Principles of Clear and Persuasive Communication

WHY ARE YOU TELLING ME ALL THIS? The problem with communication is the illusion that it has been accomplished. George Bernard Shaw SOAR Conference on Access to Justice November 2014

Chief Justice McLachlin Judgment writing at its simplest is an attempt to communicate A judgment that does not communicate is a failed judgment, no matter how learned or gracefully phrased.

Justice Binnie Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts. 3

Why do we write reasons? Tell the parties affected by the decision why the decision was made Provide public accountability: justice is not only done, but is seen to be done Permit effective appellate review Sometimes it just won t write

To communicate you must know your audience The key to successful gardening is thinking like a plant It s the same for judging

Whom do you write for? Many audiences? My two important audiences My next door neighbour The losing party: the most important person in the courtroom is the losing party (Megarry) Do you really think about your readers when you write?

What do all your readers want? CLARITY The sovereign virtue for the judge is clearness (Cardozo) Accessibility and clarity go hand in hand

Focus of my talk The two most important principles of clear and persuasive writing Context before details Point first

What are context and point ? CONTEXT: what should I look for and think about What the details are about Why the details matter What the are the issues to be decided POINT: where are you heading Your finding of fact or credibility Your conclusion on an issue

The persuasive power of context and point first Decision writing typically contains a lot of details Readers will grasp the significance of these details only if they have a context for them Principle: give the context before the details Secondary principle: write point first

Writing clearly about complexity Substantive clarity Clarity in your head Cognitive clarity Clarity in your readers heads Cognitive clarity Always context first Usually, but not always, point first

The goal of cognitive clarity: create smart readers Make readers smart enough to grasp what they are about to read before they read it.

How do you make readers smart enough? Context: what should I look for and think about? A point: where are you heading? [A logical structure: have you presented the information so that its form meshes with its substance?] READERS WANT ALL THIS THROUGHOUT YOUR WRITING, NOT JUST AT THE BEGINNING

Cognitive science Readers absorb and retain detailed information better when they first know why it matters and how it is relevant When they have a context (or container) for it When they know the point of the detail They read more efficiently They read faster They retain and understand more

Example: s. 11(b) of the Charter (Crown) To determine whether an applicant s right to be tried within a reasonable time has been infringed, I must take account of four factors: length of the delay, any waiver of the time period, reasons for the delay and prejudice to the accused .[CONTEXT]

On the fourth factor, prejudice, I find that the accused suffered minimal prejudice from the delay. [POINT] The accused did not lead any evidence of actual prejudice. The accused s liberty interests were marginally prejudiced. He was released on bail two days after being charged. His bail terms were not onerous, except for a curfew of 8:00 pm to 6:30 am. He never sought to vary or do away with this curfew. The accused s actions suggest that he did not want a speedy trial. Three times proceedings had to be adjourned because the accused did not appear in court [DETAILS] I therefore conclude that the accused s motion under s.11(b) should be dismissed. [OVERALL POINT]

Context before details and point first When you are about to dump a lot of details on your readers, first give the context and, if appropriate, the point of the detail The combination of context and point first usually gives your readers the best chance of grasping detail

But: Context first is mandatory Point first is discretionary

Example: from details to point last The Report of 17 February 2007 contained an obvious error. Upon discovery of the error, the Minister withdrew the Report under Rule 5(2) of the ID Rules. The withdrawal occurred before any hearing took place or any evidence was received. The Federal Court of Appeal in M.C.I v. Sheremetov 2004 FCA 373 acknowledged that where no substantive evidence has been accepted in the proceeding the request for the withdrawal is not subject to a consideration by the Immigration Division of the merits of the withdrawal request. Therefore, it was completely within the Minister s discretion to withdraw the Report of 17 February 2007.

Context first; point last Did the Minister have the discretion to withdraw the Report of 17 February 2007? The Federal Court of Appeal has ruled that a Report may be withdrawn from a proceeding as long as no substantive evidence has been accepted; see M.C.I v. Sheremetov 2004 FCA 373. In the present case the Minister discovered an obvious error in the Report and withdrew it under Rule 5(2) of the ID Rules before any hearing took place or any evidence was received. Thus, I conclude that the Minister had discretion to withdraw the Report. 20

Context first; point first The issue in this case is whether the Minister had the discretion to withdraw the Report of 17 February 2007. I conclude that he did. The Federal Court of Appeal has ruled that a Report may be withdrawn from a proceeding as long as no substantive evidence has been accepted; see M.C.I v. Sheremetov 2004 FCA 373. In the present case the Minister discovered an obvious error in the Report and withdrew it under Rule 5(2) of the ID Rules before any hearing took place or any evidence was received. 21

The message: context first, details later Your readers are always asking you: Why are you telling me all this? We don t read passively You are always introducing Always create contexts or containers Don t write like Michael Connelly

Many lawyers (and judges) write like this: Details Context (if at all) Point or submission

To create smart readers, write like this: Context (or a container) Point (usually) Details Point reiterated or applied

Why is it hard for lawyers to write context first? Legal training enforces a model of legal thinking What are the facts? (Details) What is the law? (Details) How does the law apply to the facts? (contexts emerge) Legal tradition makes legal thinking the basis for legal writing from details to contexts Assumption: legal writers are writing mainly for legal readers, who already have contexts embedded in their minds from legal training The problem: outside readers always need contexts first The opportunity: even legal readers understand more readily with contexts first 25

Applications of context first and point first Introduction or overview Facts or evidence Argument Headings and sub-headings Quotes

Templates Many tribunals have them If yours doesn t, develop your own Advantages Easy way to deal with recurring kinds of cases: fill in the blanks Predictability for your main audiences Warning: be prepared to deviate One size does not fit all 27

Write an introduction What is this case all about? The first page says it all I was taught that you told people what was going on in the first paragraph. (Pierre Berton)

Three key ingredients Claim: who wants what from whom Precise or deep issues A little story to put the issues in context Simplify: save the details for later

Why in an introduction important for your readers? Readers need help to grasp complex information They need that help before the information begins to flow A good introduction creates smart readers Context for the detail in the rest of your decision

OHRC Betty Parker worked for Ottawa Systems Consultants from 2007 until she was let go in 2013. From 2011 until 2012 she was required to take disability leave because she was diagnosed with a bipolar disorder. She claims that in ending her employment the company discriminated against her because of her disability. She has filed a complaint under the Ontario Human Rights Code.

Ottawa Systems Consultants asks to dismiss this complaint. The company acknowledges that it released Ms. Parker because of her disability, but contends that she was incapable of performing her job, and that it could not meet its duty to accommodate her disability without incurring undue hardship. Accordingly, Ottawa Drugs contends that it has not engaged in discrimination under the Code. The question I must resolve is whether Ottawa Systems Consultants has met its onus to show that, because of health and safety requirements, accommodating Ms. Parker s disability would cause it undue hardship.

Identify the deep issue The deep issue: a useful term coined by Bryan Garner With what level of detail or precision are you going to state the issue you must resolve?

The definition of a deep issue The ultimate, concrete question that you need to answer to decide a point The final question you pose when you can no longer usefully ask: And what does that turn on? 34

A simple example: criminal case A charge of sexual assault where the complainant and the accused agree that they had sexual intercourse The ultimate question: Is the accused guilty of sexual assault? And what does that turn on? Has the Crown proved beyond a reasonable doubt that the complainant did not consent to the sex? The deep issue Useful technique: exclude what is not in issue

Another example: a claim of discrimination The issue is whether, in terminating Betty Parker s employment because of her disability, Ottawa Systems Consultants discriminated against her. And what does that turn on ? 36

Ottawa Systems Consultants terminated Betty Parker s employment because of her disability. It claimed that she was incapable of performing her job. The issue is whether the company was justified in releasing her because it could not accommodate her disability without incurring undue hardship. And what does that turn on ? 37

The issue is whether Ottawa Systems Consultants can show that accommodating Betty Parker s disability would impose undue hardship because of safety and cost requirements. The deep issue The word because can often help you define the issue more precisely

A good introduction will make you a better writer Helps you focus on the questions you must decide Helps you structure the rest of your decision, using the issues

Use plain and simple language Engage your readers; don t turn them away The readers question: will you speak my language or will I have to endure yours? Postpone the technical detail

Example: Before This is an appeal against a reassessment made by the Minister of National Revenue on September 12, 2010 , whereby the appellant was denied a deduction in the amount of $1250 as moving expenses in computing her income for the 2009 taxation year, pursuant to section 62 and the definition of eligible relocation in subsection 248(1) of the Income Tax Act. The relevant provisions of the Act provide...

Example: After The appellant Alexis Smith lives in Sudbury with her husband and two sons. In 2009 she took a three month position with the CIBC in Vancouver. Her family stayed behind in their home in Sudbury. For the 2009 taxation year, Ms. Smith claims a deduction for moving expenses for the cost of her airfare to Vancouver, $1250. The Minister reassessed her income and denied the deduction. Ms. Smith appeals.

Ms. Smith is entitled to deduct her travel costs under s. 62 of the Act only if she was moving from an old residence to a new residence to enable her to take the job with the Bank. The issue on this appeal is whether the air fare expense related to a change in residence or was simply an incidental cost of travelling to a temporary workplace.

Facts and evidence Context before details is especially important in your review of the facts or the evidence You are dumping a lot of detail on your readers Facts have no meaning without a context for them As you move from section to section, topic to topic, start with context

What you have to avoid Long, unbroken chunks of text One thing after another No road signs

Motion to exclude evidence: no context At approximately 4 p.m. On December 7, 2000, O.P.P. Constables Charles Jones, Ronald Brown and David Green, accompanied by Crown Attorney Frank Smith, went to Torrance s home located at 2156 Keele Street, Toronto. A search of the premises was conducted resulting in the seizure of a brown calendar book and a red notebook from Torrance s bedroom.

Torrance had developed as a prime suspect in a homicide that occurred that afternoon. That fact led the O.P.P. to his residence. At trial, Constables Jones and Brown and Torrance s father testified about what happened in the Torrance residence

Jones stated that Brown was in charge, and that upon arriving at the front door, they were greeted by Torrance s mother. Brown asked permission to search the house for Torrance. She allowed them to enter the house, but asked that they wait for the arrival of her husband. Brown s version of the initial contact is similar. There is no question that the purpose of the constables visit was to determine if Torrance was in the house. Brown also told her that Torrance was a suspect in the homicide case and that the police wasted to search the home for Torrance. The police officers and Mrs. Torrance waited...

Some context first Torrance seeks an order excluding evidence seized from a drawer in his bedroom by O.P.P constables who searched his parents home where he lived. At approximately 4 p.m .

Sharpen the context Torrance seeks an order excluding evidence seized from a drawer in his bedroom by 0.P.P. constables who searched his parents home, where he lived. Torrance claims that the search and seizure were unreasonable contrary to section 8 of the Charter, and that the materials ought to be excluded under section 24(2).