SLAW Article: Revise, Revise, Revise: The Path to Good Decision Writing

Ian Mackenzie writes for SLAW

The task of a [decision-maker] is to find the golden mean, to “decant and simplify,” to synthesize the evidence and make the necessary findings; the task is not to be a court reporter.

Welton v. United Lands Corporation Limited, 2020 ONCA 322

Writing is one thing, but rewriting is the real messy thing.

William Germano, “On Revision: the only writing that counts”

Courts are very good at giving advice to administrative decision-makers on how to write reasonable decisions, but often that advice is too general. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (at para. 128), for example, the court tells decision-makers to draft reasons “with care and attention” so as to alert the decision-maker to “inadvertent gaps and other flaws in its reasoning”.

In Welton v. United Lands Corporation Limited, 2020 ONCA 322 the Ontario Court of Appeal has given more precise directions on what is expected by a reviewing court in crafting a decision. The court noted the worrying trend of longer and longer reasons. The court noted that of all the tasks of a decision maker, “simply being present to receive the evidence” is only the first step on the path to the decision. The court set out the key steps in crafting a decision (at paragraph 58):

set out the context briefly;
identify the key issues;
find the facts relevant to the issues;
assess credibility and reliability where there is conflict;
set out the chain of reasoning;
make the decision; and
write the reasons to clearly communicate the decision.

In Welton, the court described the decision it was reviewing as a “factual data dump”. The court suggested that this emerging style of decision-writing might be an artifact of electronic notetaking by judges:

…but it is not helpful and can be confusing. A blizzard of words can obscure. Digesting unduly lengthy reasons consumes far too much time because every word must be read by the parties, by their counsel at great expense, and by appellate courts. A data dump does not constitute fact-finding. It is an extended ‘note to self’ best kept to oneself because it hinders the efficient and economical communication of judicial reasoning.

As the Spartan King Agesilaus II is reported to have said about an orator’s tendency to go into tedious detail: “It is not a good cobbler who fits large shoes on small feet”. So, how should decision writers become good cobblers?

A new book on revising by William Germano (“On Revision: the only writing that counts”) aimed at the academic community provides some good (and practical) advice for decision writers. A decision is, of course, not an academic article or book. What it shares with the best of academic writing, however, is its goal of persuasion. A decision writer must persuade the parties that the end-result is the right one. If the decision writer cannot persuade the parties, he or she is left to persuade the judge on judicial review.

The key to good writing is revision. Unless it is very short, a decision should go through multiple drafts. Revision is not copy editing or proofreading. Tidying up grammar and typos is an important part of writing because it eliminates distractions. However, the structure of a decision is more important and more fundamental. The structure and flow of a decision is improved through revising.

Germano identifies the three A’s: Argument, Architecture, and Audience. Many presentations on decision writing by judges and others put the emphasis on the audience, reminding the decision writer that he or she is writing for the losing party. However, Germano points out that before you think of your audience, you need to focus on your argument and the structure (or architecture) of the document:

First, argument. Don’t get lost in the weeds. Know—really know—what you want to say about the thing you’re writing about. An argument can’t be about everything. Make it about something, and as specifically as you dare. Even if you aim to extrapolate everything from that something, you need a focus and a point. An argument is, first of all, a target.

Second, architecture. Understand the structure of the writing in front of you, think through the structure you need, and make those changes happen. Genres and fields have conventions. Know them, including the conventions for the shape of writing you’re engaged in.

And finally, audience. Be honest about the readers your writing is capable of reaching. Write for them and bring them ideas they can use.

Germano suggests printing out your draft when it is at a “fairly well-developed stage”: when you have enough to work with but you have not locked down every detail. That first draft must at least have potential – never work from a draft you hate or do not respect. Germano also suggests reading aloud what you have written to get a sense of its flow.

Like decision-makers, academics collect information (the “archive”). However, the archive is never the same as what shows up in a manuscript because that would be just writing down all your homework. For decision writers, this is the equivalent of a “data dump” – a blow-by-blow account of the hearing and the evidence. What writers need to do, Germano suggests, is “select, reveal, question, develop, arrange, even argue with material in that archive”.

Germano’s book is full of little tips and tricks that may be helpful to any decision writer. But where it excels is setting out a practical process for revision – a roadmap of sorts to get you through the revision process.

The roadmap is in the form of a “W” with each point of the W representing a different step. In this model, you track your draft by following the strokes of the “W”, doing something at each of five points of the letter, in this order:

Point l (upper left): Your opening statement, including the issue and your position on the issue.

Point 2 (lower left): The end of your decision – the conclusion.

Point 3 (center): In the “fat middle” of the W is where you have put what you need to support your argument and move the reader to the conclusion.

Point 4 (lower right): Back to the conclusion. Rewrite it so it makes sense after revising at point 3.

Point 5 (upper right): Return to the opening and adjust it.

When do you stop revising? A decision does not have to be a finely polished gem – it must just get the job done. A rough-hewn table is just as functional as a polished mahogany one. Writers who make their living by writing may revise a text many, many times. Decision writers may only require a few revisions to get the decision to that functional level. Toni Morrison made the point that there is “a line between revision and fretting, just working it to death”. James Baldwin said that rewriting is “very painful” and that you know when it’s finished “when you can’t do anything more to it, though it’s never exactly the way you want it”.

William Zinsser in his book “On Writing Well” suggests you learn to enjoy the tidying process in writing. Most of us can relate to his statement, “I don’t like to write; I like to have written” (an expression with a variety of attributed authors). Some of us may find it more difficult to relate to his statement that he loves to rewrite. However, we should all learn to embrace revision, even if we don’t ever come to love it.

Source: http://www.slaw.ca/2022/03/02/revise-revise-revise-the-path-to-good-decision-writing/

About Ian Mackenzie

Ian R. Mackenzie has been an adjudicator and mediator for 18 years with a focus on labour relations, human rights, workers compensation and disability law. He is an independent arbitrator and mediator and also a part-time member of provincial and federal tribunals. He was a full-time vice-chair of the Public Service Labour Relations Board from 2005 until 2011. He was also a full-time vice-chair with the Human Rights Tribunal of Ontario. He has made many presentations on labour law and administrative law as well as providing training for new tribunal members. The views in his columns are his own.