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You can’t write a good statement if you have not made a sound decision

TRANSCRIPT

Make It Make Sense

What is the job?

To decideTo communicate

You cant write a good statement if you have not made a sound decision

Good decisions must be communicated effectively

Effective communication is the bedrock of the legal process

Equal Treatment Bench Book, published by the Judicial Studies Board

Making good decisions involves:

Sound preparation

Recognising issues

Weighing all the relevant evidence

Good fact-finding

And

Authority

Obstacles

lack of clarity as to the factsconflicts of evidence

That moment of bewliderment when they leave the room and the various different versions of their case are swirling in you rhead.

We need 2 things

Clarity of thought

Clarity of expression

Is there a

house style?

The CLASSIC JUDICIAL STYLE

IssuesEvidence Findings of FactLawSubmissionsReasons

CHEAP AND CHEERFUL

Findings of Fact(Decision) Reasons

1996

Which would I take to a desert island?

FINDINGS

OF FACT

You cannot apply the law without knowing the facts of the case

YOU HAVE TO DECIDE THE FACTS FIRST

Story

A JOINT PROCESS OF DECISION MAKING

You have to be sure you all agree the facts of the case before you reach a joint decision.

In agreeing the facts, telling the story, you are forced jointly to address the conflicts in the evidence

She says she can walk 0 metres without severe discomfort

The EMP says she can walk 200 metres without severe discomfort

The GP says pain and difficulty on walking

Whats the story?

She used to walk to the surgery 5 mins awayHasnt for the last yearStill goes to the neighbour- 2 doors down. Sits in the car while her son does her shoppingMoved bedroom downstairs cant do stairs. Pain management difficult

She is virtually unable to walk

Why?

Wholly credible accountConsistent with diagnosis, treatment, range of activityEMP thought she was still walking to the surgery.

You cannot apply the law without knowing the facts of the caseYou have to be sure you all agree the facts before you reach a joint decision. In agreeing the facts, telling the story, you are forced jointly to address the conflicts in the evidence

And

Agreeing the facts properly will get your statement half written even before you give the decision.

And

In a complex case, your draft findings, prepared in chronological order, are an essential tool for your analysis and your questioning

What are facts?

This is not a stupid question

Lightbulb moment for accountant

Question from a New Judge

What are facts?

Simple, descriptive statements

Circumstances Incidents

Details Information

Events Items

Factors Particulars

FeaturesSpecifics

History

The Actualit

Reality

Factuality

Certainty

Truth

Whats the missing link?

INFERENCE

To deduce

To derive from what has gone before

To arrive at a logical conclusion

The art of drawing a conclusion from statements of fact

Summary or Conclusion of Fact

She has made substantial adaptations and compromises because of pain on walking

Inference

Any walking beyond a few yards is only achieved with severe discomfort.

Conclusion applying the law

She is virtually unable to walk

Every step I take is agony

Every Step I take is Agony

Cant now walk to the surgery as he used. Takes the dogs to the park, but sits once there.The entrance is 4 500 metres away. He likes browsing round garden centresHe meets his children at The Mall, and they go to the games shop.

Summary or Conclusion of Fact

He is still relatively mobile in spite of discomfort

Inference

His pain and discomfort do not amount to severe discomfort on walking very limited distances

Conclusion applying the law

He is not virtually unable to walk.

Facts are descriptive.

Conclusions are in the terms of the regulations.

What goes where?

Findings of Fact - Facts - in chronological order

Reasons - Conclusions and why you reached them

Inferences and explanations of how you reached your facts?

How do you write the Reasons?

How you found the facts

How you applied the law to the facts

Reasons

Address each issueSubheadingsLogical analysisLead up to each conclusion Always reflect the statutory test in the conclusion

Refer to submissions

Include reference to or explanation of the law where you judge it necessary in complex cases, to address misunderstandings

Check you have explained why the next higher test or descriptor is not met

Dont forget

If you are not awarding at a rate that was previously awarded, you must explain why. If it is a majority decision, you must give the minority reasons. If you remove an award, you must give reasons.

Include procedural points -

Why you proceeded on the papers without directing an oral hearing.

Why you proceeded in absence

Paragraph Numbers

What about the evidence?

Leave it out

Do NOT Recite evidence

Refer to it in explaining what you preferred and what you rejected. That may involve a short summary or illustration.

Reciting evidence

i)confuses the reader

ii)misleads you

When you have a complex case, what you have is a muddle of reports saying different things confusing you.

Dont bring back the bewilderminet

Tell a nice clean story.

Dealing with inconsistency

Demonstrate that it is a significant inability or refusal to give an accurate account of the facts with two or three clear illustrations.

WHAT WENT OUT WITH THE BATHWATER?

Evidence - the essentials

What documents did the tribunal see? Who did the tribunal hear from?

Issues

The legal and factual questions the Tribunal has to answer

Safe to omit on a new claim But dont forget them

1Was the claim for DLA received within a reasonable longer period after the form was requested on 01 08 12, so that the date of claim is not 1 11 12 but 01 08 12?

2Does she meet the tests for this benefit?

3If so, did she meet the tests for this benefit any earlier than the date of her accident on 26 07 12 (qualifying period)?

Secretary of State Supersession

Structured Reasons

Preliminary / procedural points/issuesEvidence why appellant evidence/HCP report is source of some concernJurisdiction dates within/ supersessionBenefit headingsExtra tests for childrenFailure to continue award on renewalDuration of awardMinority reasonsPost decision changes

Remember

Findings of Fact First

Then apply the law to the facts

Use Templates

Create a library. Use them to refer to the law, to explain the law, to set out some background particulars

Never Use Templates

Never ever use them to deal with the appellant as an individual. It is the very essence of judgecraft that you deal with each person as an individual.

No Formulas

If HCP reports are independent, objective and supported by clinical findings,

we dont need Judges

Explain why evidence is preferred or rejected by content, not source

Blaming the claimant

It is the routine refuge of the weak Judge to bolster the statement with:

unexplained references to inconsistency or exaggeration or relying on trivial examplesUnsupported assertions that someone does something because they choose to not because they need toPresenting bizarre explanations instead of the simple one it hurts

You think you are on your own in there. I know what conversations went on. Purse handed to cashier neuropathy that is you failing to discuss manual dexterity properly and falling back on an inadequate explanation

Go back to the FACTS

Support your conclusions from your facts

ORAL REASONS ?

Giving reasons on the day? Do you can simply explain why the claimant did not get the award or the higher descriptor they want

Giving reasons on the decision notice? Do it matters particularly where the claimant has won to show why

STYLE

1 Headings

2 Paragraph numbers

Short, clear paragraphs

One topic at a time

Language

Language

The Obstacles

Complex area of law, Difficult language, Formality imposed by statutory tests,Tradition

We Say

You have won your appeal

We Write

The respondent has failed to show grounds to supersede the decision

Traditional legal mode of expression

formal language, complex sentence structure, densely presented

These are the things Judges do:

We proceedWe peruseWe considerWe direct ourselves We are assistedWe are precluded

While claimants.

Submit

Indicate

Assert, or

Contend

Who are we writing for?

Functional literacy levels

One in six people

in the UK struggle to read and write

(The Literacy Trust)

Deprivation, unemployment and low literacy levels make the UK one of the most poverty-stricken countries among developed nations

(UN: Human Development Indices: a statistical update 2008)

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