Lawyers are often criticized for being incomprehensible. Judges, if anything, are usually said to be even harder to understand.
Many a law student and lawyer have struggled to identify what exactly a court meant in its reasons for judgment. I have read trial decisions of cases I’ve argued and been unsure if my client won or lost.
Yet a senior Ontario judge is being criticized in the media for writing too clearly.
David Tanovich, a well-respected legal academic, is quoted in The Globe and Mail as saying of Justice David Watt of the Court of Appeal for Ontario “is out of control.
I am frankly surprised that no one on the court — including the chief justice — has said anything to him. I would not be surprised if there is not a judicial council complaint if he continues.”
Tanovich also said the criminal law is no place for lively writing that “serves to sensationalize and desensitize tragic facts and serious social issues.”
In a letter to the editor, Tanovich clarified his position. He said his real concern was to ensure that “the very personal facts about real people, accused and victim, and about tragic and serious issues are treated in legal judgments with respect and dignity.”
I disagree with these and other criticisms. Watt’s language is clear, direct, and easy to understand. It often deals with dreadful things, but being plain-spoken is a good thing.
Using direct and clear language doesn’t denigrate anyone. Indeed, obfuscation suggests the reader can’t handle the reality.
Consider two recent excerpts from Watt’s decisions. “On a cold weekend in late January 2000, the lengthy but brittle relationship among Michael Luciano, Colleen Richardson-Luciano, and James Cooper ended. Abruptly and violently. First, in Woodbridge.
Then, in Egmondville. Two deaths. Colleen Richardson-Luciano died first. In Woodbridge. Stabbed to death. A day later, James Cooper died in Egmondville. By asphyxia from strangulation,” he wrote in
R. v. Luciano.
“Explosions damage and destroy things. Sometimes, their victims are people. Like here. An explosion damaged and destroyed several buildings. Hurt some people too. And killed others. The explosion was preventable,” he wrote in
Ontario (Labour) v. Enbridge Gas Distribution Inc.The language is clear, direct, and easy to understand. I agree that in dealing with victims’ families, it’s important to use tact and sometimes avoid using blunt language. But Watt is writing for judges, lawyers, and the public, all of whom deserve to be told clearly what the law is.
As U.S. judge Billings Learned Hand said in 1916, “The language of the law must not be foreign to the ears of those who are to obey it.”
Watt deserves praise for writing clearly.
James Morton is a Toronto lawyer and past president of the Ontario Bar Association. He also teaches evidence at Osgoode Hall Law School.
