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Writing for a judge: Difference between revisions
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A judge has no better prospect of understanding even the ''legal'' concepts than an engineer, surveyor, accountant, or stevedore. She is no better placed to adjudicate on a financial services transaction than ''any other passenger on the [[Man on the Clapham Omnibus|Clapham omnibus]]''. How ''could'' she? | A judge has no better prospect of understanding even the ''legal'' concepts than an engineer, surveyor, accountant, or stevedore. She is no better placed to adjudicate on a financial services transaction than ''any other passenger on the [[Man on the Clapham Omnibus|Clapham omnibus]]''. How ''could'' she? | ||
Therefore, we should not be surprised, when judges get financial services decisions wrong. And | Therefore, we should not be surprised, when judges get financial services decisions wrong. And sometimes they do: {{casenote|Greenclose|National Westminster Bank plc}}; {{casenote|Citigroup|Brigade Capital Management}}. To be sure, they are just as likely to get them right, such as {{casenote|Barclays|UniCredit}}, and this is not to criticise the judiciary, but only to state an undeniable reality. ''You need to be close to this stuff to understand how it works''. It is ''in no way'' intuitive. It is ''hard''. Much of it is ''nonsense''.<ref>To which this site is reverent testament.</ref> [[Litigation]] is, at best, a ''crapshoot''. | ||
So if you design your drafting for the benefit of judges, in priority to the merchants who are actually party to it, you are out of your mind. But for the very same reason, the best means of drafting for a non-specialist judge is exactly to draft for a non-legally qualified client: if it is clear to the counterparties, it will be clear to a judge. But even better than that, if it is clear to the counterparties ''it will never come before a judge''. That is your optimal outcome. ''No one litigates an argument that they know they will lose.'' | So if you design your drafting for the benefit of judges, in priority to the merchants who are actually party to it, you are out of your mind. But for the very same reason, the best means of drafting for a non-specialist judge is exactly to draft for a non-legally qualified client: if it is clear to the counterparties, it will be clear to a judge. But even better than that, if it is clear to the counterparties ''it will never come before a judge''. That is your optimal outcome. ''No one litigates an argument that they know they will lose.'' | ||
{{sa}} | {{sa}} | ||
{{ref}} | {{ref}} | ||