Rewriting Judgments: Fixing the Courts’ Bad Formatting
Kendall Gray over at The Appellate Record has had some fun recently reformatting a Supreme Court of Texas opinion in an attempt to apply modern typographical practices to a product that still owes its shape to the typewriter. I won’t repeat here his layout choices and reasons—you can read them for yourselves—and see the before and after examples he gives.
I’ve long griped about the ugly way our courts publish their decisions, which look like something from the (by now) fuddy-duddy fifties, replete with double-spacing, two spaces after periods, 1 inch margins, etc. So I thought I’d take Gray’s choices and as much as possible apply them to an Ontario Court of Appeal judgment, to see what the result would look like.
The judgment is 1470568 Ontario Limited (East Side Mario’s) v. Prime Restaurants of Canada Inc. 2011 ONCA 9, released today. (The link is to the PDF version; the HTML version is by and large unformatted and, presumably, exists only so it can be put to further use by CanLII and others.) My rewrite, again a PDF, is available here. In my defence I have to say that this was done hastily and using another’s criteria; as well, I don’t have the best layout software at my disposal. But there are things I like about it: there are hyperlinks where appropriate; the column of text is narrower and the leading between lines smaller, which make for easier reading; headings use sans-serif while the text is in a serif typeface (not Times); there’s one space after a period; and I’ve turned on hyphenation, which makes the justified margin a trifle more tolerable.
Until the courts start publishing XML judgments which properly tag the various components of a decision, we’re not going to be able to format opinions for ourselves and will have to rely on the court administration to make them readable. In which case, whether Gray’s particular choices are adopted or not, the courts really should acquire some typographical expertise and use it to improve their judgments.
Why not patch up the style of cause to current McGill Guide standards while you’re at it: 1470568 Ontario Limited (East Side Mario’s) v Prime Restaurants of Canada Inc instead of 1470568 Ontario Limited (East Side Mario’s) v. Prime Restaurants of Canada Inc.
It is worth noting that there are further issues with judgments, at least in Australia:
1. The overall structure and content. There are no tables of content, legislation, cases or secondary sources. There is no uniformity about which judgment does the basic spade work – background, statement of legal principles, breaking the rules into elements for better analysis, background such as history, statement of the issue and identification of the meanings of an ambiguous provision. There is an argument that this should be in a statement at the front of the case that the appellate judges prepare jointly.
2. Legal reasoning. There is no agreed method of legal reasoning. Moreover the subject itself receives sparse treatment. To illustrate the Australian rules require courts to interpret statutes by reference to their policy (the object and purpose of the statute). Law schools generally do not include policy analysis on the syllabus. By and large they also ignore ambiguity. Then people complain that judgments are hard to read! It is sad that a hardworking and dedicated group of talented people such as our judges are not trained for the tasks that they have to perform. [I can add as per Professor William Twining’s common pitch another problem – that analysis of proof of facts for the most part graces the syllabus of our law schools only by its absence.
Christopher Enright
The Canadian Citation Committee of the Canadian Judicial Council revised the The Preparation, Citation and Distribution of Canadian Decisions in 2009. Page 5 of the pdf (labeled page 2 in the document) shows the elements and sequence that is supposed to be represented in all decisions of all courts. I am really surprised that ONCA is not following these rules.
Simon, I’m glad I’m not the only one having some fun with this. FYI, I tried the link to your version but it would not work for me.
One thing I notice about the court’s original is how the paragraph numbers interfere. In the current, double spaced format with the paragraph numbers at the left margin, the paragraph breaks are obscured. The opinion is one long block of undifferentiated text.
I understand the numbers might be necessary for purposes of later citation. But a better way, in my view, would be to have shorter text lines, not double spaced, and then have the paragraph numbers in a scaled down font outside the margins so they would not interfere with the eye’s search for paragraphs and breaks in the text.
Cheers,
KMG
Hi Kendall. Sorry you’re having trouble with the link. I’ve double-checked and it’s working fine as far as I can tell. If you’re still having trouble, email me or DM me @fodden to let me know what you’re getting. The link is to a PDF stored on Slaw’s server.
You’ll see that in applying your choices I’ve arrived at a narrower column, making reading easier. And I like your idea of hanging paragraph numbers out to the left—would love to have them linked too, so you could spot link into the decision.