Guidelines for Judgment Drafting

Introduction
It is important to note at the outset that a Judge does not have to wait until all
the evidence in a case has been had before he/she can start drafting the judg-
ment. The process of drafting a judgment can be long and tedious and in order
to make it less so, it is often necessary to start early and to have a care plan of
action.
The purpose of this presentation is to discuss some general guidelines to be
followed by Trial Court Judges in writing the judgments in cases before them.
While each judge may have a particular way of handling cases, there are certain
widely accepted practices that can greatly facilitate the judgment drafting pro-
cess. The present contribution attempts to highlight some of them.
Judgment may be defined as the expression of the determination that a
trier/finder of facts has come to on the application of the applicable/relevant
law upon the facts proven to the required standard.
In other words, it may be stated as the statement of the conclusions that flow
from the application of the governing law to the facts that the court/judge has
found to be proved to the required standard.
It must therefore be expressed in a language that communicates; accurately and
clearly, those conclusions and the reasons supporting them.
Where it is written, it must be written in a simple, clear and logical prose that
persuades the immediate parties, (especially the losing party) to accept that it
has been fairly heard and that the court/judge has come to a determination in
a manner it/he was entitled to, even if he, (the losing party), is unable to agree
with those conclusions.
In order to draft a good judgment and arrive at a reasonable conclusion, it is
important to:
1. Establish a logical and coherent judgment outline;
2. Develop a good mastery of the factual issues to be resolved;
3. Conduct a thorough analysis of the evidence presented in light of the appli-
cable law and;
4. Properly articulate the reasoning behind the final judgment.
I. THE OUTLINE
A good judgment, like any well-written document should have clearly identi-
fiable parts arranged in a logical sequence. By breaking up the trial into several
distinct parts and looking at the individual pieces rather than the whole, the
Judge will be able, more easily, to draft each segment and thereafter to cobble
the entire document seamlessly together.
The judgment outline should start by addressing any preliminary or threshold
issues that must be resolved before the case can proceed on its merits. These
typically involve such issues as service and notice to the defendant, fair trial
rights, and other constitutional protections, etc.
Depending on the facts of the case and the issues involved, a Judge may choose
to adopt either a chronological order or a thematic approach. The outline
should also be based on the allegations and charges contained in the indictment
and in any pre-trial briefs filed by the Prosecution. In a criminal trial it should
reflect the issues, themes and events on which the Prosecution is seeking con-
viction. If necessary, it can also highlight issues raised by the Defence, such as
an alibi or collateral issues.
In a civil trial, it should be based on the issues agreed or found needing to be
determined.
The outline should also incorporate a segment for discussion of the applicable
law. This is where the Judge shows that he or she is familiar with both the rel-
evant statutory provisions and with the case law on legal precedents. Thereaf-
ter the Judge can proceed to apply the law to the facts of the case in order to
arrive at a reasonable decision or judgment.
Trial judges should support their findings with sufficient reasons to show that
they are not arbitrary and capricious. One should, whenever possible, cite spe-
cifics- for example; evidence from documents, consistencies or inconsistencies
in testimony, conformity to or deviation from normal human behaviour,
awareness of motives for telling the truth or for concealing it etc. In other
words, judges can and should reveal exactly the sort of thought processes that
they followed in reaching a verdict.
In many courts it may even be possible to establish a template for the judgment
drafting outline that can be applied in most, if not all, cases. The Judge will then
be able simply to plug in the details of the case as appropriate. For instance, a
template with the following points can be used in most cases:
SAMPLE JUDGMENT OUTLINE
Introduction
1. Preliminary Issues
2. Summary of Prosecution/Plaintiff s Case
3. Summary of Defence/Defendant’s Case
4. Issues to be determined
Evidence and Factual Findings
5. Prosecution/Plaintiff s Allegation on Issue A
 Prosecution evidence in support of the allegation
 Defence evidence on the allegation
 The Judge’s evaluation of the evidence
6. Prosecution/Plaintiff s Allegation on Issue B
 Prosecution/Plaintiff s evidence in support of the allegation
 Defence evidence on the allegation
 The Judge’s evaluation of the evidence
7. Prosecution/Plaintiff s Allegation on Issue C
 Prosecution evidence in support of the allegation
 Defence evidence on the allegation
 The Judge’s evaluation of the evidence
Applicable Law
8. A Statement of the Law on Issue A
 Statutory Law
 Case Law
9. A Statement of the Law on Issue B
 Statutory Law
 Case Law
10. A Statement of the Law on Issue C
 Statutory Law
 Case Law
Deliberations
11. Applying the Law to the Facts
 These facts [In issue A, B or C]…
o When viewed in the context of this section of the Constitution/ Law/
Regulation/ Contract/ Precedent/ Principle of equity [choose one]…
• Logically lead to this conclusion [judgment] Judgment and Sentence (Criminal)
1. Finding of Guilt(or Acquittal)
2. Aggravating or Mitigating Circumstances
3. Sentence
4. Order, Decision/ Findings (Civil)
II. Factual Allegations
The task of drafting a judgment is not as easy as it sounds. It is not enough
simply to copy-andpaste the statement or testimony of a witness. The Judge
must analyse the evidence, determine what is and what is not important in the
context of the case, make sense out of incoherent submissions, distil the salient
points, summarise the relevant issues, and present all of it in a manner that is
easily understood by a broad audience.
While hearing the evidence, the Judge should take notes and, where available,
make annotations on the verbatim transcripts of the proceedings. Whenever
possible the Judge should also prepare a brief summary of each witness’s testi-
mony immediately after it is concluded. These will later serve as an aide-mem-
oir, particularly in lengthy trials or in trials involving very many witnesses.
Once the presentation of evidence is over, the judge should proceed to draft the
factual sections. There should be a separate segment for each factual allegation
in the indictment/pleadings or, in criminal cases, for each crime in which the
Defendant is directly implicated. For example, if the trial involves multiple in-
stances of theft, assault or murder, each one should be handled separately, pref-
erably in chronological order. If each one of these is done properly, in the end
the Judge will have a very easy task stringing them together.
In civil cases the facts in support of every claim made should be separately an-
alysed and listed. In a criminal case, a suggested approach is to first analyse the
Prosecution’s submissions. This involves:
 Picking out the relevant passages of the indictment/charge
o Combing through the written submissions contained in the pre-trial brief
and final trial brief,
o Reviewing the oral submissions made during closing arguments,
 Examining all Prosecution exhibits,
 Analysing the transcripts of the testimonies of all the Prosecution wit-
nesses testifying to each charge,
 Including their testimony on cross-examination,
 And any prior (inconsistent) statements they may have made.
Thereafter an identical exercise will need to be conducted in respect of the De-
fence as well. In a civil case an adaptation of this analysis based on the plead-
ings filed by the parties is suggested.
In order for a judgment to inspire confidence and to earn the respect of both
parties, the Judge must display a full mastery of the facts at issue in the case. It
is therefore important to properly cite the pages of the transcripts or the parties’
briefs since the final judgment must be supported by the record.
III. Legal Conclusions
A good judgment must also reflect the Judge’s familiarity with the current state
of the law. In a Common law jurisdiction, such as ours, this means the judgment
should demonstrate the Judge’s knowledge of both the applicable statutory
provisions and the relevant case law or legal precedents.
Depending on the facts of the case at bar, it may be necessary, for instance, to
explore the relevant articles of the national constitution as well as the provi-
sions of the enabling statute from which the Prosecution derives the authority
to pursue the Defendant for an alleged crime.
Furthermore, if this is an issue that has been previously litigated, it might be
worthwhile to examine and analyse the manner in which the highest court in
the jurisdiction settled it previously. It is unnecessary for a trial Judge to exam-
ine a case as if it were in a vacuum and risk having the judgment overturned
by a higher court for failure to follow stare decisi.

Such analysis would lay the proper foundation for the Judge’s findings in the
case at bar. However, this part of the discussion should be narrowly tailored to
the scope of the alleged crimes. Thus, if the Defendant is charged with murder,
it is no use having a lengthy discussion on the legal definition of some other
crime.
It is desirable for the Judge to anticipate complicated legal issues in advance
and to research them thoroughly before embarking on the drafting of the legal
conclusions. As noted earlier, sometimes the resolution of preliminary legal
questions such as notice issues, fair trial arguments, or the alleged violation of
constitutional rights, statutory limitations and compliance might make it un-
necessary to consider the case on its merits. Therefore, it is of paramount im-
portance that the legal conclusions be properly researched.

IV. Deliberations
After studying the facts and analysing the law, the Judge must proceed to cor-
relate them to each other in a logical and coherent manner. The Judge must take
all the relevant factors into consideration while omitting the tangential or ex-
traneous ones. He must consider and decide all the credibility issues that arise
and come to what can or cannot be believed and why. The Judge must ask him-
self what would be the most reasonable conclusion to arrive at after viewing
the facts of the case in light of the applicable law.
In a nutshell, the Judge must decide if the facts of the case, when viewed in the
context of the applicable section of the Constitution, law, regulation, contract,
precedent, or principle of equity, would lead to the judgment he is about to
pronounce.
It is often said that a well-written judgment is one that is likely to meet the
approval of the losing party.
Crafting the Judgment
And now comes the difficult part. Putting it together in a clear, logical, readable
and organised sequence. This will frequently begin with the writing of an in-
troduction.
An effective introduction provides two things: a synopsis of the facts and a brief
statement of the issues.
The introduction should provide the necessary context for understanding the
analysis that follows. There is no need of cluttering the opening paragraph with
more information than the reader needs at this point.
Although you, judges, are not obliged to make your writing interesting, doing
so does have the effect of helping the reader to pay attention to the argument.
While a judgment need not be interesting, a good one should be exciting. A
good beginning makes the reader want to read more.
Style
Here are some do’s and don’ts about style in judgment writing:
1. Write as much as possible in plain, simple English, very much as you would
explain it to your next door neighbour who is not a lawyer.
2. Whenever you can express yourself in plain language, devoid of verbiage,
repetition and technical terms, do so. Where possible avoid legalese and for-
eign language. Where, however, you use legitimate terms of art i.e. words
or phrases that either cannot be easily translated because the original lan-
guage triggers a doctrine that lawyers might not recognise by any other
name e.g., “habeas corpus or estoppels”; these terms may be used. Avoid the
use of legal jargon whenever possible.
3. Avoid block quotations. It is not good practice to quote large chunks of text
from books or other judgments. Paraphrase whenever you can. This enables
the reader to appreciate your mastery of the concept described. Where of
course, the use of words in a text is in dispute or where the language of the
contract is in dispute, such quotations are inevitable.
Where reference is merely to the substance of the passage avoid quoting it ver-
batim. If necessary, make reference to it in the footnote.
1. Whenever possible, avoid quoting the charge verbatim unless the wording
of the charge is in dispute or provides the invoked defence.
2. Where, however, you are considering whether or not the charge is defective,
it may be necessary to state it in full.
3. Write short sentences whenever it is possible to communicate your full idea
in such a sentence.
7. Watch your grammar and punctuation. Avoid `sheng’ or slang in your judg-
ment writing.

Writing the Body

Let the body of your judgment flow like you would tell a story to your next
door neighbour, who is not a lawyer, but is concerned to know the outcome of
the dispute. Tell WHO DID WHAT TO WHOM – not the legal consequences
thereof or the various interlocutrices and hearings held thereafter.

Except in the simplest of cases, every trial will involve the determination of a
number of issues. These will have been agreed between the parties or settled
by the Judge/court. Each of the issues will require to be carefully analysed so
as to bring out the Judge’s/court’s decision thereon.
There will be issues of fact and issues of law. There will be facts that are agreed
and facts that are in dispute. There may also be matters that the court/judge
may take judicial notice of. These need not be proved but need to be clearly
stipulated in the judgment.
You are all trail judges. You will need to bear in mind that your judgment may
be subjected to appellate review, it is therefore important that you set out your
consideration of each issue in a way that will convince the appellate court that
you did not misapprehend the issues that needed to be proved or the evidence
that was brought to prove them. This will ensure that the court above yours, or
the press, or the losing party, will not miss the essence of your analysis.
Process of Analysis of an Issue
Judgment is about telling the losing party why it lost. It is best to approach it
by explaining its position because it is the party most interested to know WHY
it did not win and also most likely to appeal. The winning party would care
less how it won and is most unlikely to appeal.
In analysing an issue or a motion, the approach most recommended is to:
State the Losing Party’s Position (LOPP) and then state the Flaw in the Losing
Party’s Position (FLOPP) and then state your conclusion or the court’s finding
thereon.
Writing an Ending
In the very simple cases it will be enough to merely announce the result and
the orders that flow from your determination.
In a judgment of any complexity, however, an ending should provide an op-
portunity to revisit the argument, but without repeating the reasons and using
different language. A good ending should resemble a good beginning which,
in turn, often resembles a good head note.
It is often a poor ending to end a judgment, as many judges do with: “For the
foregoing reasons…”. An effective conclusion should summarise those forego-
ing reasons in a nutshell and in plain English, without repeating citations and
references that are already included in the body.
Footnotes
In order to keep the length of the judgment within reasonable limits and to
incorporate lengthy documents, textbooks passages or cases that may have
been consulted or relied upon, it is often necessary to include footnotes to the
judgment. These should be carefully selected and referenced.
The practise of including lengthy footnotes that are not essential to the under-
standing of the judgment should be deplicated.
Delivery
The manner of delivery of judgment is a matter for the Judge/court.
In lengthy judgment it may be unnecessary to read the entire judgment and a
summary of the judgment bringing out the substance thereof will suffice. It is
important, however, to indicate in such summary that the full judgment not the
summary of judgment is authoritative.