Content downloaded/printed from HeinOnline Mon Aug 19 13:33:11 2019 Citations: Bluebook 20th ed. John Kleefeld, Review of Edward Berry, Writing Reasons: A Handbook for Judges, 4th ed., 63 MCGILL L. J. 191, [iv] (2017). APA 6th ed. Kleefeld, J. (2017). Review of edward berry, writing reasons: handbook for judges, 4th ed. McGill Law Journal, 63(1), 191-[iv]. Chicago 7th ed. John Kleefeld, "Review of Edward Berry, Writing Reasons: A Handbook for Judges, 4th ed.," McGill Law Journal 63, no. 1 (September 2017): 191-[iv] McGill Guide 9th ed. John Kleefeld, "Review of Edward Berry, Writing Reasons: A Handbook for Judges, 4th ed." (2017) 63:1 McGill LJ 191. MLA 8th ed. Kleefeld, John. "Review of Edward Berry, Writing Reasons: A Handbook for Judges, 4th ed." McGill Law Journal, vol. 63, no. 1, September 2017, pp. 191-[iv]. HeinOnline. OSCOLA 4th ed. John Kleefeld, 'Review of Edward Berry, Writing Reasons: A Handbook for Judges, 4th ed.' (2017) 63 MCGILL L J 191 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement availablehttps://heinonline.org/HOL/License at -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device McGill Law Journal - Revue de droit de McGill Review of Edward Berry, Witing Reasons: A Handbook for Judges, 4th ed (Toronto: LexisNexis, 2015), pp 158. ISBN: 978-0-433- 47964-2. John C Kleefeld* Edward Berry's Writing Reasons,1 though aimed at judges who pro- vide written reasons for their decisions, deserves a wider audience. With this version, it may get just that. Originally published in 1998 and self- published for the first three editions, this delightful and highly instructive handbook has now been published by LexisNexis. While I lament the loss of some of the third edition's form-its cover, its elegant typesetting, its clever Shakespearean epitaphs leading off each chapter (it still has epi- taphs, but now mostly from other sources)-I laud the substantive chang- es and the decision to leave the book's basic format intact. That format is one in which the author-an emeritus professor of English and long-time leader of judicial writing workshops-goes from macrocosm to microcosm, continually imparting wisdom along the way and asking readers to test how well they've imbibed it through end-of-chapter exercises and answer keys. Berry's first macrocosmic point is context. It is the driving theme of the first three chapters-"Context First", "Introductions", and "Organiza- tion"-and of much of the rest of the book. The notion that information needs context isn't hard to understand, says Berry, yet it is often forgotten for two general reasons. The first is that, in working through a problem, we tend to write for ourselves rather than our readers. The second reason, closely related to the first, is that we assume reader expertise or knowledge that doesn't actually exist. Journalists are aware of both tendencies and work hard to overcome them. Two further reasons for for- getting context apply to judicial writing, says Berry: legal training and the traditions of legal communication. The facts-law-application-conclusion Professor and Dean of Law, University of New Brunswick (formerly Associate Pro- fessor, University of Saskatchewan). © John C. Kleefeld 2017 Citation: (2017) 63:1 McGill LJ 191 R6f6rence : (2017) 63:1 RD McGill 191 Edward Berry, Writing Reasons: A Handbook for Judges, 4th ed (Toronto: LexisNexis, 2015). 192 (2017) 63:1 MCGILL LAWJOURNAL-REVUEDEDROITDEMCGILL sequence that law schools attempt to drill into students may lend itself well to legal precision; as a presentation method, though, Berry asserts that it often fails to respond to readers' needs. This is even truer when considering that the audience for judgments is not only lawyers, but par- ties to a case (at least one of whom is often now "self-represented"2) and, indeed, the "public at large".3 Such readers need more context so that they can better understand the legal concepts and terminology and anticipate how and why judgments unfold in the way that they do. Example being better than precept, I'll provide one. Consider the fol- lowing introduction to a judgment: This is an appeal from a judgment of the Court of Appeal for Ontar- io, 2011 ONCA 482, 107 OR (3d) 9, affirming a decision of the Ontar- io Superior Court of Justice per Himel J, 2011 ONSC 1500, 105 OR (3d) 761, granting the respondent's application for an order declaring that life support could not be removed from her husband without her consent, and that any challenge to her refusal to consent must be brought before Ontario's Consent and Capacity Board pursuant to the Health Care Consent Act, 1996, SO 1996, c 2, Sch A ("ICCA"). For the following reasons, we affirm the decisions below and dismiss the appeal. In fact, this is a hypothetical introduction to an actual Supreme Court of Canada decision. I provide the real introduction below, but let me first de- fend my hypothetical one, then critique it A la Berry. In some ways, this introduction is not only defensible, but representa- tive of many introductions to appellate judgments. The style and struc- ture is especially common in the U.S. federal courts, but also in other ju- risdictions. In a few sentences (just two here), the court explains the pro- cedural history of the case and says how it will dispose of it. The key is- sues, though not labelled as such in this example, can be inferred: they have to do with whether a patient's spouse must consent before the pa- tient's life support is removed and with whether a refusal to consent must be challenged before a special tribunal or board acting under a provincial statute. 2 See generally National Self-Represented Litigants Project, online: <representingyour- selfcanada.com>, archived at perma.cc/WSK7-HSU2, and particularly, Julie Macfar- lane, "The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants: Final Report" (May 2013) at 33 34 online: Nation- al Self-Represented Litigants Project <representingyourselfcanada.com/wp -content /uploads/2015/07/nsrlp-srl-research-study-final-report.pdf>, archived at perma.cc/4GDX -BTXK (noting, among other things, that self-representation in provincial family courts is now consistently at or above 40 per cent, and in some cases far higher). a Berry, supra note 1 at 3, citing R v Sheppard, 2002 SCC 26 at para 55, [2002] 1 SCR 869. BOOK REVIEW 193 However, this compaction is achieved at the cost of clarity, especially for the lay reader. Legal readers-lawyers, judges, law clerks, and law students slogging through the task of briefing cases-might appreciate having the procedural context handed to them at the outset in highly crafted form. But for parties and public-at-large readers, the important thing is substantive context, largely missing here. The questions "Why should I read this?" and "What does this mean" go unanswered. And this isn't the only problem. The first sentence, at ninety-five words, is longer than the average sentence by a factor of almost five, making it nightmar- ish to read.4 It is clogged with citations-fewer, actually, than many legal sentences-and uses jargon like "respondent" and "application". The pas- sive voice has also crept in-we learn that life support "could not be re- moved"-and we are left to wonder: removed by whom? These things fur- ther detract from the sentence's readability and even its accountability. The second sentence raises a more difficult question: should an introduc- tion announce the decision as well as the issues? Berry says that if read- ers need a road map, "why not announce the final destination in ad- vance?"5 But he then considers whether, and in which cases, this is a good or a bad idea. For example, he notes that doing so might induce a reader to stop reading or treat the reasons that follow as "mere rationalizations, afterthoughts produced to justify a verdict arrived at by mere prejudice."6 Ultimately, he eschews a single or formulaic answer to this question on 4 See LA Sherman, Analytics of Literature: A Manual for the Objective Study of English Prose and Poetry (Boston: Ginn & Co, 1893) at 256-2, online: Internet Archive <https://archive.org/details/analyticslitera00shergoog>; William H DuBay, "The Princi- ples of Readability' (2004), online: <www.impact-information.com/impactinfo/readab ility02.pdf>, archived at perma.cc/N2Z4-4EMG. Both works stand for the proposition that, other things being equal, readers understand shorter sentences better than longer ones. Sherman, a professor of English literature, was the first to statistically document a progressive shortening of sentences over time by counting average sentence length over a range of literature per 100-year periods. His study of pre-Elizabethan sentences based on representative authors yielded an average length of 63 words (Robert Fabyan); by Elizabethan times, this had shortened to 45 words (Edmund Spenser, Richard Hooker); by Victorian times, to 28 words (Lord MacAulay, Thomas De Quincy); and in Sherman's own time, 23 words (Ralph Waldo Emerson, William Ellery Channing). DuBay estimates that sentences now average about 20 words (ibidat 10). For compara- ble studies finding a drop in average sentence length over time, see e.g. Mark Liber- man, "Real Trends in Word and Sentence Length" (31 October 2011), Language Log (blog), online: <languagelog.ldc.upenn.edu/nllI?p=3534>, archived at perma.cc/GBB6- XV7J (analyzing US presidential inaugural and state of the union addresses); Alan G Gross, Joseph E Harmon & Michael Reidy, Communicating Science: The Scientific Arti- cle from the 17th Century to the Present (New York: Oxford University Press, 2002) at 171 (finding that average sentence length in scientific prose has declined from about 60 words to 27 words since the 17th century).