Justice Frankfurter of the United States Supreme Court once asserted that “of the many mansions in the house of literature law is not one”. Max Barrett, a High Court judge in Ireland, does not agree and calls in aid the views of a number of great writers. 

Literary and philosophical authorities ranging from Aristotle to DH Lawrence are recruited in support of arguments about clarity, honesty, coherence and ethos. Thomas de Quincey, Joseph Conrad, WH Auden, Guy de Maupassant, and EM Forster are among those whose animadversions on structure and style are applied from literary to judicial writing. Great Legal Writing – lessons from literature may be regarded as a companion volume to Barrett’s Art and Craft of Judgment Writing,  which we reviewed here.

“A good judgment, like a good poem, is wisdom and delight combined” he suggests, citing Shelley’s A Defence of Poetry.

As well as these familiar names, Barrett digs out some more obscure literary figures as being worthy of study for what they have to say about good writing. One of these is the prolific Victorian era novelists and essayist Sir Walter Besant (1836-1901), who contended that in fiction “the human dimension is critical” and that to write in an engaging manner helps to command sympathy. (Nowadays, in the law, the name of Besant is probably more likely to be associated with a famous Victorian obscenity trial concerning a book of advice on family planning.) 

Each of these authors is given a chapter to him- or in one case (Virginia Woolf) her self. However, with the possible exception of the last, none of them could be regarded as modern, let alone contemporary. One wonders what Joyce, Hemingway or Sartre might have contributed to the subject, let alone Borges, Robbe-Grillet, or BS Johnson. Perhaps they will furnish another volume? 

Cited examples

Among the judgments cited by way of example for the excellence of their writing is the one by Chief Justice Cardozo in the classic American case on tortious liability, Palsgraf v Long Island Railroad Co (1928) 248 NY 339, 162, which Barrett quotes with the interpolated observations of another commentator,  Professor Frank Cooper, author of Effective Legal Writing (1953):

“Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. [What difference does it make where she was going? … [D]oes its inclusion add some element of human interest, and pique the curiosity?] A train stopped at the station, bound for another place. Two men ran forward to catch it. [Here, a bit of suspense …] One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady, as if about to fall. [Here is a scene that has been pictured hundreds of times in cartoons and motion pictures …] A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged and fell upon the rails. It was a package of small size, about 15 inches long, and was covered by a newspaper. In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents. [Why didn’t he simply say it was a package of fireworks?] The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.”

Barrett adds his own comments to those of Cooper, noting in addition the “brilliant shift of focus” from the pushing and shoving at one of of the platform, to the unexpected consequences on the weighing scales at the other, and the sudden introduction of a solitary woman injured thereby, who turns out to be the plaintiff. “Cardozo has pitched his judgment in such a way as to emphasise the human dimension and thus comand interest and sympathy in the manner contemplated by Besant.” 

Avoid intentional humour

While judgments can be engaging and even thrilling, there is a danger in trying to make them funny, says Barrett, citing by way of example the case of El Farargy v El Farargy [2007] EWCA Civ 1149 at [30]. In that case Ward LJ, who was not above making the odd joke himself, acknowledged the general consensus that “jokes are a bad thing” in judgments, particularly “when they are bad jokes”. It is worth quoting his remarks more fully:

“When I said at the beginning of the judgment that I found this case embarrassing, no little part of my embarrassment comes from my belief that the injection of a little humour lightens the load of high emotion that so often attends litigation and I am the very last judge to criticise laughter in court. I fully appreciate the conventional view that jokes are a bad thing. Of course they are when they are bad jokes – and I am sure I have myself often erred and committed that heinous judicial sin. Singer J certainly erred in this case. These, I regret to say, were not just bad jokes: they were thoroughly bad jokes.”

In that case, the trial judge’s lighthearted colourful language was felt to be mocking and disparaging of the affronted litigant. (Such a judgment may be seen as a more permanent version of the lighthearted banter between bench and bar that so often alienates lay litigants.) In one American case quoted later on, a concurring judge in the Court of Appeals of Georgia in Russell v The State (1988)  188 Ga App 167 makes clear that his concurrence, with a majority opinion containing a number of witty comments about the litigants, is confined to the legal judgment. “However, I cannot join the majority opinion because I do not believe that humor has a place in an opinion which resolves legal issues affecting the rights, obligations, and, in this case, the liberty of citizens.” 

This may sound a bit po-faced but it is worth remembering that a judgment is not an opportunity for a bored judge to amuse themselves or the reader at the expense of fee-paying or liberty-risking litigants. 

Show don’t tell

A classic bit of writing advice is: “show, don’t tell”. I confess I would have liked to see more examples of judgments drawing on the literary qualities said to inform their composition, and less summarising of the views of creative writers, most of whom seemed to be saying much the same thing.

Not surprisingly quite a few novelists had something to say about novel writing; nor, to be honest, do they differ all that much in what they say. Most of them come up with some combination of virtues including clarity, sincerity, honesty, realism, etc. Comments like the following only serve to deepen one’s appetite for examples of judgments demonstrating such virtues: 

“In the 19th century, the English bench comprised a remarkable body, peppered with judges whose judgments form an enduring legacy of consummate literary excellence. Likewise, the English bench of the 20th century saw various judges of stylistic brilliance. To the fore among them were Lords Atkin, Denning and Macmillan. Of Lord Atkin, it has been said that his judgments possessed ‘a flair for … vivid example and … a gift for aphorism and metaphor’. And Lord Macmillan’s writing style evinced the literary form of a greatly well-read man. But when it comes to writing ability and memorability, they and all other English judges of all centuries past are eclipsed by Lord Denning, perhaps the most significant of England’s 20th-century judges. Denning’s prose, praised for its felicity and grace and its literary quality is so simple in its presentation that its very simplicity can blind one to the intellectual vigour which it undoubtedly took to arrive at so plain but so perfect an end. In terms of readability, his remarkable corpus of judgments place Denning in a very select group of judges (Justice Holmes of the US Supreme Court is another) whose judgments can still be taken down and read for pleasure today.”

When one was eventually quoted, I was glad to see a Denning example that, for once, didn’t involve bluebells in Kent or cricket on a summer’s day.

Encounters with transcendence?

Whether the reader of a judgment will ever be “infected by the author’s condition of soul” in Tolstoy’s words seems doubtful, let alone that it will amount to an “encounter with transcendence” as another critic put it. But some judgments have no doubt been very well written and are, in consequence, a joy to read. 

The same may be true of headnotes, but for the writer of law reports the primary virtues must be clarity, accuracy and, subject to those, concision. The main fault of bad headnotes is not their lack of style but a failure to omit redundant matter. More could be said on this topic, but perhaps that can await a better occasion. (I merely observe that at least one contemporary headnote writer from ICLR is now a successful novelist, also reviewed here. See also: Dickens Did It First: Writing and the Law.)

There are other types of legal writing where, again, style is not important and may be distracting. Contracts and other transactional documents need to focus on their purpose. They are a classic example of where form follows function. That said, one of the abiding sins of much transactional legal writing is a redundant use of what might be termed inelegant variation – or tautological prolixity. In no way, shape or form should we tolerate, put up with, accommodate, acquiesce to, countenance or be accepting of such redundant duplication, pointless equivalence, purposeless word-rotage, et bloody cetera you get the picture. 

Given its functional nature, there is something a tad Pooteresque about Barrett’s claims for legal writing as a branch of fine literature. Discussing Trollope (Anthony, not Joanna), he notes: 

“In Trollope’s day, there was a continued perception that fiction was a low form of literature. People in their millions read novels but, as Trollope observes, there was a prejudice which denied them their due. In a similar vein, there continues to be a general reluctance to recognise the artistry in much legal writing.”

I’m not sure it’s so much a reluctance to recognise artistry, as simply that it has never occurred to most readers to think about it in such terms. No doubt your humble mail order shopping catalogue copy writer thinks the same of their craft and sullen art, as does the poet of the public service announcement. (“See it. Say it. Sorted.”) 

Nevertheless, one of the virtues of judgments as literature is their value as a “mine of romance”, or at any rate social history. This emerges from an essay written in 1889 on “The Romance of the Law Reports”, which Barrett cites:

“In these musty and dusty volumes lies great wealth of legend and tradition. They faithfully and graphically record all the changes and chances of this mortal life, and probably in no literature are the permutations and combinations of existence more thoroughly worked out. The heights and depths of human vice and folly are here wonderfully illustrated.”

The author is anonymous so I suspect may well have been a law reporter. The observation reflects the humility of the chronicler down the ages, but also ignores the fact that until recently judgments were selected for preservation solely by reference to their value as precedents, and much that was toiled over and earnestly crafted by judges, whatever its literary value, was allowed to fall by the wayside. Left, as it were, on the slush pile of history. Perhaps that is one reason why we might not expect to find in the average judgment the literary virtues with which Barrett thinks they ought to be infused. But as with his previous book, this volume repays study by anyone engaged in legal writing, however remote might be their claims or ambitions of greatness.

Great Legal Writing: Lessons from Literature, by Max Barrett (Globe Law and Business, £75)

 

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