The Art & Craft of judgment Writing – A Primer for Common Law Judges, by Max Barrett (Globe Law & Business, £95) is a fascinating analysis of a topic which is more kaleidoscopic than perhaps first meets the eye.

Methodically considering the purpose, audience, structure and style of judgments both within the UK and across a range of other common law jurisdictions, this book is not just an exposition of great judgments – it is written for the benefit of judges who wish to develop their judgment writing, and in doing so spends a considerable amount of time exploring academic theories of good judgment writing and applying them to individual judgments. However, although judges are the stated audience, I am sure it will be of as much interest to lawyers as to judges themselves.

Unsurprisingly, a large proportion of the judgments that feature are appellate decisions from multi-judge courts. As such, the peculiar dynamics and features of this collegiate way of working, the consideration of the how various judges have approached concurring and dissenting judgments may be of direct use to only a comparative few judges, but the discussion will nonetheless hold both interest and utility for the first instance judge, as well as the lawyers who must read, interpret and deploy these judgments before other tribunals.

Judicial individualism

The Preface by Sir Robin Jacob talks up the flourishing of judicial individualism that the common law tradition permits and fosters. That is captured within the book – I chuckled at the nine (or more) categories of Denning ‘openers’ – but for all the attention paid to idiosyncratic judges and stand-out judgments, the banging drum that runs throughout the book is the broad commonality of structure across a wide range of judgments, which is analysed with reference to academic studies on the topic.

As a reader struggling to find five minutes here and there for extra-curricular reading, and who therefore took an inordinately long time to reach the final chapter, I very much enjoyed the opportunity this book gave me for dipping in and out of a wide range of judgments across a wide span of geography and time, absorbing their literary qualities and individual styles without getting bogged down into reading the whole thing (as one would typically do when carrying out legal research or analysis). I found myself turning down the corners of pages so I could better find again some little quote from a judgment that I rather liked, and which had current potency or particular relevance to my field of work or areas of interest. So, for example, Holmes (a US Judge) on changing his mind between one judgment and the next ‘I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday’.

Perhaps because of my somewhat stop-start approach to reading this book, I found the author’s insistence on applying the academic schemas of judgment structure throughout all chapters a little distracting by the end – although the chapter on judgment structure is at pains to analyse the range of structure types, I was left with the overwhelming sense that most judgments have a broadly very similar shopping list of components (facts, law, analysis, conclusion) mainly sequenced in one of several common orders, dependent on the demands of the case (That is perhaps more my failing than that of the author). What was far more interesting to me was the use of language and tone, the way in which personal style and voice came through notwithstanding the use of a common structure, and the way in which judgments navigated disagreement or tension between judges within one court or across time. Another feature that came through is the variation as to how judges have seen their role and the limits of it – to develop the law, to admonish, to prompt government to initiate reform, to correct error, to provide justice…

Justice and transparency

As someone with a prior interest in access to justice and transparency of decision making in a jurisdiction whose work is largely conducted behind closed doors (the Family Court of England & Wales), the treatment of questions about what a judgment is, what it is for and who its audiences are were of particular interest to me – others will be attracted to different aspects of the book. In his ‘Ten Commandments’, Lord Bingham draws a distinction between first instance and appellate judgments, suggesting that it is only really the latter that have multiple audiences. Whilst the parties and their advisers (and possibly the appeal court) must always be the primary audience, I wonder whether that distinction really remains as clear as it once was…

One discrete chapter looks at the need for simplicity in judgments concerning children, families and those with language barriers. The author recommends appending a simplified ‘plain language’ note or child friendly summary to such judgments, concluding that ‘there seems to be no ethical or legal reason why a judgment cannot be written in a manner that meets Lord Bingham’s gold standard of brevity, clarity and simplicity’ and opining that ‘in truth, the case for simplification applies generally to all forms of judgment – not least, though not only because, when it comes to the wider public, complex judgments require deconstruction and ‘when law is [so] transmitted…distortions are bound to occur’.

This chapter does provide some useful pointers for judges wishing to adopt the practice: I particularly liked the observation that ‘While no one wants a judge who emotes from the bench, there is nothing wrong with a judge who writes empathetically’. That said, the chapter stands in somewhat splendid isolation in comparison to the rest of the book. It would have been lovely to have seen some examples of child friendly judgments or summaries extracted and discussed as in other chapters and topic areas.

The chapter on ex-tempore judgments is interesting, too. Such judgments are, of necessity, very common in the fast paced world of family law, and the exploration of the limits of amendment of later-provided transcripts of a previously delivered ex-tempore judgment is topical.

I thought this was an excellent book and recommend it to other legal professionals, not just judges. I think it would be particularly useful for newly appointed judges who wish to complement their core basic training by thinking more deeply about the production of judgments, if they can overcome the inevitable sense of overwhelm at the many illustrious examples of wordsmithery and magisterial judgecraft on display within its pages.

Lucy Reed KC is a children specialist barrister practising from London and Bristol. She is the author of various legal books and a prolific legal commentator. Lucy is a Recorder.