For most of my career as a decision-writer I have been fortunate to have had the services of a copy editor. The Public Service Labour Relations Board has professional copy editors on staff but many tribunals do not. Many tribunals rely on a review by legal counsel. A review of any document by a second set of eyes is always a good practice, but a good copy editor can make it more readable, better structured and more consistent. And a good proofreader can find those annoying typos that are never picked up by spell check. (Try a CanLII search of “pubic” and you’ll be surprised at the number of errors that will come up, including in the style of cause. Another common error is “casual” versus “causal” and a CanLII search will reveal a mixture of the two spellings in a number of decisions).
A small confession: my first career was as a copy editor and proofreader. I therefore appreciate the skill and effort involved in both roles.
Not all decision writers are convinced of the benefit of professional editors and proofreaders. Chief Justice Roberts of the US Supreme Court was interviewed in 2007 by Bryan Garner and the interview was published in 2010 by the Scribes Journal of Legal Writing
Do you think that it would be wise for more law firms to hire professional editors and proofreaders?
JGR: Well, I’d worry a little bit about a disconnect between substance and the writing. I think it’s hard to have somebody come in and say, “I’m good at writing; let me see what you’ve got, and I’ll change it,” because writing is a reflection of the underlying substance. You can’t have somebody come in and just sort of gloss over it and make it better, because they’re going to give it back to somebody who’s going to say, “Well, that might read better, but that’s not what I meant, or you don’t quite have the right point there.” So that disconnect between the writing and the thought I think is a problem.
The irony, of course, is that the Supreme Court’s healthcare decision contained perhaps the biggest editing error of 2012. As noted by a few commentators, summarized in this article, the dissent refers to the majority opinion (authored by CJ Roberts) as “the dissent”. This led to speculation that Roberts switched sides during the drafting of the decision. As noted by Lawrence Solun, a Georgetown University law professor:
Language like this is highly suggestive of a majority opinion. The reference to the dissent and “we” strongly suggests that the “we” was a majority of the Court. This suggests that Justice Roberts switched his vote. There are other conceiveable explanations, but in my opinion, this evidence is very strong indeed.
A similar “typo” has been noted in Justice Clarence Thomas’ dissent.
A more detailed analysis of the language used in the decision has been done by Paul Campos, a professor of law at the University of Colorado. He points out that the decision would have been proofread by the justices’ clerks.
Professor Campos suggests that the error was an intentional effort by the conservative dissenters to breach deliberative secrecy. Of course, it could also be just an editing error not picked up by a professional copy editor.
Earlier in 2012, the US Supreme Court made another typo when it referred to the PLO as the Palestinian Liberation Organization rather than its correct name in English, the Palestine Liberation Organization (The Federal Court in Canada has also made the same mistake). As noted in the article:
At least three individuals involved in publishing the opinion made that error: Justice Sonia Sotomayor, who wrote the court’s opinion, Justice Stephen Breyer, who filed a concurrence, and the court’s reporter of decisions, Christine Fallon, who prepared the syllabus, all used Palestinian instead of Palestine. The seven other justices all saw the final opinion before adding their names, if regular procedures were followed, as would have dozens of law clerks and other functionaries before the opinion was printed and distributed to the public Wednesday morning.
When the court was advised of the error, a spokeswoman said it was a typographical error and would be corrected for the record. However, the US Supreme Court is not noted for correcting typographical errors on the record. The defendant in the notorious Dred Scott v. Sandford decision was John F.A. Sanford.
*this post has not been reviewed by a copy editor or proofreader. All errors are my own.