An edited version of this article first appeared in the June, 2003 issue of Canadian Lawyer. If you wish to reproduce this article, click here for copyright info.
New! Improved! 140 Percent More Verbiage!
It seems almost impossible, but in a few more months it will have been thirty years since I started law school. What a rude awakening that was.
Until then, I had found my school material—mostly math and economics—reasonably comprehensible. All of a sudden, I was reading page after page of dense verbiage which perplexed rather than edified me. Judges made long, obscure arguments that I could barely follow. They drew distinctions between things that seemed to me to have no real differences. They claimed to be following precedent when it appeared to me they were actually reversing it.
My professors seemed to expect me to reconcile decisions from different courts which to me seemed irreconcilably contradictory. I just couldn’t get the hang of this thing. Math was a cinch in comparison. My marks plummeted.
Being young and naïve, I assumed that the fault was mine—that if I thought hard enough, or spent more time studying, I would eventually be able to make sense of what these esteemed judges were saying. It wasn’t so much that I was awed by their age or status. It was rather that I figured everyone in the world was like me—that they had some ideas they earnestly wanted to convey, and that they would never be satisfied seeing their thoughts published until they had made them as crystal clear and rigorously logical as they could. So if the judges were doing their best to illuminate things for me, and I was doing my best to absorb their precious rays of wisdom, surely the light should have been dawning in my head. It wasn’t.
Over the decades, light has gradually seeped in, but from other sources. It has illuminated this comforting insight: the problem is not with me—it’s with them. Many of the people out there writing judgments are lousy writers. Worse yet--their lousy writing ability overlays a jumble of confused, disorganized thinking. They can’t make their thoughts clear to readers because they haven’t first clarified them in their own minds.
Mathematician and philosopher Blaise Pascal once wrote: "I have made this letter longer than usual only because I didn’t have time to make it shorter."
Henry David Thoreau concurred: "Not that the story need be long, but it will take a long while to make it short."
These gentlemen were right. Concise writing is a time-consuming skill. First you have to clarify in your own mind what you really want to say. Then you write it. Then you edit it. You refine the arguments, paring away non-essentials, eliminating redundancy, substituting precise single words for long obscure phrases. Finally you have something worth reading.
My gut feeling since law school has been that judicial verbosity has been getting worse, not better. I decided to test my hypothesis over a span of 70 years. For 2002 data, I used Volume 60 of the Ontario Reports, Third Series. For earlier data, I used 1932’s sole volume of Ontario Reports.
I divided the number of pages in each volume by the number of reported cases. In 1932, the average judgment took just under 8 pages. By 2002, it had doubled to 16 pages. But page density can vary enormously depending on margins and font size. So I also counted the number of lines per page, and the average number of words per line in a sampling from each volume.
Guess what? The average judgment in 1932 contained about 3,450 words. In 2002, it was about 8,280 words, or 2.4 times as long (for the mathematically challenged, that’s an increase of 140 percent).
Is this extra verbiage necessary? Does it reflect the increasing complexity of the world, perhaps? It would be tempting to give some credence to this explanation, were it not for the existence of those unsung heroes of the legal community, the headnote writers. These nameless miracle workers can render fifty pages of gobbledygook into a page or two of real content. The headnotes are so true to the judgments, yet so much easier to follow, that I constantly find myself asking, "Why couldn’t the judge have written it this way in the first place?"
Of course, not even the best headnote writer can take a vague, irrational judgment and make it clear and rational, but at least his précis lets readers more easily pick out what the final outcome is and what non sequiturs it contains.
But do we not have the right to expect those elevated to the judiciary’s highest levels to write clearly and concisely? At the appellate level, the explanation may be that the learned judges aren’t actually writing their own judgments. Their 25-year-old clerks, fresh out of law school, are doing it for them. At least, this is the charge levelled by political science professors F.L. Morton and Rainer Knopff in their essay, "The Role of Clerks in the Supreme Court of Canada," contained in Professor Morton’s textbook Law, Politics and the Judicial Process in Canada (University of Calgary Press, 2002). The professors muster some interesting evidence to support their complaint. It’s worth a read.
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