Last week I attended the 13th Annual Administrative Law, Labour and Employment Law Conferenceput on by the Canadian Bar Association here in Ottawa. Justice Thomas Cromwell of the Supreme Court was interviewed by Pierre Moreauand gave an interesting overview of his career.
Justice Cromwell also discussed the challenges of access to justice and touched on the work of the Action Committee on Access to Justice in Civil and Family Matters,which he chairs. He talked about the need for change, and used the old lightbulb joke to illuminate his point: “how many lawyers does it take to change a light bulb? Change?”.
As we all know, it is important that change be supported from the top and that leaders lead by example. There is no doubt that the solutions to access to justice issues will require systemic change and concerted action by many players. But is there anything that individual judges and adjudicators can do to improve access to justice?
Lord Neuberger, President of The Supreme Court recently addressed this issue in the first annual BAILII lecture.(BAILII is the British sister to CANLII.)
He talked about the necessity of reasons for decisions speaking clearly to the general public and to self-represented litigants. He made the point that the rule of law requires it.
… every Judgment should be sufficiently well-written to enable interested and reasonably intelligent non-lawyers to understand who the parties were, what the case was about, what the disputed issues were, what decision the judge reached, and why that decision was reached. Non-lawyers may not be able to grasp the finer details of the legal issues, because such understanding often can only come from many years of legal education and practice. They should however be able to understand what the case was about, even if they are unable to appreciate all the intricacies of the more abstruse legal principles.
…if we are to maintain public confidence in the justice system, judges must make their Judgments as accessible as possible, particularly to members of the public and litigants-in-person. The steps to increased clarity are not difficult, albeit ingrained habit may take some effort to break. By rendering our Judgements as clear, as accessible, and as comprehensible, as possible we place that which is of value in them in sharper focus: rather than diminishing our Judgments, it would enhance them.
His suggestions for achieving this are modest:
• use a short summary at the start of a judgement, similar to a headnote.
• better guidance to the structure and contents of longer judgments (a clear framework, sometimes with a table of contents, a roadmap, at the beginning, and appropriate headings or signposts, throughout).
• a more rigorous approach to cutting the length of judgments.
He notes that “brevity is a virtue, but, like all virtues, it should not be taken to excess”. However decision-makers should “weed out the otiose”.
We should, for instance, remove unnecessary displays of learning, or what the Lord Chief Justice, Lord Judge, recalls his history teacher marking on his essay, APK, anxious parade of knowledge.
Of course, many adjudicators and judges have received decision writing training that emphasizes these principles. It is, however, always good to keep these modest proposals in mind as one writes a decision.
