precedents for future cases). Parties to a case, therefore, are imperilled by the
uncertainty. By contrast, legislation does not usually operate retrospectively.
Technique
In an attempt to deal with this uncertainty, however ineffectually, lawyers try as
best they can to predict how the court will make the choice.
515
A lawyer
advising a client about the outcome of proposed litigation has to try to “get
inside the judicial mind”
516
and predict which meaning of a provision the
relevant court or judge will choose. How, then, do they try to make this
prediction?
Obviously there is no guaranteed method of predicting judicial choice but it is
possible to make some suggestions. First, a necessary prelude to any
reasonable attempt to predict how a court will decide a question of
interpretation is to identify the judge or judges who are going to hear the case.
This is necessary because many non legal or human factors are very specific
to particular judges.
Second, consider the legal arguments before the court and how the court
might weigh conflicting arguments. Despite the fact that legal reasoning is a
choice, a court may be persuaded solely or substantially by legal argument.
Even though judges can disregard those arguments, a substantial part of
judicial decision making is based on reason.
And even a judge who may be
disposed to rely on extra legal criteria may be restrained or prevented where
the weight of legal argument is overwhelmingly in favour of one particular
meaning.
Third, consider all the human factors which may enter the decision. In trying to
detect them one is trying to find any pronounced view or attitudes which a
judge has on legal and non legal matters that may affect the decision, any
current social factors which are likely to affect the court, or anything about the
particular case, the parties, the witnesses or the circumstances which may
obviously influence the court. These factors may operate on their own. They
can also operate in conjunction with legal argument and determine how
receptive a court is to a particular style of argument. Consequently it is also
necessary to consider whether this might happen, and if so, how it will affect
the decision.
Human factors will rarely be admitted and can be detected, if at all, in the
judicial context by knowledge of the judge’s behaviour, attitudes, responses or
values. This may be gained from previous appearances before the judge in
515
See Williams (1993).
516
Guthrie, Rachlinski, Wirstrich (2001), Giles (1987)
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