NCJ Number
204264
Journal
Judicial Officers' Bulletin Volume: 15 Issue: 10 Dated: November 2003 Pages: 83-86
Date Published
November 2003
Length
4 pages
Annotation
In discussing judicial decisionmaking and judgment-writing in New South Wales (Australia) courts, this article considers impartiality versus neutrality, conscious and unconscious bias, the law's accommodation of differing judicial personalities, the new concept of "community values," the structure and language of judgments, and the importance of ex tempore judgments.
Abstract
The discussion focuses on a recent publication of the Judicial Commission of New South Wales entitled, "A Matter of Judgment." This publication contains 10 articles on judicial decisionmaking and the writing of judgments. The articles examine three fundamental aspects of the judicial process, namely, impartiality, creativity and its limits, and communication. This article notes that a theme common to many of the articles is the vital role of the individual judge's personality and character in his/her decisionmaking. This may lead to bias or prejudice in decisionmaking. The author of the current article suggests that the common law itself has recognized that judges will differ in their perspectives, such that the legal process does not attempt to erase judicial differences but rather to accommodate them through concepts of ranges of damages and sentences, as well as judicial discretion. The author cautions against judges relying too heavily upon "community values" in making decisions rather than upon doctrines of the common law. Such a practice assumes that it is even possible to ascertain dominant community values in an increasingly complex and diverse society. The articles on judgment-writing include the advice that plain judicial language should be used in place of the legal opacity that still characterizes the explanation of judicial judgments. Still, the current author advises that there must be a serious discussion of precedent in any communication of a judicial decision, along with how relevant law is being applied. He also offers the opinion that it is impractical to expect judges to frame their judgments primarily for the benefit of lay readers or to scrupulously avoid the use of technical terms. Case summaries attached to the full text of the decision could target a lay audience by stating the nature of the case, the evidence accepted by the court, the relevant law, and the conclusions and orders.