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How Judges Decide Cases


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Introduction 1 HOW JUDGES DECIDE CASES 1.1 Judicial transparency 1.2 The mechanics of fact finding 1.3 Questions of weight in fact finding 1.4 Evidence on oath 1.5 The dilemma of impression 1.6 Menschkeit and judicial civility 1.7 Conscious and unconscious bias 1.8 Decision-making in interim applications 1.9 The exercise of judicial discretion 1.10 Decision-making by tribunals 2 THE APPELLATE JUDGMENT 2.1 Appellate courts and tribunals 2.2 Decision-making in the Court of Appeal 2.3 Dissent 2.4 The appeals and appellate committees of the Supreme Court 2.5 Delivery of Supreme Court judgments 2.6 Decision-making by the appellate committee 2.7 The appellate committee and judge-made law 2.8 Judicial Committee of the Privy Council 3 WRITING JUDGMENTS, DECISIONS AND AWARDS 3.1 Delivering and writing judgments 3.2 Preparation 3.3 Judgment in the lower courts 3.4 Judicial training 3.5 On finding facts 3.6 On addressing the loser 3.7 On the task in hand 3.8 On the issue of credibility 3.9 On the use of language 3.10 On using counsel's written submissions 3.11 Personal views on framework 3.12 Civil fast track 3.13 Family cases 3.14 Master's or district judge's application 3.15 High Court trial 3.16 Arbitration 3.17 Writing tribunal decisions 3.18 A general approach 3.18.1 Identify the issues 3.18.2 Finding the facts 3.18.3 Telling the tale 3.18.4 Setting out the law 3.18.5 The parties' submissions 3.18.6 Stating the conclusions 3.19 Majority decisions 3.20 Interlocutory rulings and orders 3.21 Model decision-writing for tribunals 3.22 Writing appellate judgments 3.23 Appellate tribunal awards 3.24 Court of Appeal judgments 4 READING JUDGMENTS 4.1 Basic principles: focus and time 4.2 Focus 4.3 Time 4.4 Inspectional reading 4.5 The mechanics of analytical reading 4.6 Form and structure 4.7 Preparing an analysis 4.8 Classification 4.9 Interpretation 4.10 Deconstruction 4.11 Syntopical reading 5 THE USE OF LANGUAGE IN JUDGMENTS 5.1 The choice of judicial language 5.2 Linguistic analysis 5.3 The use of words 5.4 The structure of sentences 5.5 The language of lawyers 5.6 Contemporary vocabulary and social change 5.7 Dealing with technical and specialist vocabulary 5.8 The residual use of legal Latin and French 5.9 Literary style in judgments 5.10 Judicial literary techniques 5.11 Imperative and declarative sentences 5.12 The compressive metaphor 5.13 The elegant variation 5.14 The factual allusion 5.15 The literary allusion 5.16 Simplification of ideas 5.17 Other techniques 5.18 The impact of distinctive judicial literary style 6 ANALYSING JUDGMENTS: REASONING, ARGUMENT AND LEGAL LOGIC 6.1 Reasoning, argument and legal logic 6.2 Locating the arguments 6.3 Units of reasoning 6.4 Finding the solution 6.5 The domestic approach 6.6 Judicial reasoning and the role of persuasion 6.7 Distinguishing grammatical and logical interpretation 6.8 Positive judicial argument 6.9 Aids to reasoning 6.10 The judge and the expert 6.11 The use of precedent 6.12 Precedent and reasoning 6.13 At the coal face: trial judges 6.14 Distinguishing your judgment 6.15 Ratio and obiter 7 ANALYSING JUDGMENTS: TECHNIQUES FOR CRITICISM 7.1 Criticising a judgment fairly 7.2 Analysing your disagreement objectively 7.3 Distinguishing between knowledge and opinion 7.4 The focus of your criticism 7.5 The mechanics of fair criticism 7.6 Uninformed 7.7 Misinformed 7.8 Illogical 7.9 Incompleteness 7.10 The structured critique 8 USING LAW REPORTS 8.1 Fundamentals and difficulties 8.2 The functionality of law reports 8.3 Accuracy in law reporting 8.4 Editorial anomalies Bibliography

About the Author

Andrew Goodman is a barrister practising in professional indemnity, disciplinary and regulatory claims and in commercial, property and administrative law. He writes and lectures extensively on a range of subjects and is a Bar Council mediation advocacy trainer.

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