Using Digital Tools to Give Reasons

The delivery of reasons for decisions by Judges has been an essential part of the common law and the development of precedent. In the past there were arguments advanced why Judges should not give reasons. Sir Edward Coke made these observations

And in troth, wrote Sir Edward, if Judges should set down the reasons and causes of their Judgments within every record, that immense labor should withdraw them from the very necessary services of the commonweath, and their Records should grow to be elephantini libri of infinite length and in time opinion lose somewhat of their present authority and reverence

One wonders what Sir Edward would have thought of the modern law library.

William Hudson in his Treatise on Star Chamber suggested that ego was a reason why Judges might give reasons, making them seem wiser than they were. But times have changed and our books and databases are full of the reasons why Judges come to certain conclusions.

Originally, at least in England, these decisions were given orally from the Bench. Later in both time and practice, the decisions were recorded by law reporters and published in print. And the decisions, naturally, were in text and that is the situation down to today. Judges use words to express their reasons and on occasion attend courses on judgment writing so that their decisions may be articulated with greater structure and clarity.

But the digital age gives us more tools with which we may advance reasons for a conclusion. A couple of years ago I was faced with a case which involved the interpretation not of words but of television advertisements. There were competing interpretations as to the meaning of the advertisements. One interpretation would have the result that the advertisements breached the law.

Reducing the advertisements to words failed to convey the impact of the advertisement. The message lay not only in the words, but in the way in which images and music were used, the way in which skillful use of camera and editing created atmosphere and tension. Now whilst words could well convey some of the essence of the advertisement, something was lacking.

And so I created a digital version of the decision that I wrote for the case which included embedded video of the advertisements and released the decision which was also made available in hard copy and which contained links to copies of the advertisements which I posted to YouTube. Rick Shera got hold of the decision and blogged on the topic, including a copy of the decision.

The next year, 2011, I was invited to present a paper on the topic of the Digital Decision at the National Center for State Courts Courts Technology Conference (CTC2011) in Long Beach, California.

The Long Beach Convention Center

A copy of the program may be found here. A copy of my presentation may be found here.

But there were other issues that related to using multimedia tools in the process of articulating a decision. What about things like authentication, reliability, changing formats, legacy software, codecs and the like.

The article that follows is the paper that sits behind my CTC presentation and  analyses and considers the rationale for the Digital Decision and addresses some of the issues surrounding the use of them. Suffice to say that the use of such decisions will not be appropriate in every case, but this paper may help dispel some of the fears or reluctance surrounding the creation and use of such a decision. I hope that you will find it interesting and informative.