THE ADVOCATE V O L . 7 5 P A R T 4 J U L Y 2 0 1 7 491
Look at matters in context. Many of us have stories of doing some quick
legal research and finding, through a brilliant key word search on the computer,
the perfect sentence at paragraph x of a set of reasons for judgment.
It exactly captures what we (or the person for whom we were doing the
research) wished to say. We have duly extracted the sentence from the case
and inserted it—with a nice pinpoint cite to the one segment of the reasons
that we read—into a memo or written submissions.
Eventually there comes a point when senior counsel or the judge asks us
what the case is actually about, whether the facts are distinguishable, who
was the judge, etc. “Um, I don’t know.” “What do you mean you don’t know?”
is the quizzical response, either verbal or communicated by one or two
raised eyebrows. Senior counsel—in the happier of stories, this episode was
played out in the office prior to the hearing, not in court—may then have
started to read the decision in depth, with flourishes of a highlighter to mark
key passages, scribbling notes and attaching flags to mark all the key points
we had missed.
Indeed not only must judicial pronouncements be read in context, but
courts themselves pronounce on the need to look at context when interpreting
documents. Courts tell us repeatedly to look at context—that is so even
when reading and interpreting a statute rather than the reporting of an
event: “words, like people, take their colour from their surroundings”.2
There is no context in a headline or 140-character tweet—we should at the
very least try to find the context ourselves, if we do not demand commentators
to provide it, and measure what they have said against it.
Give credence only to reasoned statements. Often in searching out news
and commentary we are faced with conclusions, worded to be as attentiongrabbing
as possible, without the reasoning. However, the lack of reasons
should cause us to be suspicious.
We expect decision makers in the courts and on tribunals—by and large,
though there are some exceptions—to express the reasons for their decisions.
Part of the exercise is to better enable parties to understand what has
been decided and how it will apply in the future. We also generally expect
that the exercise of formulating reasons will cause decision makers to reach
a better result, after being compelled to organize and think through what
was before them. This is so no matter how knowledgeable and experienced
that particular decision maker is; all of them may benefit from the exercise
and benefit participants and society by carrying it out.
Without any reasoning being articulated, how can we determine whether
what we are reading or hearing is accurate? In an era where there seems to
be little restraint in delivering untruths in a brash and confident tone, there