OPINION
Tuesday, November 23, 2015 7
Judges Gonna Judge
The importance of a memorable judicial writing style
nadia aboufariss › contributor
J
udge Gail Standish, a former intellectual
property lawyer and current district judge in
California, made headlines last week with her
dismissal of a copyright claim against Taylor
Swift’s “Shake it Off.” Swift was being sued for $42
million in damages by musician Jesse Braham, who
claimed that the repetition of “players gonna play,”
“haters gonna hate,” and “fakers gonna fake,” came
directly from a song that he wrote in 2013 (entitled
“Haters Gone Hate,” of course). In her dismissal,
Judge Standish quoted not one, but four different
Taylor Swift songs, incorporating the lyrics into the
reasons for her judgement, with hilarious lines such
as “...for now we’ve got problems, and the Court is
not sure Braham can solve them.” She also made reference to Urban Dictionary and a 3LW song from
2000 named “Players Gon’ Play.”
movement away from bureaucratic jargon with the
Plain Writing Act, signed by President Obama in
2010, which requires federal agencies to use language
that “the public can understand and use.”
A memorable and clearly written decision is not
only important to students and practitioners of the
law—who need to be able to use the law effectively—
but also to other players in the judicial system,
namely, the plaintiffs and defendants that have every
right to read and understand the verdicts in their
cases. To illustrate the impact of a strong narrative
in judicial writing, I thought I’d go over a decision of
everyone’s favourite “judge of the people,” as well as
a more recent case from earlier this year that was so
powerful I will never forget it.
I’m pretty sure Lord Denning occupies a special
place in almost every law student’s heart, and his
decisions—love them for their down to earth language (and utter disregard for the common law) or
balls were being launched into the property during
practices and matches. I remember exactly where I
was sitting in the library when I read it for the first
time, sighing very loudly numerous times. It was
that time of year where I was so stressed and burdened with schoolwork that the idea of a judge using
his love of cricket to inform his decision made me
furious. I had enough to deal with! But looking
back, I absolutely love the case, and most of all, Lord
Denning’s use of language to tell a story. Not only
because creative writing such as this helps one to
remember the facts, but also because, in all honesty,
I would probably write a similar decision if the sport
in question was baseball. Lord Denning took what
was a relatively straightforward torts case on negligence and nuisance and really made it into something special. Most memorable line: “The animals did
not mind the cricket.”
Plain language in a judicial decision can also be
used to show empathy and compassion towards
offenders. On 11 February 2015, Justice Nakatsuru
of the Ontario Court of Justice wrote his decision in
a case called R v Armitage. Regarding precedent, in
what might not be the most important or prestigious
case, I hope it does become an influential one, due to
the judge’s use of poetic language and consideration
towards those reading his decision. Jesse Armitage
is an aboriginal man who was a repeat offender,
often getting into a pattern of stealing money and
goods from stores and restaurants. His grandmother
was an Indian Residential School survivor, and he
ran away from home at 15. His troubled life clearly
spoke to Justice Nakatsuru, and in response, Justice
Nakatsuru spoke to him, directly, in his decision. He
starts out early by saying, “In this case, I am writing for Jesse Armitage,” and later goes on to describe
him as “a tree, whose roots remain hidden in the
ground.” I can’t do it justice—if you have a moment,
and are interested in criminal law, aboriginal law, or
even just plain good writing, I suggest you read it.
It’s not long. But don’t blame me if something gets in
your eye afterwards. ◆
ê Photo credit: Playbuzz
What I found fascinating about this case was not
the seemingly frivolous lawsuit, but the amount of
press the dismissal received. Judge Standish’s use
of common language and (gasp!) puns, caused nonlawyers to read a judicial decision. Numerous people
who generally couldn’t care less about legal issues
were all of a sudden tweeting, posting, and tagging
her dismissal.
Traditionalists
m ay s ay t h at
judicial decisions
are no place for
com monal ities
and Taylor Swift
quotes, but I respectfully disagree. Making court
decisions more accessible to the average person
is something to be praised, and judges should be
encouraged to spare the legalese and instead tell a
story. The United States has attempted to start the
hate them for their obsession with cricket (and utter
disregard for the common law)— are, at the very
least, among the most memorable that anyone reads
in 1L. Personally, I was pretty pissed off at him by
the time I was writing my first law school exams,
but his personal style has been influential in judicial decisions ever since he first sat on the bench.
One of his lasting
legacies is his use
of actual names,
as opposed to the
titles “plaintiff”
or “appellant.”
Miller
v
Jackson, one of the all-time great Lord Denning
decisions, starts out with “In the summertime village cricket is the delight of everyone.” In case you
haven’t read it, a homeowner was seeking an injunction on a cricket ground, due to the fact that cricket
“Making court decisi