WHY ARE YOU TELLING ME ALL THIS?

The problem with communication is the illusion

that it has been accomplished.

George Bernard Shaw

SOAR Conference on Access to Justice

November 2014

Chief Justice McLachlin

Judgment writing at its simplest is an attempt to communicate…A judgment that does not communicate is a failed judgment, no matter how learned or gracefully phrased.

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Justice Binnie• Trial courts, where the essential

findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.

Why do we write reasons?

Tell the parties affected by the decision why the decision was made

Provide public accountability: justice is not only done, but is seen to be done

Permit effective appellate review “Sometimes it just won’t write”

To communicate you must know your audience

“The key to successful gardening is thinking like a plant”

It’s the same for judging

Whom do you write for?

Many audiences? My two important audiences

My next door neighbour The losing party: the most important

person in the courtroom is the losing party (Megarry)

Do you really think about your readers when you write?

What do all your readers want?

CLARITY “The sovereign virtue for the judge

is clearness” (Cardozo) Accessibility and clarity go hand in

hand

Focus of my talk

The two most important principles of clear and persuasive writing Context before details Point first

What are “context” and “point”?

CONTEXT: what should I look for and think about What the details are about Why the details matter What the are the issues to be decided

POINT: where are you heading Your finding of fact or credibility Your conclusion on an issue

The persuasive power of context and point first

Decision writing typically contains a lot of details

Readers will grasp the significance of these details only if they have a context for them

Principle: give the context before the details

Secondary principle: write point first

Writing clearly about complexity

Substantive clarity Clarity in your head

Cognitive clarity Clarity in your readers’ heads

Cognitive clarity Always context first Usually, but not always, point first

The goal of cognitive clarity: create smart readers

Make readers smart enough to grasp what they are about to read before they read it.

Context: what should I look for and think about?

A point: where are you heading? [A logical structure: have you

presented the information so that its form meshes with its substance?]

READERS WANT ALL THIS THROUGHOUT YOUR WRITING, NOT JUST AT THE BEGINNING

How do you make readers smart enough?

Cognitive science Readers absorb and retain detailed

information better when they first know why it matters and how it is relevant When they have a context (or

container) for it When they know the point of the

detail They read more efficiently

They read faster They retain and understand more

To determine whether an applicant’s right to be tried within a reasonable time has been infringed, I must take account of four factors: length of the delay, any waiver of the time period, reasons for the delay and prejudice to the accused….[CONTEXT]

Example: s. 11(b) of the Charter (Crown)

On the fourth factor, prejudice, I find that the accused suffered minimal prejudice from the delay. [POINT]

The accused did not lead any evidence of actual prejudice.

The accused’s liberty interests were marginally prejudiced. He was released on bail two days after being charged. His bail terms were not onerous, except for a curfew of 8:00 pm to 6:30 am. He never sought to vary or do away with this curfew.

The accused’s actions suggest that he did not want a speedy trial. Three times proceedings had to be adjourned because the accused did not appear in court…[DETAILS]

I therefore conclude that the accused’s motion under s.11(b) should be dismissed. [OVERALL POINT]

Context before details and point first

When you are about to dump a lot of details on your readers, first give the context and, if appropriate, the point of the detail

The combination of context and point first usually gives your readers the best chance of grasping detail

But:

Context first is mandatory Point first is discretionary

Example: from details to point last

The Report of 17 February 2007 contained an obvious error. Upon discovery of the error, the Minister withdrew the Report under Rule 5(2) of the ID Rules. The withdrawal occurred before any hearing took place or any evidence was received. The Federal Court of Appeal in M.C.I v. Sheremetov 2004 FCA 373 acknowledged that where no substantive evidence has been accepted in the proceeding the request for the withdrawal is not subject to a consideration by the Immigration Division of the merits of the withdrawal request. Therefore, it was completely within the Minister’s discretion to withdraw the Report of 17 February 2007.

Context first; point last

Did the Minister have the discretion to withdraw the Report of 17 February 2007? The Federal Court of Appeal has ruled that a Report may be withdrawn from a proceeding as long as no substantive evidence has been accepted; see M.C.I v. Sheremetov 2004 FCA 373. In the present case the Minister discovered an obvious error in the Report and withdrew it under Rule 5(2) of the ID Rules before any hearing took place or any evidence was received. Thus, I conclude that the Minister had discretion to withdraw the Report.

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Context first; point first

The issue in this case is whether the Minister had the discretion to withdraw the Report of 17 February 2007. I conclude that he did. The Federal Court of Appeal has ruled that a Report may be withdrawn from a proceeding as long as no substantive evidence has been accepted; see M.C.I v. Sheremetov 2004 FCA 373. In the present case the Minister discovered an obvious error in the Report and withdrew it under Rule 5(2) of the ID Rules before any hearing took place or any evidence was received.

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The message: context first, details later

Your readers are always asking you: “Why are you telling me all this?”

We don’t read passively You are always introducing

Always create contexts or containers Don’t write like Michael Connelly

Many lawyers (and judges) write like this:

Details Context (if at all) Point or submission

To create smart readers, write like this:

Context (or a container) Point (usually) Details Point reiterated or applied

Why is it hard for lawyers to write context first?

Legal training enforces a model of legal thinking What are the facts? (Details) What is the law? (Details) How does the law apply to the facts? (contexts

emerge) Legal tradition makes legal thinking the basis for legal

writing—from details to contexts Assumption: legal writers are writing mainly for legal

readers, who already have contexts embedded in their minds from legal training

The problem: outside readers always need contexts first The opportunity: even legal readers understand more

readily with contexts first 25

Applications of context first and point first

Introduction or overview Facts or evidence Argument Headings and sub-headings Quotes

Templates

Many tribunals have them If yours doesn’t, develop your own Advantages

Easy way to deal with recurring kinds of cases: fill in the blanks

Predictability for your main audiences Warning: be prepared to deviate

One size does not fit all27

Write an introduction What is this case all about?

The first page says it all I was taught that you told people

what was going on in the first paragraph. (Pierre Berton)

Three key ingredients

Claim: who wants what from whom Precise or “deep” issues A little story to put the issues in

context Simplify: save the details for later

Why in an introduction important for your readers?

Readers need help to grasp complex information

They need that help before the information begins to flow

A good introduction creates smart readers Context for the detail in the rest of

your decision

OHRCBetty Parker worked for Ottawa Systems

Consultants from 2007 until she was let go in 2013. From 2011 until 2012 she was required to take disability leave because she was diagnosed with a bipolar disorder. She claims that in ending her employment the company discriminated against her because of her disability. She has filed a complaint under the Ontario Human Rights Code.

Ottawa Systems Consultants asks to dismiss this complaint. The company acknowledges that it released Ms. Parker because of her disability, but contends that she was incapable of performing her job, and that it could not meet its duty to accommodate her disability without incurring undue hardship. Accordingly, Ottawa Drugs contends that it has not engaged in discrimination under the Code.

The question I must resolve is whether Ottawa Systems Consultants has met its onus to show that, because of health and safety requirements, accommodating Ms. Parker’s disability would cause it undue hardship.

Identify the deep issue

The deep issue: a useful term coined by Bryan Garner

With what level of detail or precision are you going to state the issue you must resolve?

The definition of a deep issue

The ultimate, concrete question that you need to answer to decide a point

The final question you pose when you can no longer usefully ask: “And what does that turn on?”

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A simple example: criminal case A charge of sexual assault where the

complainant and the accused agree that they had sexual intercourse

The ultimate question: Is the accused guilty of sexual assault? And what does that turn on?

Has the Crown proved beyond a reasonable doubt that the complainant did not consent to the sex? The deep issue

Useful technique: exclude what is not in issue

Another example: a claim of discrimination

The issue is whether, in terminating Betty Parker’s employment because of her disability, Ottawa Systems Consultants discriminated against her. “And what does that turn on”?

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Ottawa Systems Consultants terminated Betty Parker’s employment because of her disability. It claimed that she was incapable of performing her job. The issue is whether the company was justified in releasing her because it could not accommodate her disability without incurring undue hardship. “And what does that turn on”?

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The issue is whether Ottawa Systems Consultants can show that accommodating Betty Parker’s disability would impose undue hardship because of safety and cost requirements. The deep issue The word “because” can often help

you define the issue more precisely

A good introduction will make you a better writer

Helps you focus on the questions you must decide

Helps you structure the rest of your decision, using the issues

Use plain and simple language Engage your readers; don’t turn them

away The readers’ question: will you speak

my language or will I have to endure yours?

Postpone the technical detail

Example: Before This is an appeal against a

reassessment made by the Minister of National Revenue on September 12, 2010 , whereby the appellant was denied a deduction in the amount of $1250 as moving expenses in computing her income for the 2009 taxation year, pursuant to section 62 and the definition of “eligible relocation” in subsection 248(1) of the Income Tax Act.

The relevant provisions of the Act provide...

Example: After The appellant Alexis Smith lives in

Sudbury with her husband and two sons. In 2009 she took a three month position with the CIBC in Vancouver. Her family stayed behind in their home in Sudbury.

For the 2009 taxation year, Ms. Smith claims a deduction for moving expenses for the cost of her airfare to Vancouver, $1250. The Minister reassessed her income and denied the deduction. Ms. Smith appeals.

Ms. Smith is entitled to deduct her travel costs under s. 62 of the Act only if she was moving from an old residence to a new residence to enable her to take the job with the Bank.

The issue on this appeal is whether the air fare expense related to a change in residence or was simply an incidental cost of travelling to a temporary workplace.

Facts and evidence

Context before details is especially important in your review of the facts or the evidence You are dumping a lot of detail on

your readers Facts have no meaning without a

context for them As you move from section to

section, topic to topic, start with context

What you have to avoid

Long, unbroken chunks of text One thing after another No road signs

Motion to exclude evidence: no context

At approximately 4 p.m. On December 7, 2000, O.P.P. Constables Charles Jones, Ronald Brown and David Green, accompanied by Crown Attorney Frank Smith, went to Torrance’s home located at 2156 Keele Street, Toronto. A search of the premises was conducted resulting in the seizure of a brown calendar book and a red notebook from Torrance’s bedroom.

Torrance had developed as a prime suspect in a homicide that occurred that afternoon. That fact led the O.P.P. to his residence. At trial, Constables Jones and Brown and Torrance’s father testified about what happened in the Torrance residence

Jones stated that Brown was in charge, and that upon arriving at the front door, they were greeted by Torrance’s mother. Brown asked permission to search the house for Torrance. She allowed them to enter the house, but asked that they wait for the arrival of her husband. Brown’s version of the initial contact is similar. There is no question that the purpose of the constables’ visit was to determine if Torrance was in the house. Brown also told her that Torrance was a suspect in the homicide case and that the police wasted to search the home for Torrance. The police officers and Mrs. Torrance waited...

Some context first

Torrance seeks an order excluding evidence seized from a drawer in his bedroom by O.P.P constables who searched his parents’ home where he lived.

At approximately 4 p.m….

Sharpen the context

Torrance seeks an order excluding evidence seized from a drawer in his bedroom by 0.P.P. constables who searched his parents’ home, where he lived. Torrance claims that the search and seizure were unreasonable contrary to section 8 of the Charter, and that the materials ought to be excluded under section 24(2).

Although Torrance’s father signed a form consenting to the search, the constables did not explain the form to him, and said explicitly that they were searching only for Torrance.

At approximately 4 p.m....

Context and point first

Torrance seeks an order excluding evidence seized from a drawer in his bedroom by 0.P.P. constables who searched his parents’ home, where he lived. Torrance claims that the search and seizure were unreasonable contrary to section 8 of the Charter, and that the materials ought to be excluded under section 24(2).

Although Torrance’s father signed a form consenting to the search, the constables did not explain the form to him, and said explicitly that they were searching only for Torrance. I have concluded that the search was unreasonable and that the materials seized are inadmissible.

At approximately 4 p.m....

Legal analysis: no context; point last Counsel for the Landlord has referred to

Benedetto v Dineen Counsel has also referred to Musilla v AVAN

Management, Drewlo v Custidio and Opara v Cook

[After slogging through these four cases] These cases show that a binding tenancy

agreement is created once the Landlord accepts the Tenant’s application, and accordingly the Tenant cannot unilaterally cancel the agreement and recover his deposit. [POINT LAST]

Context first; point last

Counsel for the Landlord submits that the Tenant cannot recover his rent deposit. In support of her submission she has referred to four cases dealing with the circumstances in which tenants forfeit their deposit.[CONTEXT]

I will briefly discuss each of these cases...[DETAILS]

On the facts of this case, I conclude that the Tenant has forfeited his deposit because…[POINT ]

Context first; point first

Counsel for the Landlord submits that the Tenant cannot recover his rent deposit. In support of her submission she has referred to four cases.[CONTEXT]

All four cases show that a landlord’s acceptance of a tenant’s application creates a binding agreement, which the tenant cannot unilaterally cancel in order to recover the rent deposit. [POINT]

I will briefly discuss each of these cases...[DETAILS]

On the facts of this case, I conclude that the Tenant has forfeited his deposit because…[POINT APPLIED]

Write case-specific headings and sub-headings

For the evidence as well as the analysis

Most writers Use headings and sub-headings for

their analysis Don’t use them for the evidence

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Advantages of headings

Easier for your readers to follow and digest your reasons

Readers deterred by lengthy blocks of text Headings break up the information White space

Useful contexts for the details Logical road map

Three caveats

Don’t overdo it Don’t make them too long

20 words or less Short, single issue decisions may

not need case-specific headings

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Three types of headings

Context or topic Point first Question

Examples

Evidence: context The police investigation of the alleged

theft What the videotape showed The evidence of racial stereotyping

Evidence: point first The police investigation was negligent The evidence shows no racial profiling

Issue: question Did the police investigation

discriminate on the ground of race? Issue: point first

The Commission is entitled to a systemic remedy.

Quotes

Before quoting, ask yourself two questions: 1. Is the quote really necessary? 2. If it is, how much of it is necessary?

If you do quote, tell your readers why they should read the quote Context Point of the quote

Quote or paraphrase?

Quote if: the exact words matter The quote is memorable The quote is instructive

Otherwise paraphrase

Try not to dump truck the legislation

The following are the relevant provisions of the Municipal Act: […followed by a page and a half of

statutory provisions…]

Context The relevant provisions of the

Municipal Act are in section 213(2) and (3), which authorizes municipalities to pass by-laws regulating and prohibiting smoking in public places and workplaces, and sets out the scope of their authority: [the statutory provisions]

Quote from a case--not this:

Counsel referred me to Wigle v.Allstate where Cory J.A. said at p. 116:

It is difficult to conceive of an individual bargaining with a general insurer, either as to the terms of a standard policy of automobile insurance or with regard to the standard form of an endorsement added to that policy. Can it really be said that the average individual is capable of understanding the provisions of such a contract himself or is likely to engage his solicitor to review the terms, advise him of the dangers and complexities of the contract, what is included and what excluded from the coverage, and to then submit an amended contract to the insurer?...

MEGO

But this:

In Wigle v.Allstate at p.116, Cory J.A. emphasized that any ambiguity in a standard form insurance policy should be construed against the insurer: It is difficult to conceive of an

individual bargaining with a general insurer...

Even better:

Equality of bargaining does not exist in a standard form insurance policy. In Wigle v.Allstate Cory J.A. affirmed that any ambiguity in this kind of policy should be construed against the insurer.

Edit your reasons There is no such thing as good

writing; there is only good rewriting. (Brandeis)

Editing can convert mediocre reasons into good reasons

Editing shows that you care about your readers

Edit to sharpen the context

Refine the issues Add context sentences Reorganize sentences and

paragraphs Add headings Shorten or eliminate quotes

When might you not write point first?

If your conclusion or “point” is too complex or multifaceted to be easily summarized

If your conclusion or “point” is controversial

If your conclusion or “point” is likely to alienate your readers by its tone

But remember: although point first is optional, context first is mandatory

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How much context?

You can make choices about how much context you give your readers

You can make choices about whether to write point first Conclusion in the introduction?

Don’t leave your readers in the dark.

Concluding words from two masters of the craft

Easy reading is damn hard writing. Nathaniel Hawthorne

What is written without effort is in general read without pleasure. Samuel Johnson

John Laskin