Time and thought are the key ingredients for good judgment, District Court Judge Alexander Horneman-Wren SC told a Law Society House audience last night.
Judge Horneman-Wren delivered the third and final instalment of the QLS Modern Advocate Lecture Series for 2024, providing plenty of food for thought during his presentation Exercising Judgment in Legal Practice.
“My obsession with judgment is that when spoken of in relation to the law, it seems too often confined to the formal legal definition, of the decision or sentence of a court in a legal proceeding, or the reasoning of a judge that leads to their decision,” he said.
“That is, judgment is what’s exercised by, reached by, a judge. Less attention seems to be paid to the broader meaning of judgment: the ability to make considered decisions, or to come to sensible conclusions.”
Judge Horneman-Wren, who stopped sitting six weeks ago and will formally retire in January, spoke of the need for judgment in legal communications.
He said he found regional practitioners to be much more cordial than those in metropolitan areas.
“In the regions, the practitioners must deal with one another all the time. They’re often in communication daily or weekly in relation to multiple files and this goes on for years and decades,” he said.
“The favour or accommodation asked for today, is the favour or accommodation returned tomorrow, or next week, or next month.
“I believe that it’s a consequence of these matters, that communications between legal representatives for different parties are conducted more politely.”
Judge Horneman-Wren said it was generally assumed that parties to a dispute were keen to resolve it, with a minimum of cost, be that financial, emotional, reputational and commercial.
“If such resolution is indeed the desired outcome, engaging in communications which by their substance, and tone, will in all likelihood, polarise the other side, and entrench them in their position, is both counter-intuitive and counter-productive,” he said.
“In short, in my view, it lacks judgment.”
Reflecting on a career that began as a 17-year-old articled clerk in Rockhampton, Judge Horneman-Wren said advances in technology had not correlated with advances in judgment.
He recalled letter-writing that involved physical steps of handwriting or dictation, typing, reviewing, editing and signing off.
“There was much less room for the indiscreet, disrespectful, and judgment-lacking letter to find its way to the mail tray that afternoon,” he said.
“But that was still not foolproof and many such letters would be sent.
“The immediacy of email has increased enormously the potential for the judgment-lacking correspondence to be sent. When received, that email might spark an equally judgment-light response. A volley of emails may then ensue, and it’s likely to achieve nothing, other than mutual agitation and polarisation.
“The clients on each side will be charged for this mini warfare, and it will not have progressed and in all likelihood, will have regressed, their mutual prospects for resolution.”
Pause for thought, even in simple legal communications, was called for, Judge Horneman-Wren said.
“Approaching every piece of communication, having asked yourself ‘what do I want to achieve’ ‘rather than ‘what do I want to say’, is much more likely to further your client’s interests,” he said.
“What you want to say often will have nothing to do with acting in your client’s interests. What you want to achieve is purely in your client’s interests. Again, put simply, this requires you to exercise judgment.
“And judgment exercised at that point will minimise the change of regret being experienced at some later point.”
The use of precedent documents was an area where judgment needed to be exercised skilfully, he said.
“In terms of intrinsic reward, in terms of professional fulfilment, I assure you that you will gain a great deal more satisfaction from drawing a short document that only includes the necessary than you will from tinkering with a couple of clauses of some other document, probably developed in iterations over time, plucked from a precedent,” he said.
The creation of briefs and affidavits was another area.
“You may be able to identify 25 arguable points in a case; but by the exercise of considered judgment you will know what your best three or perhaps five are,” Judge Horneman-Wren said.
“Judgment will often bring you to the realisation that that if you are not going to win on those three of five points, you are most unlikely to win on those that you have ranked as 23, 24 and 25 in order of merit.
“Be bold enough to put your case forward on its best foundations and not to distract attention from those by introducing a host of other matters which the court will have to address but which will not result in a win.”
Take the time to think and you will reap the rewards, Judge Horneman-Wren urged.
“I can tell you that there is perhaps no greater intrinsic reward than running and winning a case on a point or argument that no one has either seen in the past or been bold enough to run in the past,” he said.
“Legislative amendments enacted to overcome your brilliance are very rewarding even if they mean that you will never get to run the brilliant argument again!
“Take time and think – you will never regret it.
“Nothing will enhance your reputation as a lawyer as the regular exercise of sound judgment”
The lecture will be available to members shortly on the QLS Shop.
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