement drafting outline that can be applied in most, if not all, cases. The Judge will then be able simply to plug in the details of the case as appropriate. For instance, a template with the following points can be used in most cases:

SAMPLE JUDGEMENT OUTLINE

Introduction

1.  Preliminary Issues
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 A

• 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 B

• 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 C

• 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 A

9. A Statement of the Law on Issue B

10. A Statement of the Law on Issue C

Deliberations

11. Applying the Law to the Facts

• These facts [In issue A, B or C]…
  • When viewed in the context of this section of the Constitution/ Law/ Regulation/ Contract/ Precedent/ Principle of equity [choose one]…

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

1. Finding of Guilt(or Acquittal)
2. Aggravating or Mitigating Circumstances
3. Sentence
4. Order, Decision/ Findings (Civil)

II. Factual Allegations

The task of drafting a judgement is not as easy as it sounds. It is not enough simply to copy-and­paste the statement or testimony of a witness. The Judge must analyse the evidence, determine what is and what is not important in the context of the case, make sense out of incoherent submissions, distil the salient points, summarise the relevant issues, and present all of it in a manner that is easily understood by a broad audience.

While hearing the evidence, the Judge should take notes and, where available, make annotations on the verbatim transcripts of the proceedings. Whenever possible the Judge should also prepare a brief summary of each witness’s testimony immediately after it is concluded. These will later serve as an aide–memoir, particularly in lengthy trials or in trials involving very many witnesses.

Once the presentation of evidence is over, the judge should proceed to draft the factual sections. There should be a separate segment for each factual allegation in the indictment/pleadings or, in criminal cases, for each crime in which the Defendant is directly implicated. For example, if the trial involves multiple instances of theft, assault or murder, each one should be handled separately, preferably in chronological order. If each one of these is done properly, in the end the Judge will have a very easy task stringing them together.

In civil cases the facts in support of every claim made should be separately analysed and listed. In a criminal case, a suggested approach is to first analyse the Prosecution’s submissions. This involves:

• Picking out the relevant passages of the indictment/charge
  • Combing through the written submissions contained in the pre-trial brief and final trial brief,
  • Reviewing the oral submissions made during closing arguments,
    • Examining all Prosecution exhibits,
    • Analysing the transcripts of the testimonies of all the Prosecution witnesses testifying to each charge,
    • Including their testimony on cross-examination,
    • And any prior (inconsistent) statements they may have made.

Thereafter an identical exercise will need to be conducted in respect of the Defence as well. In a civil case an adaptation of this analysis based on the pleadings filed by the parties is suggested.

In order for a judgement to inspire confidence and to earn the respect of both parties, the Judge must display a full mastery of the facts at issue in the case. It is therefore important to properly cite the pages of the transcripts or the parties’ briefs since the final judgement must be supported by the record.

III. Legal Conclusions

A good judgement must also reflect the Judge’s familiarity with the current state of the law. In a Common law jurisdiction, such as ours, this means the judgement should demonstrate the Judge’s knowledge of both the applicable statutory provisions and the relevant case law or legal precedents.

Depending on the facts of the case at bar, it may be necessary, for instance, to explore the relevant articles of the national constitution as well as the provisions of the enabling statute from which the Prosecution derives the authority to pursue the Defendant for an alleged crime.

Furthermore, if this is an issue that has been previously litigated, it might be worthwhile to examine and analyse the manner in which the highest court in the jurisdiction settled it previously. It is unnecessary for a trial Judge to examine a case as if it were in a vacuum and risk having the judgement overturned by a higher court for failure to follow stare decisi.

 

Such analysis would lay the proper foundation for the Judge’s findings in the case at bar. However, this part of the discussion should be narrowly tailored to the scope of the alleged crimes. Thus, if the Defendant is charged with murder, it is no use having a lengthy discussion on the legal definition of some other crime.

It is desirable for the Judge to anticipate complicated legal issues in advance and to research them thoroughly before embarking on the drafting of the legal conclusions. As noted earlier, sometimes the resolution of preliminary legal questions such as notice issues, fair trial arguments, or the alleged violation of constitutional rights, statutory limitations and compliance might make it unnecessary to consider the case on its merits. Therefore, it is of paramount importance that the legal conclusions be properly researched.

 

IV. Deliberations

After studying the facts and analysing the law, the Judge must proceed to correlate them to each other in a logical and coherent manner. The Judge must take all the relevant factors into consideration while omitting the tangential or extraneous ones. He must consider and decide all the credibility issues that arise and come to what can or cannot be believed and why. The Judge must ask himself what would be the most reasonable conclusion to arrive at after viewing the facts of the case in light of the applicable law.

In a nutshell, the Judge must decide if the facts of the case, when viewed in the context of the applicable section of the Constitution, law, regulation, contract, precedent, or principle of equity, would lead to the judgement he is about to pronounce.

It is often said that a well-written judgement is one that is likely to meet the approval of the losing party.

Crafting the Judgement

And now comes the difficult part. Putting it together in a clear, logical, readable and organised sequence. This will frequently begin with the writing of an introduction.

An effective introduction provides two things: a synopsis of the facts and a brief statement of the issues.

The introduction should provide the necessary context for understanding the analysis that follows. There is no need of cluttering the opening paragraph with more information than the reader needs at this point.

Although you, judges, are not obliged to make your writing interesting, doing so does have the effect of helping the reader to pay attention to the argument. While a judgement need not be interesting, a good one should be exciting. A good beginning makes the reader want to read

more.

Style

Here are some do’s and don’ts about style in judgement writing:

1. Write as much as possible in plain, simple English, very much as you would explain it to your next door neighbour who is not a lawyer.
2. Whenever you can express yourself in plain language, devoid of verbiage, repetition and technical terms, do so. Where possible avoid legalese and foreign language. Where, however, you use legitimate terms of art i.e. words or phrases that either cannot be easily translated because the original language triggers a doctrine that lawyers might not recognise by any other name e.g., “habeas corpus or estoppels”; these terms may be used. Avoid the use of legal jargon whenever possible.
3. Avoid block quotations. It is not good practice to quote large chunks of text from books or other judgements. Paraphrase whenever you can. This enables the reader to appreciate your mastery of the concept described. Where of course, the use of words in a text is in dispute or where the language of the contract is in dispute, such quotations are inevitable.

Where reference is merely to the substance of the passage avoid quoting it verbatim. If necessary, make reference to it in the footnote.

1. Whenever possible, avoid quoting the charge verbatim unless the wording of the charge is in dispute or provides the invoked defence.
2. Where, however, you are considering whether or not the charge is defective, it may be necessary to state it in full.
3. Write short sentences whenever it is possible to communicate your full idea in such a sentence.

7. Watch your grammar and punctuation. Avoid `sheng’ or slang in your judgement writing.

 

Writing the Body

Let the body of your judgement flow like you would tell a story to your next door neighbour, who is not a lawyer, but is concerned to know the outcome of the dispute. Tell WHO DID WHAT TO WHOM – not the legal consequences thereof or the various interlocutrices and hearings held thereafter.

 

Except in the simplest of cases, every trial will involve the determination of a number of issues. These will have been agreed between the parties or settled by the Judge/court. Each of the issues will require to be carefully analysed so as to bring out the Judge’s/court’s decision thereon.

There will be issues of fact and issues of law. There will be facts that are agreed and facts that are in dispute. There may also be matters that the court/judge may take judicial notice of. These need not be proved but need to be clearly stipulated in the judgement.

You are all trail judges. You will need to bear in mind that your judgement may be subjected to appellate review, it is therefore important that you set out your consideration of each issue in a way that will convince the appellate court that you did not misapprehend the issues that needed to be proved or the evidence that was brought to prove them. This will ensure that the court above yours, or the press, or the losing party, will not miss the essence of your analysis.

Process of Analysis of an Issue

Judgement is about telling the losing party why it lost. It is best to approach it by explaining its position because it is the party most interested to know WHY it did not win and also most likely to appeal. The winning party would care less how it won and is most unlikely to appeal.

In analysing an issue or a motion, the approach most recommended is to:

State the Losing Party’s Position (LOPP) and then state the Flaw in the Losing Party’s Position (FLOPP) and then state your conclusion or the court’s finding thereon.

Writing an Ending

In the very simple cases it will be enough to merely announce the result and the orders that flow from your determination.

In a judgement of any complexity, however, an ending should provide an opportunity to revisit the argument, but without repeating the reasons and using different language. A good ending should resemble a good beginning which, in turn, often resembles a good head note.

It is often a poor ending to end a judgement, as many judges do with: “For the foregoing reasons…”. An effective conclusion should summarise those foregoing reasons in a nutshell and in plain English, without repeating citations and references that are already included in the body.

Footnotes

In order to keep the length of the judgement within reasonable limits and to incorporate lengthy documents, textbooks passages or cases that may have been consulted or relied upon, it is often necessary to include footnotes to the judgement. These should be carefully selected and referenced.

The practise of including lengthy footnotes that are not essential to the understanding of the judgement should be deplicated.

Delivery

The manner of delivery of judgement is a matter for the Judge/court.

In lengthy judgement it may be unnecessary to read the entire judgement and a summary of the judgement bringing out the substance thereof will suffice. It is important, however, to indicate in such summary that the full judgement not the summary of judgement is authoritative.

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