Judging styles

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Ontario appeal court judge David Watt has been heavily criticised for adopting a judgment style that "serves to sensationalize and desensitize tragic facts and serious social issues" or (in the words of another detractor) "trivializes the murder of a woman at the hands of an abusive partner".

According to the 10 March 2011 report in Canada's Globe and Mail, the judge, "once known for using complex sentence structure and legalistic embellishment, has transformed himself into a writer more in the vein of American best-selling novelist Elmore Leonard". It gives several examples of his style and of the comments about it, including this:

Early one morning in June, 2006, Melvin Flores closed the book on his relationship with Cindy MacDonald. With a butcher knife embedded in Cindy's back. Fifty-three blunt force injuries.

Law professor Rakhi Ruparelia is quoted as being

. . . stunned by the disrespect Judge Watt showed . . . toward the gruesome murder of a young woman

and as saying

It seems as though Justice Watt was trying to titillate and entertain with his writing rather than offer a careful and appropriate consideration of the facts.

But not all the comments have been negative. Justice Watt's adopted style has been compared to the style of Lord Denning, and The Globe goes on to say:

Judge Watt's transformation is seen by some as part of a welcome trend away from impenetrable, legal jargon.

Why is there such a difference in perception?

I think it is based on a false dichotomy: write incomprehensibly (as most lawyers do) or for the common people (as Denning and Raymond Chandler did).

Even in more traditional days Lord Denning was widely respected for his common touch and lucidity, but also for his sympathy, and he could never have been accused of sensationalism. This is how he treated a fatal road accident in a judgment reported in 1970:

It happened on 19th April 1964. It was bluebell time in Kent. Mr and Mrs Hinz, the plaintiff, had been married some ten years, and they had four children, all aged nine and under. The youngest was one. The plaintiff was a remarkable woman. In addition to her own four, she was foster mother to four other children. To add to it, she was two months pregnant with her fifth child.

On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island. They took all the children with them. As they were coming back they turned into a lay-by at Thurnham to have a picnic tea. Mr Hinz was at the back of the Dormobile making the tea. The plaintiff had taken Stephanie, her third child, aged three, across the road to pick bluebells on the opposite side. There came along a Jaguar car out of control driven by Mr Berry, the defendant. A tyre had burst. The Jaguar rushed into this lay-by and crashed into Mr. Hinz and the children. Mr. Hinz was frightfully injured and died a little later. Nearly all the children were hurt. Blood was streaming from their heads. Mrs. Hinz, hearing the crash, turned round and saw this disaster. She ran across the road and did all she could. Her husband was beyond recall. But the children recovered.

In fact, Justice Watt's style is only superficially like Lord Denning's. He uses slang; Denning does not. He uses — overuses — fragments as sentences; Denning writes here in complete sentences (although he did sometimes use fragments). Watt speaks of "Cindy"; Denning of "Mrs Hinz, . . . a remarkable woman". Denning gives biographical information; the quoted extract from Watt's judgment does not, although there is ample biography after that introductory section. And Watt uses the emotive "embedded" where Denning is unlikely to have done.

And shortly after the introductory remarks quoted above, which are from paragraph 3 of the judgment, Justice Watt reverts to something approaching legalese. Paragraph 14 reads:

The reconciliation of the appellant and deceased in January, 2006, coincided with the deceased's disclosure to the appellant of her pregnancy. The appellant was elated at the prospect of fatherhood and repeatedly urged the deceased to move into his apartment. The deceased demurred. She did not share the appellant's desire to marry.

Justice Watt can be criticised for writing pastiches where they are not appropriate, and for not writing well or consistently. But this should not be seen as vindicating the impersonal style traditionally associated with judges and with lawyers in general. Lord Denning was not open to any of those criticisms; he wrote naturally and consistently, in his own voice, and to quite different effect. Other "plain" judges have done the same, and like Denning have been acclaimed for it.

Click Watt and Denning for the full judgments (which will open in separate windows).

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