What is the 'it'?

May years ago, one of our boys came home from primary school with an important announcement: someone in their class had used “the C word”.

We were somewhat taken aback by this. There was no conversation that could come out of it which we were anywhere near ready to have. So it was with a (heavily disguised) sense of relief that we greeted the next bit of the story: “the C word”, it turned out, was “crap”.

“Oh, that’s terrible!”, we said. “We’re sure that you would never do that!”, we said. As we smiled quietly to ourselves.

Thus was the innocence of youth retained, at least for a little while longer.

I was reminded of this a few days ago when I was out on a lunchtime walk and idly musing on the question of how I might tell the story that the book tells in a slightly different way.

It was not so long ago that three-word slogans were in vogue, and I soon found myself playing around with sets of three words to describe what proofing is all about. And I landed on three “C” words. No, not that one. Not that one, either.

Correct.

Clear.

Consistent.

When you are proofing a judgment, those are the three things you should be aiming for. They are the gold standard.

“Correct” is, obviously enough, the most important. You certainly don’t want your judge saying something that is wrong. But “correct” covers a wide range of judicial sins, from misspelling somebody’s name to writing a sentence that has one too many negatives, so that it says the exact opposite of what the judge was intending to say.

“Clear” comes next. You don’t want your judge publishing something that might be misunderstood, or which could be read in more than one way. If a sentence can plausibly be taken to be saying two different things, one of which would be right and one of which would be wrong, there is always a chance that a reader will grab the wrong end of the stick. In this way, “clear” can bleed into “correct”.

As a general rule, a sentence – in a judgment, yes, because that’s what we are talking about, but, really, in any piece of writing – should have only one plausible meaning; and, ideally, it would only take the reader one run through the sentence for that meaning to reveal itself. (This is not to discount entirely the possibility that a judge might compose something that is purposely ambiguous, in order to give themself, or some future judge, room to manoeuvre. This is one of the many things I have learnt the hard way.)

Even conceding that the law is a complex beast, your judge should be capable of writing sentences with that level of clarity, even if, on occasion, they might need your help – not because your judge is an idiot, but because they are so close to what they have written that they might not be able to see what is right in front of them: missing the wood for the trees, as they say. The judge knows what they are wanting to say; they may not notice that they could potentially be understood as having said something quite different.

Often enough a sentence that is unclear will eventually reveal its intended meaning. But the more times a reader has to read a sentence in order to make sense of it, the more likely that it is the sentence, and not the reader, that is the problem – and the more likely that the reader will end up misunderstanding the sentence.

“Consistent” is necessarily the lesser of the C words. But consistency isn’t to be discounted. Sure, clarity and correctness are unlikely to be put in jeopardy just because your judge is unable to control their hyphens or their use of capital letters. The extent to which you are able to engage with matters of consistency of style is likely to depend on how much time you have – which will rarely, if ever, be enough. But, given that to proof a judgment properly you have to engage with every word in it, you might be able to tidy up a lot of style issues as you work your way through – as long as you know what you are looking for. (The book includes an entire chapter on style. Hint, hint.)

Sometimes, a more substantive consistency question can be in play. Judges often resolve a complex idea (or multiple ideas) into a concise string of words which the judge will then deploy across the judgment. With repetition, the reader will come to understand what those words are communicating. You may find, however, that the judge has at some point varied the expression in some way, or left a word or two out, or even included some additional words. I would encourage you to be alert for these differences in wording, and, when you come across one, to ask yourself whether the judge is intentionally using different words in order to convey a substantively (albeit possibly narrowly) different idea, or whether they are just saying the same thing using different words. And, if it is the latter, I would encourage you to consider whether this is likely to be helpful. Readers of judgments tend to be close readers, and a difference in wording from what has been used elsewhere in the judgment may well allow that kind of reader (who could be another judge, or an advocate) to seek to make forensic use of the variation in wording, when in fact no difference was intended. In this way, “consistent” can bleed into “clear”, and perhaps even into “correct”.

Anyway, there you have it. Correct. Clear. Consistent. The C words of proofing. Forget “What is the ‘it’?”; that would be an eye-catching title for a book.