What is the 'it'?

According to Oscar Wilde, there is only one thing in the world worse than being talked about, and that is not being talked about. Oscar Wilde’s metrics are different from mine.

Imagine that you were a senior officer at an important public institution, and that a significant part of your job involved making sure that the institution (or, at least, any possible negative story about the institution) stayed off the front page of The Australian. It may be that the only reason anyone would turn their mind to you – other than when you were being “so annoying” or a “stick in the mud” for making sure the correct processes were followed, as a way of reducing the risk that the thing you were being paid to stop from happening might happen – would be if that thing happened. As long as you were doing your job properly, nobody would ever notice you.

Proofing judgments is no different. As long as mistakes are not appearing in published judgments, you are doing your job properly, and nobody will have any reason to give you a second thought. But if mistakes start getting through, everyone involved in the process of writing those judgments is going to be thinking about you all the time. And not in a good way.

Thus, I have learnt not to expect much in the way of praise for the largely invisible act of preventing errors in judgments from being published. In fact, if I am doing my job properly, nobody should ever have occasion to think about me at all. I am very okay with that.

It isn’t that I am concerned that I might be doing a bad job. The High Court publishes many thousands of sentences (and footnotes) each year, and in most years fewer than ten of those contain an error (or, at least, an error that has been detected 😬). But I do put pressure on myself to maintain a high standard, not least because I really don’t want people to start talking about me. I wouldn’t expect the judges I work for to ever find themselves thinking, “Stan seems to be doing a good job”. (They should have their minds on more important things.) But I also don’t want them thinking, “Stan seems to be letting a few mistakes through these days”.

You would think this would make me hyper-vigilant for anything that might require a correction to a judgment. And most of the time it does. But then – whoops – I slip on the banana peel of a blindingly obvious mistake. It’s like I sometimes forget all of the lessons and admonitions that I put in the book.

What all of this means is that each time I have to publish a correction to a judgment, I go through something like the seven stages of grief. How could I have missed that? What part of my usual processes and methodologies did I fail to adhere to? What are the “learnings”? Or – an idea that seems increasingly plausible – am I Losing My Edge?

On the other hand, sometimes I Get Lucky.

There I was, working my way through a judgment that contained multiple references to the Criminal Procedure Act. That is not an unusual thing to find in a criminal case. At one point in the judgment, I read the words “Civil Procedure Act” and, inexplicably, gave the word “Civil” – which was clearly wrong – a free pass. Equally inexplicably, but fortuitously, a few seconds later something caused me to pause, and to think to myself, “Hang on a minute.” Of course, as I already knew, it should have said “Criminal Procedure Act”. I had looked at the words “Civil Procedure Act” but, clearly, I hadn’t really looked at them. I marked a correction and moved on.

Except I didn’t really move on. The possibility that such a clear error could easily have gone past the wicketkeeper and all the way to the boundary was troubling. If the judge was capable of inadvertently writing “Civil”, and the judge’s associates were capable of not picking it up, then how confident could I be that I myself might not have walked right past the same error somewhere else in the judgment? So I did a search of the document for “civil”, and – you know where this is going – there it was, earlier in the judgment, in a passage I had already proofed, and which I had (again) signed off on as if it had said “Criminal”, even though that isn’t what it said. And that time I hadn’t given it a second thought.

The world is full of traps. Pitfalls. Minefields. Wherever you turn, whatever you are doing, danger is just one potential misstep away. It’s the same with proofing. If in life you took measures to avoid every possible unexpected negative consequence, you might end up sitting in an armchair all day staring out the window for fear of venturing outside and stumbling into an unlikely but non-zero-probability mishap. (Come to think of it, that’s pretty much how I spend my weekends.)

But a person who is paid to find errors in judgments doesn’t have the luxury of not looking for errors out of a fear that they might miss one. They might, though, allow themself some time for reflection as to how it could have been possible for them to miss such an obvious error – twice in the one judgment! – in the hope that they might learn something.

The first thing worth noting about this particular error is that there is nothing inherently unusual about seeing the Civil Procedure Act referred to in a judgment. It isn’t as if the word “civil” was going to stick out like a sore thumb bathed in neon. It’s just that it wasn’t the right word in this judgment.

This is also very much the kind of mistake that a judge could easily (albeit unconsciously) write into a judgment. The judge, too, will be familiar with the Civil Procedure Act, and might have typed “Civil” without a second thought. The judge will have been thinking about how to say what they were wanting to say about the Act and may well have just dropped an Act name into the sentence as a kind of necessary afterthought – what my good friend The Thesis Whisperer might call a “placeholder”. They thought “Criminal” but they wrote “Civil”.

And it is often the case (as it was here) that a mistake like this will appear well into the judgment, after the same thing has already been referred to – without error – several times, thus lulling everyone into a false sense of complacency. The human brain, in its mysterious quest for efficiency, will be encouraging you not to hover over this reference that you have already seen multiple times: you know what Act the judge is talking about; nothing to see here; move on.

If this had been the first time the Act had appeared in the judgment, I would surely have pounced on the word “Civil”. Likewise if it had said, say, “Civet Procedure Act”. But no. The familiar nature of the Civil Procedure Act, and its appearance in the judgment after repeated (correct) references to the Criminal Procedure Act, conspired against me.

And that, I think, is the painful nub of proofing. The obvious mistakes – the real howlers – are likely to have already been picked up by someone; they are going to stand out like a flashing neon sore thumb. When you are proofing one of your judge’s judgments, of course you are going to be on high alert for those. But you also have to be on high alert – even higher alert – for things that seem plausible but which are, in fact, wrong. That is hard. It is doubly hard when, as will usually be the case, you are juggling a number of things. I don’t just mean all of the diverse tasks your judge has set you. I also mean all of the things you were carrying in your head as you read the words “Civil Procedure Act”. If the judge has also referred to a specific provision of the Act, is it the right one? If the words are sitting in the middle of a grammatically complex sentence, does that sentence say what the judge wants it to say? Does it, in fact, work as a sentence? What is the content of that “it” over there? Maybe there’s something in the same string of words that raises a consistency question: did the judge use “subject matter” or “subject-matter” earlier in the judgment? These things can end up being mixed together into a kind of stew that you are being asked to identify all the different flavours of at the same time. It’s not entirely surprising that one of them might sneak through undetected. Especially when you are working to a tight deadline. Which you will be.

It’s all a bit of a worry, really.

What, you were expecting me to end on a positive note? Not this time. As Oscar Wilde also said, the truth is rarely pure and never simple.