Make It Make Sense

What is the job?

•To decide•To communicate

•You can’t write a good statement if you have not made a sound decision

Good decisions must be communicated

effectively

Effective communication is the bedrock of the legal

process

Equal Treatment Bench Book, published by the Judicial Studies Board

Making good decisions involves:

• Sound preparation

• Recognising issues

• Weighing all the relevant evidence

• Good fact-finding

• And

Authority

Obstacles

•lack of clarity as to the facts•conflicts of evidence

We need 2 things

•Clarity of thought

•Clarity of expression

Is there a house style?

The CLASSIC JUDICIAL STYLE

–Issues–Evidence –Findings of Fact–Law–Submissions–Reasons

CHEAP AND CHEERFUL

•Findings of Fact•(Decision) •Reasons

•Which would I take to a desert island?

FINDINGS OF FACT

You cannot apply the law without knowing the facts of the case

YOU HAVE TO DECIDE THE FACTS FIRST

A JOINT PROCESS OF DECISION MAKING

•You have to be sure you all agree the facts of the case before you reach a joint decision.

In agreeing the facts, telling the story, you are forced jointly to address the conflicts in the evidence

•She says she can walk 0 metres without severe discomfort

•The EMP says she can walk 200 metres without severe discomfort

•The GP says “pain and difficulty” on walking

What’s the story?

• She used to walk to the surgery – 5 mins away

• Hasn’t for the last year• Still goes to the neighbour- 2 doors down. • Sits in the car while her son does her

shopping• Moved bedroom downstairs – can’t do

stairs. • Pain management difficult

She is virtually unable to walk

Why?• Wholly credible account• Consistent with diagnosis, treatment,

range of activity• EMP thought she was still walking to

the surgery.

• You cannot apply the law without knowing the facts of the case• You have to be sure you all agree the

facts before you reach a joint decision. • In agreeing the facts, telling the

story, you are forced jointly to address the conflicts in the evidence

And• Agreeing the facts properly will

get your statement half written even before you give the decision.

AndIn a complex case, your draft findings, prepared in chronological order, are an essential tool for your analysis and your questioning

What are facts?

This is not a stupid question

What are facts? Simple, descriptive

statements

Circumstances Incidents Details Information Events Items Factors Particulars Features Specifics History

•The Actualité

Reality ▼

Factuality▼

Certainty

▼Truth

What’s the missing link?

INFERENCE •To deduce•To derive from what has gone before

•To arrive at a logical conclusion

The art of drawing a conclusion from

statements of fact

Summary – or Conclusion of Fact

• She has made substantial adaptations and compromises because of pain on walking

Inference

• Any walking beyond a few yards is only achieved with severe discomfort.

Conclusion – applying the law

She is virtually unable to walk

Every step I take is agony

Every Step I take is Agony• Can’t now walk to the surgery as he used. • Takes the dogs to the park, but sits once there.• The entrance is 4 – 500 metres away. • He likes browsing round garden centres• He meets his children at The Mall, and they go

to the games shop.

Summary or Conclusion of Fact

He is still relatively mobile in spite of discomfort

Inference

His pain and discomfort do not amount to severe discomfort on walking very limited distances

Conclusion applying the law

He is not virtually unable to walk.

Facts are descriptive.

Conclusions are in the terms of the regulations.

What goes where?

Findings of Fact - Facts - in chronological order

Reasons - Conclusions and why you reached them

• Inferences and explanations of how you reached your facts?

How do you write the Reasons?

How you found the facts

How you applied the law to the facts

Reasons• Address each issue• Subheadings• Logical analysis• Lead up to each conclusion • Always reflect the statutory test in the

conclusion

• Refer to submissions

• Include reference to or explanation of the law where you judge it necessary – in complex cases, to address misunderstandings

• Check you have explained why the next higher test or descriptor is not met

Don’t forget• If you are not awarding at a rate that

was previously awarded, you must explain why. • If it is a majority decision, you must

give the minority reasons. • If you remove an award, you must

give reasons.

Include procedural points -

• Why you proceeded on the papers without directing an oral hearing.

• Why you proceeded in absence

Paragraph Numbers

What about the evidence?

Leave it out

Do NOT Recite evidence

• Refer to it in explaining what you preferred and what you rejected. That may involve a short summary or illustration.

• Reciting evidence i) confuses the reader ii) misleads you

Dealing with inconsistency

Demonstrate that it is a significant inability or refusal

to give an accurate account of the facts with two or three

clear illustrations.

WHAT WENT OUT WITH THE BATHWATER?

Evidence - the essentials • What documents did the tribunal see? • Who did the tribunal hear from?

Issues The legal and factual questions the Tribunal has to

answer • Safe to omit on a new claim… • But don’t forget them…

1 Was the claim for DLA received within a reasonable longer period after the form was requested on 01 08 12, so that the date of claim is not 1 11 12 but 01 08 12?

2 Does she meet the tests for this benefit?3 If so, did she meet the tests for this benefit

any earlier than the date of her accident on 26 07 12 (qualifying period)?

Secretary of State

Supersession

Structured Reasons • Preliminary / procedural points/issues• Evidence – why appellant evidence/HCP report is

source of some concern• Jurisdiction – dates within/ supersession• Benefit headings• Extra tests for children• Failure to continue award on renewal• Duration of award• Minority reasons• Post decision changes

Remember

Findings of Fact First Then apply the law to the facts

Use Templates

Create a library. Use them to refer to the law, to explain the law, to set out some background particulars

Never Use Templates • Never ever use them to deal with the

appellant as an individual. • It is the very essence of judgecraft

that you deal with each person as an individual.

No Formulas

• If HCP reports are independent, objective and

supported by clinical findings,

we don’t need Judges

Explain why evidence is preferred or rejected by

content, not source

Blaming the claimant

It is the routine refuge of the weak Judge to bolster the statement with:

• unexplained references to inconsistency or exaggeration – or relying on trivial examples

• Unsupported assertions that someone does something because they choose to not because they need to

• Presenting bizarre explanations instead of the simple one – “it hurts”

Go back to the FACTS

Support your conclusions from your facts

ORAL REASONS ?

• Giving reasons on the day? Do – you can simply explain why the claimant did not get the award or the higher descriptor they want

• Giving reasons on the decision notice? Do – it matters particularly where the claimant has won to show why

STYLE

1 Headings 2 Paragraph numbers3 Short, clear paragraphs4 One topic at a time 5 Language

Language

The Obstacles

•Complex area of law, •Difficult language, •Formality imposed by statutory tests,•Tradition

We Say

You have won your appeal

We Write

The respondent has failed to show grounds to

supersede the decision

Traditional legal mode of expression

•formal language, •complex sentence structure, •densely presented

These are the things Judges do:

–We proceed–We peruse–We consider–We direct ourselves –We are assisted–We are precluded

While claimants…. Submit Indicate Assert, or Contend

Who are we writing for?

Functional literacy levels

One in six people in the UK struggle to

read and write

(The Literacy Trust)

Deprivation, unemployment and low literacy levels make the

UK one of the most poverty-stricken countries among developed nations

(UN: Human Development Indices: a statistical update 2008)

Plain English Campaign

What is Plain English?

It is a message, written with the reader in mind and with the right tone of voice, that is clear and concise.

Impact on the Judicial System

Family Procedure Rules :

• “This Part contains the court’s powers to …..”• “Where to Start Proceedings”• “What the Court Officer must do….”

Upper Tribunal Decisions

“You have the right of appeal to the Upper Tribunal but only on a point of law and not on issues of fact. So the right of appeal to the Upper Tribunal is not a second opportunity to dispute the facts.”

Simple, direct explanations, direct

language, “you” and “I”

Plain Simple English is the order of the

day.

Use familiar language Appellant Mrs Smith

Does not seek recovery Is not asking for the money back

Mrs Smith now contends Mrs Smith says

She subsequently informed She later told

She maintains the basis of that appeal

She is still saying the same thing

Elected to have her appeal dealt with on the papers

Did not ask to come to a hearing

Did not avail herself of the opportunity for an oral hearing

Did not ask to come to a hearing

“An adequate amount of fluids”

Enough to drink

“The HCP opined”

The nurse who saw her says

If you were trying to explain across the table, would you say

- “the full particulars whereof” “In the light of the foregoing”

“In these premises”

Plain EnglishThe main advantages of plain English are:

• It is faster to write• It is faster to read• You get your message across more

often, more easily and in a friendlier way

And their guidance is:

• Keep your words and sentences short• Prefer active verbs• Use “you” and “we”• Use words that are appropriate for the

reader – every day English• Use lists • Use clear, helpful headings

NOT USWe have to show we have applied the

statutory tests:

“By virtue of the provisions of section 12(8)(b) of the Social Security Act 1998, the Tribunal may

not consider circumstances not obtaining at the date of the decision, namely 11th October 2012”

YES US

You can safely simplify so long as it is clear you have held applied the right tests: without severe discomfort, frequent throughout the day, etc

“The Tribunal has to look at how things were when this decision was made. That is 11 October 2012. The Tribunal has to decide if that was the right decision. The Tribunal can’t look at changes since then.”

You can add in the statutory reference:

“That is what the law says: section 12(8)(b) of the Social Security Act 1998.”

“It is also important to remember that the tribunal had to deal with your situation as it was at the date of the Secretary of State’s original decision, 11/10/12. So events which have happened since then could not affect the tribunal’s decision.” (Judge Wikeley)

Attention with bodily functions

“It may help to explain that this is a benefit about help to live independently. There are strict tests, which are set out more fully below. But this is about is how much help someone needs, in person, to manage things that other people do for themselves.”

Double negatives In C67/98 the Commissioner states,

“The provision… for the exclusion of familiar routes is not an exclusion of familiar areas. It is only the ability to walk on familiar routes which is to be excluded. If a claimant can walk about on a route or routes within a familiar area, even though any particular route is not familiar to him, the ability to walk on that route is not to be excluded.”

?

I have provided a translation

“This is about getting to places. It is about ways of getting to places that are not familiar – that is, routes that you are not used to. We don’t look at routes that you are familiar with. We can look at unfamiliar routes even in familiar areas.”

YES US - A REMINDER • Keep your words short • Keep your sentences short• Prefer active verbs• Use “you” and “we”• Use words that are right for the reader –

every day English• Use lists • Use clear, helpful headings

Style and Layout • Space it well • Clear headings• Short sentences –15 – 20 words per sentence makes for clear

writing• One idea per sentence• Paragraph

One topic per paragraph• Punctuate

Absolute Professionalism

These are errors of law Capital letter abusePoxy punctuationParagraph number gloopsInconsistent formatting Spelling mistakes

Lookalikes (affect/effect)

Which law?

The law that says The Judge who is careless

about presentation is careless about the evidence and the reasoning

Or

Do you really want the Supreme Court reading a statement with spelling mistakes?

Or

Why would you expect respect for your fairness and thoroughness if you can’t get the appellant’s name right?

Presentation counts

Read it through • She will go for short walks for fibromyalgia

up and down the road.• She could occasionally do a roast. The Health

Care Assessor awarded no points for this. • She was able to cope with change. She had a

friendly nature. • She needed almost constant support to walk

anywhere unless she was triggered or spooked.

Reading Stamina

How many people read past the first page?

• Put your findings of fact first• Keep findings of fact separate from

reasons• Help the appellant find the description

of themselves• If you have got it right, they will see

themselves in what you write

Summarise

“To sum it up, given the tests we have to apply, we decided Mr Smith’s pain and disability were not so severe that he needed the help that this benefit is paid for. His difficulties are very genuine, but he does not qualify for DLA.”

Clutter and Junk

Cut it out.

The DWP’s facts of the appeal were set out in Section 4

Mr A appealed against the decision of 23 11 10 and requested an oral hearing.

LawThis was set out in the appeal submissions and the Welfare Reform Act 2007, Employment and Support Allowance Regulations 2008, Social Security Act 1998 and Social Security and Child Support (Decisions and Appeals) Regulations 1999 as amended.

I will get overturned

If you are worried, put the formal stuff in but not so it distracts from the message.

It is not a choice :

“Court documents and judicial decisions shall be drafted in an accessible, simple and clear language.”

Paragraph 16 of the Magna Carta for Judges, Issued by the Consultative Council for European Judges, adopted in November 2010

“Judges must be able to explain their reasons for their decisions in accessible language so that the important parts can be read and understood by laypeople, and not just by other lawyers.”

Lady Justice Arden, in her recent lecture Magna Carta and the Judges

Lay persons may not understand court jargon or technical terms, such as ‘questionnaires’, ‘directions’ and ‘disclosure ’.• keep language as simple as possible • give clear explanations when

required.

Equal Treatment Bench Book

Remember:

If you write it clearly, the Upper Tribunal will

understand

If you write for the Upper Tribunal,

the appellant won‘t

Make it make sense

You know it makes sense

Martha Street June 2014