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You can’t write a good statement if you have not made a sound decision
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Make It Make Sense
What is the job?
•To decide•To communicate
•You can’t write a good statement if you have not made a sound decision
Good decisions must be communicated
effectively
Effective communication is the bedrock of the legal
process
Equal Treatment Bench Book, published by the Judicial Studies Board
Making good decisions involves:
• Sound preparation
• Recognising issues
• Weighing all the relevant evidence
• Good fact-finding
• And
Authority
Obstacles
•lack of clarity as to the facts•conflicts of evidence
We need 2 things
•Clarity of thought
•Clarity of expression
Is there a house style?
The CLASSIC JUDICIAL STYLE
–Issues–Evidence –Findings of Fact–Law–Submissions–Reasons
CHEAP AND CHEERFUL
•Findings of Fact•(Decision) •Reasons
•Which would I take to a desert island?
FINDINGS OF FACT
You cannot apply the law without knowing the facts of the case
YOU HAVE TO DECIDE THE FACTS FIRST
A JOINT PROCESS OF DECISION MAKING
•You have to be sure you all agree the facts of the case before you reach a joint decision.
In agreeing the facts, telling the story, you are forced jointly to address the conflicts in the evidence
•She says she can walk 0 metres without severe discomfort
•The EMP says she can walk 200 metres without severe discomfort
•The GP says “pain and difficulty” on walking
What’s the story?
• She used to walk to the surgery – 5 mins away
• Hasn’t for the last year• Still goes to the neighbour- 2 doors down. • Sits in the car while her son does her
shopping• Moved bedroom downstairs – can’t do
stairs. • Pain management difficult
She is virtually unable to walk
Why?• Wholly credible account• Consistent with diagnosis, treatment,
range of activity• EMP thought she was still walking to
the surgery.
• You cannot apply the law without knowing the facts of the case• You have to be sure you all agree the
facts before you reach a joint decision. • In agreeing the facts, telling the
story, you are forced jointly to address the conflicts in the evidence
And• Agreeing the facts properly will
get your statement half written even before you give the decision.
AndIn a complex case, your draft findings, prepared in chronological order, are an essential tool for your analysis and your questioning
What are facts?
This is not a stupid question
What are facts? Simple, descriptive
statements
Circumstances Incidents Details Information Events Items Factors Particulars Features Specifics History
•The Actualité
Reality ▼
Factuality▼
Certainty
▼Truth
What’s the missing link?
INFERENCE •To deduce•To derive from what has gone before
•To arrive at a logical conclusion
The art of drawing a conclusion from
statements of fact
Summary – or Conclusion of Fact
• She has made substantial adaptations and compromises because of pain on walking
Inference
• Any walking beyond a few yards is only achieved with severe discomfort.
Conclusion – applying the law
She is virtually unable to walk
Every step I take is agony
Every Step I take is Agony• Can’t now walk to the surgery as he used. • Takes the dogs to the park, but sits once there.• The entrance is 4 – 500 metres away. • He likes browsing round garden centres• He meets his children at The Mall, and they go
to the games shop.
Summary or Conclusion of Fact
He is still relatively mobile in spite of discomfort
Inference
His pain and discomfort do not amount to severe discomfort on walking very limited distances
Conclusion applying the law
He is not virtually unable to walk.
Facts are descriptive.
Conclusions are in the terms of the regulations.
What goes where?
Findings of Fact - Facts - in chronological order
Reasons - Conclusions and why you reached them
• Inferences and explanations of how you reached your facts?
How do you write the Reasons?
How you found the facts
How you applied the law to the facts
Reasons• Address each issue• Subheadings• Logical analysis• Lead up to each conclusion • Always reflect the statutory test in the
conclusion
• Refer to submissions
• Include reference to or explanation of the law where you judge it necessary – in complex cases, to address misunderstandings
• Check you have explained why the next higher test or descriptor is not met
Don’t forget• If you are not awarding at a rate that
was previously awarded, you must explain why. • If it is a majority decision, you must
give the minority reasons. • If you remove an award, you must
give reasons.
Include procedural points -
• Why you proceeded on the papers without directing an oral hearing.
• Why you proceeded in absence
Paragraph Numbers
What about the evidence?
Leave it out
Do NOT Recite evidence
• Refer to it in explaining what you preferred and what you rejected. That may involve a short summary or illustration.
• Reciting evidence i) confuses the reader ii) misleads you
Dealing with inconsistency
Demonstrate that it is a significant inability or refusal
to give an accurate account of the facts with two or three
clear illustrations.
WHAT WENT OUT WITH THE BATHWATER?
Evidence - the essentials • What documents did the tribunal see? • Who did the tribunal hear from?
Issues The legal and factual questions the Tribunal has to
answer • Safe to omit on a new claim… • But don’t forget them…
1 Was the claim for DLA received within a reasonable longer period after the form was requested on 01 08 12, so that the date of claim is not 1 11 12 but 01 08 12?
2 Does she meet the tests for this benefit?3 If so, did she meet the tests for this benefit
any earlier than the date of her accident on 26 07 12 (qualifying period)?
Secretary of State
Supersession
Structured Reasons • Preliminary / procedural points/issues• Evidence – why appellant evidence/HCP report is
source of some concern• Jurisdiction – dates within/ supersession• Benefit headings• Extra tests for children• Failure to continue award on renewal• Duration of award• Minority reasons• Post decision changes
Remember
Findings of Fact First Then apply the law to the facts
Use Templates
Create a library. Use them to refer to the law, to explain the law, to set out some background particulars
Never Use Templates • Never ever use them to deal with the
appellant as an individual. • It is the very essence of judgecraft
that you deal with each person as an individual.
No Formulas
• If HCP reports are independent, objective and
supported by clinical findings,
we don’t need Judges
Explain why evidence is preferred or rejected by
content, not source
Blaming the claimant
It is the routine refuge of the weak Judge to bolster the statement with:
• unexplained references to inconsistency or exaggeration – or relying on trivial examples
• Unsupported assertions that someone does something because they choose to not because they need to
• Presenting bizarre explanations instead of the simple one – “it hurts”
Go back to the FACTS
Support your conclusions from your facts
ORAL REASONS ?
• Giving reasons on the day? Do – you can simply explain why the claimant did not get the award or the higher descriptor they want
• Giving reasons on the decision notice? Do – it matters particularly where the claimant has won to show why
STYLE
1 Headings 2 Paragraph numbers3 Short, clear paragraphs4 One topic at a time 5 Language
Language
The Obstacles
•Complex area of law, •Difficult language, •Formality imposed by statutory tests,•Tradition
We Say
You have won your appeal
We Write
The respondent has failed to show grounds to
supersede the decision
Traditional legal mode of expression
•formal language, •complex sentence structure, •densely presented
These are the things Judges do:
–We proceed–We peruse–We consider–We direct ourselves –We are assisted–We are precluded
While claimants…. Submit Indicate Assert, or Contend
Who are we writing for?
Functional literacy levels
One in six people in the UK struggle to
read and write
(The Literacy Trust)
Deprivation, unemployment and low literacy levels make the
UK one of the most poverty-stricken countries among developed nations
(UN: Human Development Indices: a statistical update 2008)
Plain English Campaign
What is Plain English?
It is a message, written with the reader in mind and with the right tone of voice, that is clear and concise.
Impact on the Judicial System
Family Procedure Rules :
• “This Part contains the court’s powers to …..”• “Where to Start Proceedings”• “What the Court Officer must do….”
Upper Tribunal Decisions
“You have the right of appeal to the Upper Tribunal but only on a point of law and not on issues of fact. So the right of appeal to the Upper Tribunal is not a second opportunity to dispute the facts.”
Simple, direct explanations, direct
language, “you” and “I”
Plain Simple English is the order of the
day.
Use familiar language Appellant Mrs Smith
Does not seek recovery Is not asking for the money back
Mrs Smith now contends Mrs Smith says
She subsequently informed She later told
She maintains the basis of that appeal
She is still saying the same thing
Elected to have her appeal dealt with on the papers
Did not ask to come to a hearing
Did not avail herself of the opportunity for an oral hearing
Did not ask to come to a hearing
“An adequate amount of fluids”
Enough to drink
“The HCP opined”
The nurse who saw her says
If you were trying to explain across the table, would you say
- “the full particulars whereof” “In the light of the foregoing”
“In these premises”
Plain EnglishThe main advantages of plain English are:
• It is faster to write• It is faster to read• You get your message across more
often, more easily and in a friendlier way
And their guidance is:
• Keep your words and sentences short• Prefer active verbs• Use “you” and “we”• Use words that are appropriate for the
reader – every day English• Use lists • Use clear, helpful headings
NOT USWe have to show we have applied the
statutory tests:
“By virtue of the provisions of section 12(8)(b) of the Social Security Act 1998, the Tribunal may
not consider circumstances not obtaining at the date of the decision, namely 11th October 2012”
YES US
You can safely simplify so long as it is clear you have held applied the right tests: without severe discomfort, frequent throughout the day, etc
“The Tribunal has to look at how things were when this decision was made. That is 11 October 2012. The Tribunal has to decide if that was the right decision. The Tribunal can’t look at changes since then.”
You can add in the statutory reference:
“That is what the law says: section 12(8)(b) of the Social Security Act 1998.”
“It is also important to remember that the tribunal had to deal with your situation as it was at the date of the Secretary of State’s original decision, 11/10/12. So events which have happened since then could not affect the tribunal’s decision.” (Judge Wikeley)
Attention with bodily functions
“It may help to explain that this is a benefit about help to live independently. There are strict tests, which are set out more fully below. But this is about is how much help someone needs, in person, to manage things that other people do for themselves.”
Double negatives In C67/98 the Commissioner states,
“The provision… for the exclusion of familiar routes is not an exclusion of familiar areas. It is only the ability to walk on familiar routes which is to be excluded. If a claimant can walk about on a route or routes within a familiar area, even though any particular route is not familiar to him, the ability to walk on that route is not to be excluded.”
?
I have provided a translation
“This is about getting to places. It is about ways of getting to places that are not familiar – that is, routes that you are not used to. We don’t look at routes that you are familiar with. We can look at unfamiliar routes even in familiar areas.”
YES US - A REMINDER • Keep your words short • Keep your sentences short• Prefer active verbs• Use “you” and “we”• Use words that are right for the reader –
every day English• Use lists • Use clear, helpful headings
Style and Layout • Space it well • Clear headings• Short sentences –15 – 20 words per sentence makes for clear
writing• One idea per sentence• Paragraph
One topic per paragraph• Punctuate
Absolute Professionalism
These are errors of law Capital letter abusePoxy punctuationParagraph number gloopsInconsistent formatting Spelling mistakes
Lookalikes (affect/effect)
Which law?
The law that says The Judge who is careless
about presentation is careless about the evidence and the reasoning
Or
Do you really want the Supreme Court reading a statement with spelling mistakes?
Or
Why would you expect respect for your fairness and thoroughness if you can’t get the appellant’s name right?
Presentation counts
Read it through • She will go for short walks for fibromyalgia
up and down the road.• She could occasionally do a roast. The Health
Care Assessor awarded no points for this. • She was able to cope with change. She had a
friendly nature. • She needed almost constant support to walk
anywhere unless she was triggered or spooked.
Reading Stamina
How many people read past the first page?
• Put your findings of fact first• Keep findings of fact separate from
reasons• Help the appellant find the description
of themselves• If you have got it right, they will see
themselves in what you write
Summarise
“To sum it up, given the tests we have to apply, we decided Mr Smith’s pain and disability were not so severe that he needed the help that this benefit is paid for. His difficulties are very genuine, but he does not qualify for DLA.”
Clutter and Junk
Cut it out.
The DWP’s facts of the appeal were set out in Section 4
Mr A appealed against the decision of 23 11 10 and requested an oral hearing.
LawThis was set out in the appeal submissions and the Welfare Reform Act 2007, Employment and Support Allowance Regulations 2008, Social Security Act 1998 and Social Security and Child Support (Decisions and Appeals) Regulations 1999 as amended.
I will get overturned
If you are worried, put the formal stuff in but not so it distracts from the message.
It is not a choice :
“Court documents and judicial decisions shall be drafted in an accessible, simple and clear language.”
Paragraph 16 of the Magna Carta for Judges, Issued by the Consultative Council for European Judges, adopted in November 2010
“Judges must be able to explain their reasons for their decisions in accessible language so that the important parts can be read and understood by laypeople, and not just by other lawyers.”
Lady Justice Arden, in her recent lecture Magna Carta and the Judges
Lay persons may not understand court jargon or technical terms, such as ‘questionnaires’, ‘directions’ and ‘disclosure ’.• keep language as simple as possible • give clear explanations when
required.
Equal Treatment Bench Book
Remember:
If you write it clearly, the Upper Tribunal will
understand
If you write for the Upper Tribunal,
the appellant won‘t
Make it make sense
You know it makes sense
Martha Street June 2014
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