What is the 'it'?

What if one day, while you were proofing a judgment, it dawned on you that the judge had misread a legislative provision? They hadn’t just described it badly, or in a way that was ambiguous or unclear; they had got it wrong.

That’s a tough one. It’s not your job, in proofing a judgment, to tell the judge they don’t know the law. But, to the extent that a misdescription of a legislative provision is a “mistake”, maybe it is your job.

What I would suggest you do, and what I in fact did when I found myself in this situation, is think long and hard. Are you sure the judge has misread the provision? Are you sure you aren’t the one who is wrong? You would want to set the bar pretty high, I would have thought.

Here is what I did. I had an argument with myself. I went over the wording of the judgment and the wording of the provision several times. I convinced myself that the judge was wrong, and that I had no choice but to roll the dice. I put as good a case as I could. I have never made as much use of the words “with respect”.

After an excruciatingly long silence, the judgment came back to me. The judge had reworked their references to the provision – not a wholesale rewrite, but enough that nobody would suspect that an earlier version of the judgment had been in error.

A result, then. Nevertheless, I am troubled. Should I have said anything? Calling a judge out on the law is so far above my pay grade that it has probably left the atmosphere. The scope for ending up with egg on my face was huge. (A little knowledge can be a dangerous thing. I think I say that in the book.) On the other hand, I am quite sure that if the judgment had gone out as drafted it wouldn’t have been long before someone got in touch with the Court to point out the error. That would have necessitated a correction to the judgment, which is never fun. I wouldn’t have been attributed with the blame, the law being the judge’s department; but I would have been overcome by a nasty case of the If Onlys. So, on balance, yes, I think I did the right thing by the judge by raising it.

Would I do it again? As the Butthole Surfers once intoned, it’s better to regret something you have done than to regret something you haven’t done. Which is not to say you shouldn’t proceed with caution.