Unit Five Judicial Reasoning and Decision Making
A National Curriculum
Rationale
Giving reasoned decisions is the essence of the work of a judge. Professional development activities should help judicial officers to deliver oral judgments and write well-composed judgments. Part of the judicial role is also to give directions to juries. Although this does not involve the judicial officer in making a decision, it does involve the judicial officer giving the jury the means whereby it might make a correct decision.
A National Curriculum
Application of the Core Dimensions
Substantive and Procedural Law
Programs in this unit may cover the legal principles underlying judicial decision making (eg relevant administrative law principles, evaluating the relevance and weight of evidence)
Judge Craft Skills
Programs may cover strategies for delivering effective oral and written judgments; managing workload to avoid backlog of reserved decisions;
Attitudes and Values
Programs may cover unconscious biases and how to mitigate their effects when making decisions
A National Curriculum
Core Judicial Qualities
- Independence
- Impartiality
- Fairness
- Accountability
- Efficiency
- Transparency
- Competency
- Integrity
- Courage
- Compassion
Independence
The courts remain independent of the other branches of government and judicial officers are not subject to improper pressure or influence when making decisions.
Impartiality
This requires ‘treating like cases alike; a process which is free from coercion or corruption; ensuring that inequality between the parties does not influence the outcome of the process; adherence to the values of procedural fairness…and unbiased neutral decision making
Fairness
Being patient and respectful, allowing litigants to present their case and ensuring the absence of actual or perceived bias
Accountability
open court principles, annual reports identifying expenditure, rights to appeal, as well as giving reasons, noting the variation in this value for those in leadership roles.
Efficiency
Ensuring the reasonably timely resolution of cases.
Transparency
Maintaining an open rather than closed court as far as possible and providing clear and reasoned decisions that are publicly available as far as possible.
Competency
Having sound knowledge of the relevant law and procedure as well as good court craft skills
Integrity
Displaying intellectual honesty, respect and placing the obligations of judicial office above personal interests both inside and outside the courtroom.
Courage
Doing justice according to law irrespective of the consequences or popularity of the decision
Compassion
Compassion involves recognising the suffering of others and wanting to alleviate it. Within the constraints of the law, judicial officers can show compassion through procedural fairness, judicial engagement (exploring underlying issues and empowering a party to address them) and other therapeutic jurisprudence practices.
A National Curriculum
Judicial Learning Units
Aim
These programs help judicial officers to make informed and sound decisions both during the course of a matter before the court and in the process of preparing a judgment or directions to a jury.
Scope
These programs could encompass –
- A logical process for effective decision-making
- Decisions on factual issues
- Decisions in interlocutory and routine matters
- Using decision-making powers to deal with dilatory practices in the courts and to ensure cases are disposed of expeditiously
- Research as part of the process of decision-making
- Evaluating the relevance and importance of evidence
- Understanding the impact of personal values and cultural belief systems on decision-making.
- Tone, audience and narrative in judgment writing and oral decisions
The Judicial Role
The primary focus of these programs is the judicial role to make decisions and give reasons for decision, both written and oral. A secondary focus is the judicial role to manage efficiently the cases before them, the court room and the work which takes place outside the court room.
Judicial conduct and ethical issues may arise.
Aim
These programs help judicial officers to form judgements about the value, weight and credibility of evidence and of witnesses.
Scope
These programs could encompass –
- Evaluating the evidence of witnesses as to its credibility, weight and relevance
- Properly expressing the evaluation of witnesses for the benefit of appeal courts
- Unconscious bias and assessments of witness credibility
The Judicial Role
The primary focus of these programs is the judicial role to make decisions and give reasons for decision, both written and oral. A secondary focus is the judicial role to manage efficiently the cases before them, the court room and the work outside the court room.
Judicial conduct and ethical issues may arise.
The judicial role of understanding the relationship between the judiciary and society and of changes in society could be a focus as the evidence or witness being evaluated may come from a particular social context.
Aim
These programs help judicial officers to prepare and deliver an oral judgment.
Scope
These programs could encompass –
- When an oral judgment may be appropriate or necessary, and how to choose when to use it
- The benefits and disadvantages or oral rather than written judgments
- The elements and structure of an effective and appropriate oral judgment
- Preparing for an oral judgment, before and during a hearing
- Use of templates or checklists as an aid to oral decision delivery
- Short form reasons
- Avoiding common errors made in an oral judgment.
The Judicial Role
The primary focus of these programs is the judicial role to make decisions and give reasons for decision, both written and oral. A secondary focus is the judicial role to manage efficiently the cases before them, the court room and the work outside the court room.
Judicial conduct and ethical issues may arise.
Aim
These programs help judicial officers to prepare and write a judgment.
Scope
These programs could encompass –
- An appreciation of the 8 C’s of judgment writing – clear, concise, comprehensive, coherent and convincing, confident, compassion and courage
- Reasons for written judgments in relation to the different courts, and audiences to whom they are addressed
- A structure for written judgments
- Consideration of pitfalls in writing judgments and what not to include
- Language and written style
- Short form reasons
- Managing reserved judgments
The Judicial Role
The primary focus of these programs is the judicial role to make decisions and give reasons for decision, both written and oral. A secondary focus is the judicial role to manage efficiently the cases before them, the court room and the work outside the court room.
Judicial conduct and ethical issues may arise.
Aim
These programs help judicial officers to prepare and write a judgment when sitting on an appeal.
Scope
These programs could encompass –
- The advantages and disadvantages of joint judgments
- Ex tempore judgments
- Written judgments
- Managing reserved judgments.
The Judicial Role
The primary focus of these programs is the judicial role to make decisions and give reasons for decision, both written and oral. A secondary focus is the judicial role to manage efficiently the cases before them, the court room and their work.
Judicial conduct and ethical issues may arise.
Aim
These programs help judicial officers to value businesses and other assets and reach a realistic assessment on a proper accounting basis of economic losses in the future.
scope
These programs could encompass –
- Relevant legislation and common law principles
- The various types of cases where litigation accounting is required, eg. resumption cases, personal injuries and contracts cases, family law cases
- Calculations of damages in relation to the future
- Discounting rates
- Calculation of damages for loss of services
- Calculation of damages for possibilities
- Valuing businesses and other assets
- Detecting fraud
- Unravelling complex corporate structures.
The Judicial Role
The primary focus of these programs is the judicial role of making decisions and giving reasons for decision, both written and oral.
Judicial conduct and ethical issues are unlikely to arise
Aim
These programs help judicial officers to assess damages, including being aware of recent developments.
Scope
These programs could encompass –
- Review of recent decisions
- Punitive damages
- Consequential loss
- Role of the expert in the assessment of damages.
The Judicial Role
The primary focus of these programs is the judicial role of making decisions and giving reasons for decision, both written and oral.
Judicial conduct and ethical issues are unlikely to arise.