Pitfalls of decision writing

Paper delivered by Justice Kyrou at a member induction and training program, Melbourne

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Introduction

This session is not about getting the law right or reaching the correct or preferable decision as a decision maker. It is also not about how to write well. Rather it is about how to avoid some common pitfalls in writing a decision. The session will be very basic, but hopefully helpful. It is based on 15 years’ experience as a judge.

Before I begin, I can say that what I have learned over those years is that the overarching requirements for good decision-writing are use of language that is appropriate for the intended audience, a logical structure, clarity and succinctness.

The main pitfalls I will discuss can be summarised in five propositions:

• saying too little;
• saying too much;
• saying it incorrectly;
• saying it at different times or in different ways; and
• saying it in a stream of consciousness.

I will now elaborate on each of these propositions.

Saying too little

Each case involves issues that need to be resolved. In resolving those issues, there may be contested evidence upon which you will need to make factual findings and conflicting submissions on the findings of fact or law that you should make.

Before you commence writing your decision, it is vital that you clearly identify the issues that the decision must resolve and the important submissions of the parties that you need to determine.

The courts have upheld many appeals on the basis that the primary decision-maker did not deal with an issue raised in the case or overlooked important submissions of the parties.

There are some obvious examples:

• First, orphan findings. You should not make a finding in your reasons without explaining why you have made it. Primary decision-makers sometimes set out findings at the beginning of their decision and state that they will explain why they have reached them later, but never return to some findings. This creates an obvious appeal ground. The problem can be avoided by carefully re-reading your decision one last time prior to publication.
• Secondly, statutory interpretation. If there is a dispute about the proper interpretation of a statutory provision which is important to the resolution of the case, you cannot simply state what you believe the provision means. You must identify the competing submissions of the parties, set out your views on them and explain the basis of the interpretation you ultimately adopt.
• Thirdly, factual findings. If there is conflicting evidence from witnesses on a factual issue which is important to the resolution of the case, you cannot simply say that, having observed the witnesses, you find the evidence of one of the witnesses more persuasive. You must summarise the evidence of each witness and explain why you prefer one witness’ evidence. Where appropriate, your explanation may include that your preferred witness’ evidence is supported by contemporaneous documents or other witnesses, or that this witness’ evidence remained consistent over time and was unshaken by cross-examination.
• Fourthly, path of reasoning. It is not permissible to express your reasons in conclusionary terms, without explaining the basis upon which you have reached those conclusions. Nor is it permissible to make sweeping statements that you have taken ‘all relevant factors’ into account without first identifying what those factors are and how they have informed your reasoning process.

Saying too much

Once you have identified the issues you need to resolve, the factual and legal findings you need to make and the parties’ submissions you need to discuss, you should deal with each of these and then say no more. Your task will be complete at this stage. If you say more than is necessary, you will not improve your decision and may well create an appeal ground.

A common indicator of a decision-writer saying too much is commentary that is preceded by the words ‘I note in passing’. If the commentary is not relevant to your decision, you should resist the temptation to note it ‘in passing’ or otherwise.

Many appeals have succeeded because the primary decision-maker has made observations which are not relevant to the resolution of the proceeding and which the witnesses and the parties were not given an opportunity to address.

There are some obvious examples:

• First, damaging evidentiary findings. You cannot make adverse findings about a witness which were not the subject of evidence or submissions. For example, if the parties agree that a particular document should be given little weight solely because its provenance is unknown, your decision should simply reflect this. You cannot go further and suggest that a particular witness forged the document when no such allegation was put to any witness and no submission of forgery was made.
• Secondly, not respecting privacy. You should not include personal details relating to a witness or a party if those details are not relevant to the issues in the proceeding.
• Thirdly, sensationalism. You should not describe events which may be considered salacious or titillating in more detail than is required to make factual findings for the purpose of resolving the proceeding. If you do so, a party may complain that you took into account irrelevant considerations. Leave scandalous writing to those who make a living from it.
• Fourthly, speculation. You should not speculate on matters that were not in issue in the proceeding and which were not the subject of evidence or submissions. You should avoid the temptation to comment on matters that piqued your interest during the hearing. Your reasons for decision are no place for thought bubbles, as they may give rise to an appeal ground.
• Fifthly, moral judgments. Your role is to resolve the issues in the proceeding and to make factual findings only insofar as they are necessary to resolve those issues. You must avoid making findings or using language which could be interpreted as passing moral judgment on a witness or a party. To do so is to invite an appeal ground alleging that your personal views of a party or witness inappropriately influenced your decision.
• Sixthly, excessive legal citations. You should not write a thesis on an area of the law or analyse every decision which deals with a particular issue in your reasons. The more you say, the greater the risk that you will misstate a legal proposition. If reference to authorities is required, the most authoritative recent High Court or Full Federal Court decision will usually suffice. If the High Court has expressed a legal test using particular language, do not try to improve on it by using different language, as this may lead to an allegation that you applied the wrong test. You should also bear in mind that including unnecessary details and analysis in your decision is likely to delay finalisation of the decision, contrary to the Tribunal’s objective of resolving cases quickly.
• Seventhly, issues upon which the parties agree. If you are informed that the parties agree on an issue and that agreement appears to be sensible in all the circumstances, there is no need for you to include a detailed analysis of that issue in your reasons.

Saying it incorrectly

Sometimes appeals are successful because the primary decision-maker has used language which introduced uncertainty as to what was meant or gave rise to a concern that a party was not afforded procedural fairness.

Once you have worked out the outcome of a case and your reasons for that outcome, you should explain your reasons in clear and measured terms, without use of gratuitous or inappropriate language.

There are some obvious examples:

• First, insulting or demeaning words. If you make an adverse finding against a witness or a party, you should explain why in an objective, evidence-based manner rather than in a humiliating, snarky or patronising manner. Even if humiliating a witness or a party in your reasons does not lead to a successful appeal, it will create a justifiable sense of grievance in a witness or a party and may damage public trust and confidence in the Tribunal.
• Secondly, flowery or esoteric language. You should not use your decisions as a vehicle for flaunting your perceived superior literary prowess. If you do so, a party may complain that you were flippant or dismissive about their case and did not give their evidence and submissions fair consideration.
• Thirdly, ambiguous words. You should never use words where you are not entirely sure of their meaning. You should always check the precise meaning of words. The meaning of many words can vary depending on context. If you use a word that sounds ‘about right’ without checking, you may find that the context in which you have used it creates an ambiguity about its meaning which may call into question the correctness of your decision. In my experience, primary decision-makers sometimes include in their decisions Latin phrases which are superficially relevant, but which are entirely inapt in the particular context of the decision.
• Fourthly, conflating issues. You should use short sentences which deal with a single issue and avoid excessive commas, as they can make the sentence difficult to follow. If you include too many issues in a single sentence, you may create an ambiguity as to whether any finding that follows that sentence is intended to apply to only one of those issues, or if more than one issue, which ones.

Saying it at different times or in different ways

Many decisions involve complex legal and factual issues which make it difficult to complete the entire decision in one writing session. Ambiguities and errors sometimes arise due to temporal gaps in the decision-writing process.

When you amend a part of a draft decision dealing with an issue many days after the draft was prepared, there is a risk that you may overlook the fact that that issue was also dealt with in another part of the draft and thereby inadvertently introduce inconsistency in the decision.

Similarly, when there is a break in the decision-writing process, there is a risk that you may use language to describe a matter that you have already addressed earlier in the decision using different language and thereby introduce uncertainty as to your intended meaning.

Another manifestation of this problem is where you use a specific phrase to define an event or document in an early part of your decision but forget that you have done so when you resume writing, and you describe that event or document in words which do not incorporate the defined phrase.

These problems can usually be avoided if the decision is re-read carefully in its entirety.

Saying it in a stream of consciousness

Some of the worst primary-decisions that I have considered as an appellate judge are ones that contain an outpouring of thoughts without any logical flow or structure. These types of decisions which involve a stream of consciousness create a real risk that an appellate court may find that an important issue was not adequately considered or that the reasons do not contain a discernible path of reasoning.

Good Tribunal decisions follow a logical structure. It is not sufficient for all the relevant facts, the applicable law and the member’s analysis and conclusions to be located ‘somewhere’ in the reasons for decision. They should be set out in a proper sequence. The reader should not have to read the decision multiple times to try to locate them. It should not be a ‘Where’s Wally’ type of exercise.

A logical structure enables the reader – including an appellate court – to follow every step of the reasoning process leading to the ultimate decision and be satisfied that all relevant issues are dealt with appropriately.

I am a devotee of the use of headings and subheadings in decisions. They help identify issues and sub-issues and provide a convenient structure for dealing with them. They can also serve as an informal checklist to ensure that all important matters are dealt with.