Reflections on the Art and Science of Decision-Making and Decision-Writing

1. Reflections on the Art and Scienceof Decision-Making and Decision-Writing Mr. Justice Jamie W.S. Saunders Nova Scotia Court of Appeal Professional Development Conference ~ Maritime Provinces’ Law Societies November 9-10, Halifax, N.S., Canada

2. Today’s Presentation I. My mandate and objectives II. The science of human decision-making III. The art of administrative/judicial decision- making • The art of administrative/judicial decision- writing • Guiding principles and practical tools

3. With thanks and full credit to Disney

4. Decision-Making: A Definition My Assumptions in Today’s Presentation: • A Process • Factual & Legal • Legal Outcome

5. But it’s simple, right?? [A]ny judge, one might suppose, would find it easy to describe the process which he had followed a thousand times or more. Nothing could be farther from the truth. -Benjamin Cardozo, Associate Justice of the U.S. Supreme Court

6. Thinking & Reasoning: Artificial Intelligence Data Outcome Sensors Processors

7. Thinking & Reasoning: Neuroscience Information Attention Encoding Storage Response Processing Retrieval

8. Thinking & Reasoning: Courtroom Evidence Senses Final Argument Thinking Decision Choice Reasoning

9. Truth

10. Types & Effects of Bias

11. Administrative/JudicialDecision-Making Accountability & Responsibility

12. Don’t Worry… You’re In Good Hands

13. Qualities of a Competent Decision-Maker • Punctual • Knowledgeable • Prepared • Engaged • Alert • Patient • Courteous • Respectful • Open-minded • Independent • Impartial • Articulate • Firm • Fair

14. Independence & Impartiality

15. Bias: Triggers, Traps & Avoidance

16. Breaking It Down 2 Stages of Decision-Making: • Getting ready for the hearing • Presiding over the hearing

17. Getting Ready for the Hearing • Study pleadings • Brief the law • Create a system for record keeping and retrieval • List the issues • Prepare questions • Know the record • Know the procedure

18. Presiding Over the Hearing • Manage and run the show • Lead by example • Punctuality, civility and decorum • Enforcement of the rules • Firm rulings

19. Knowing the Rules and Other Essentials • Admissibility • Assessing credibility • Burden of proof • Standard of proof • Daily summaries • Final submissions

20. Writing the Decision • Prepare outline • Prepare overview • Frame issues

21. Quiet solitude • Gather material and resources

22. Decide the facts • Draw inferences • Apply the law

23. Assessing & Deciding Credibility

24. Life experience in judging people • Credibility and reliability

25. “I reject the evidence of Mr. A because I am convinced he is a liar.”

26. “I disbelieve Ms. B because she fidgeted in her seat and never made eye contact with the plaintiff’s lawyer during questioning.”

27. “The evidence of Mr. A and Ms. B is in obvious conflict. Their testimony cannot be reconciled. Having carefully observed both their examination and cross-examination and assessed their evidence in light of the other evidence presented at trial, I have concluded that the evidence of Ms. B should be preferred. I say this for several reasons. First, the transcript of Mr. A’s questioning will be replete with examples showing his reluctance to answer even the most direct question, without a rambling, unresponsive reply. Further, he was easily provoked and ill-tempered during many exchanges, especially when confronted with documents 106 and 32A which clearly contradicted his testimony. Third, his own letters in this dispute reveal that he was not forthcoming to even his own counsel when the pleadings were prepared. As well, he was slow to answer Interrogatories and I think deliberate in withholding documents which ought to have been produced at Discovery and, at a minimum, included within his own List of Documents. For these and other reasons which I need not take the time to describe, I conclude that Mr. A’s testimony is unreliable and I give it no weight.”

28. Identify your audience

29. Plain, clear, persuasive prose • Revise, revise, revise • Power of choice

30. How to Write a Good Decision:Lessons from the Trenches • Writing a decision is hard work. It is tedious and takes time. There are no shortcuts. • Insist on solitude and quiet. • Gather together all of the record and reference materials so that everything is within reach. • Prepare an outline, to list the parts of your decision. • Write out a simple overview of the case (2-3 paragraphs to describe what’s at stake). • Frame the issues so that you will then know what evidence/facts are important and what can be discarded. • Start to write, and work your way through the various parts of your outline, checking off each heading as it is completed. Continued….

31. Lessons from the Trenches … Continued • Don’t slow the process by auto-correction. Make changes later when you have something significant to review. • State your findings clearly • Revise, revise and revise again. • Edit to reduce, not to expand. • Ask yourself whether your decision has responded to all of the issues. • Ask yourself whether your decision grants a remedy or relief within your jurisdiction, mandate and authority. • Who is your audience? • Do not write for the Court of Appeal. • Are your reasons sound, concise, clear and persuasive? • Is the quality of your writing the best it can be? • Is your decision just enough to dispose of the issue(s) without going too far such that it will compromise future cases?

32. Principal Objectives • Resolve the dispute with the force of law • Understand result • Sound precedent • Respect for the law • Permit meaningful appeal • Moral pact

33. Guiding Principles: A Tool Box • Punctual • Knowledgeable • Thoroughly prepared • Rested and alert • Open-minded • Independent • Impartial • Firm • Fair • Courteous • Respectful • Patient • Efficient • Prompt • Well-reasoned • Jurisprudentially sound • Logical • Clear • Concise • Engaging • Articulate • Persuasive

34. The Last Word… With thanks and full credit to David Mills of The Mills Law Office LLC