How Judges Think About Language

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Judges are masters of applying the law, but how well do they truly understand the language they use? During a judgment-writing course in my law degree at the Australian National University (ANU), I noticed that while judges make deliberate linguistic choices, their understanding of language—particularly in relation to achieving clarity—could benefit from linguistic expertise.

As a law and linguistics student, I’m often frustrated by the lack of explicit focus on language in legal education. When language is occasionally acknowledged, it is often treated as a neutral vessel for meaning—an assumption that linguistics studies teach you to question.

In 2024, I had the privilege of being a student in the inaugural Judicial Reasoning course at ANU. Designed and convened by Associate Professor Heather Roberts (who runs ANU Law’s Visiting Judges Program) and co-taught with Dr Anne MacDuff, the course brought nine current and former judges with diverse legal backgrounds into the classroom to discuss judgment writing. I gained rare insight into judges’ beliefs about language, and was pleasantly surprised by their heightened awareness of its role in judgment-writing, as well as their ability to make conscious linguistic choices to achieve their desired communication goals. However, their awareness of language seemed to be guided more by their intuition and legal training than linguistic expertise. This is not surprising as few judges are trained in linguistics, but it does raise important questions about the need for greater integration of linguistics in law. The following reflections are based on my own observations of the insights shared by the judges during this course.

Who do judges write for?

The judges were most explicitly aware of language when they talked about writing for a particular audience. They generally wrote for those most directly affected by the judgment. For some judges, this was an individual or community seeking justice for personal harm. For others, this was the legal community seeking answers to complex legal questions, particularly higher courts that may review their decisions.

From my observations, the choice between an audience of laypersons and one of legal practitioners correlates with important linguistic consequences. Judges writing for a legal audience often want their writing to increase distance between themselves and their audience (what I’ll refer to as +D), while the judges writing for laypersons tend to want their writing to minimise distance between themselves and their audience (what I’ll refer to as –D). To achieve these differing goals, judges employed somewhat contrasting linguistic techniques.

How do judges achieve +D in writing for legal audiences?

Judges seeking to achieve +D were often writing for higher courts and emphasised the importance of objectivity, accuracy and impartiality in their legal reasoning to reduce the likelihood of further appeal. The judges cited avoiding emotionally-laden language as important to maintain impartiality. As one judge explained, ‘you are talking to a transcript’.

Clarity in writing was viewed as the most important goal in achieving +D. The judges encouraged efficiency and brevity in achieving clarity, with one judge suggesting to ‘take out all the words you don’t need’, including summarising the statement of the facts in appeal cases. This approach to clarity favours the ‘legal register’ with formal language, legal terminology, and passive voice. Technical legal terms, phrases and syntax most efficiently communicate specific legal meanings to the legal experts who are familiar with them.

How do judges achieve –D in writing for lay audiences?

On the other hand, judges seeking to achieve –D tended to emphasise a desire for their writing to express empathy and compassion. Judges with this goal were often dealing with criminal or negligence matters, and described themselves as ‘writing for the loser’. One such judge demonstrated a keen awareness of linguistic tools: acknowledging and engaging with the intended audience by directly addressing them, framing their experience in their own words, and including a detailed statement of the facts. This judge was also aware of the effect of context: using active voice to place responsibility on the accused and acknowledge harm caused, while using passive voice can have the effect of removing the agent of the harm (and therefore relieving responsibility). But equally, when used in sentencing, the active voice can be interpreted as punishing rather than encouraging self-reflection.

Importantly, while equally concerned with clarity, judges aiming for –D equated this with accessibility. These judges also expressed a desire to articulate a clear picture of the law. However, they sought to do this in lay terms so that their lay audience could understand. The judges cited the use of ‘plain English’, implying avoiding legal jargon and generally complex language.

So, what is ‘clarity’ in judgment writing?

What judges see as ‘clarity’ in judgment writing appears to depend on who they are writing for. Judges seeking +D tend to see clarity as brevity and precision, while those seeking –D see clarity as accessibility. For example, while a judge seeking +D would prefer the concise latinate verb ‘implement’, a judge seeking –D would be more likely to prefer the more informal ‘put into place’.

But judges’ understanding of clarity could benefit from linguistic expertise. For example, phrasal verbs like ‘put into place’ are often challenging for ESL speakers and learners as they are idiomatic, contextual and often lack equivalents in other languages. This example highlights how ‘clarity’ and linguistic accessibility are more complex and subjective than the formal/informal binary described by the judges. Personal understandings of language—such as what is considered ‘plain English’— appear to offer little guidance on what is genuinely accessible to diverse audiences.

Bridging the Gap

These insights suggest that judges do think deeply about language, choosing tools to suit their audiences and communication goals of +D or –D. However, their grasp of linguistic accessibility appears limited, with notions like ‘plain English’ oversimplifying the complexities of clarity across varied audiences.

Additionally, it’s important to note that this distinction reflects general patterns I observed. While impartiality is a fundamental obligation of judges, many also saw compassion as essential to effective judgment-writing, and thus aimed for both goals. Balancing +D and –D simultaneously is a complex linguistic task, and several judges acknowledged the difficulty of navigating this fine line. Greater linguistic expertise could provide valuable tools to help judges manage this dual responsibility more effectively.

Ultimately, while judges demonstrate a practical understanding of language’s social consequences, their grasp of linguistic accessibility appears limited. Incorporating formal linguistic training into legal education could empower judges and lawyers to make more informed, accessible, and socially impactful linguistic choices.

Further reading

A reading from the course that provides further discussion of language in judgment writing: Desmond Manderson ‘Literature in Law – Judicial Method, Epistemology, Strategy and Doctrine’ (2015) 38(4) UNSW Law Journal 1300 https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/swales38&id=1328&men_tab=srchresults

An example of a judgment written with careful reflection on writing style and its consequences: A (Letter to a Young Person), Re (Rev 1) [2017] EWFC 48 (26 July 2017)