Tom O'Malley SC

The Great Gatsby is one of my favourite novels and I have recently read it for (probably) the third time. What makes it great is not just the story it tells and the way in which Scott Fitzgerald uses that story to expose the emptiness and, at times, the cruelty of the American Dream, but also the extraordinary fluency and economy with which it is written. Now regarded as one of the greatest novels in the English language and having sold 30 million copies, it runs to a mere 190 pages, and that’s in the small-sized Macmillan Collector’s Library edition. The quality of the writing is most evident at the beginning. Within the space of a few pages, we are told almost everything we need to know about the narrator and his background, about where he lives and how he came to be there, and we are even introduced to Tom Buchanan and his wife Daisy who will play such a central role in the story.

Fitzgerald’s writing style is concise and economical, but never dense. It is invariably pellucid (one of Lord Macaulay’s favourite terms) — so clear that it leaves no doubt about what the author wants to convey. This is a skill not easily mastered. It demands enormous effort, and the extent of that effort will never be apparent to the reader. Michelangelo is reputed to said: “If people knew how hard I had to work to gain my mastery, it would not seem so wonderful at all.” Or, if you want an even more distinguished authority, Dolly Parton once said, “It costs an awful lot of money to look this cheap.” And we are all familiar with the old saw, “forgive me for writing a long letter but I didn’t have time to write a short one.”

What brings all this to mind is that many recent judgments of the Irish Superior Courts are so long and indigestible that their impact is seriously diminished. Of course, they are all very important. But my essential argument is that their legal and social significance calls for a more concise, economical and fluent style of judgment writing than is currently on display. They are, after all, essentially addressed to the public. Court judgments, unless they deal with highly technical or complex areas of law (as some inevitably must), should be as comprehensible to a barista as to a barrister — and let me assure you that I hold baristas, especially those who resuscitate me every morning here in Knocknacarra, in the highest esteem. They would be just as capable as any barrister of understanding a concise, clearly worded Superior Court judgment.

Others have already commented on this topic, but the length of some recent Supreme Court judgments is, frankly, a cause of concern. Take, for example, the two bound volumes of the Irish Law Reports Monthly for 2024. The first volume contains 7 cases while the second contains 11. I would hazard a guess that these must be record low numbers considering that each volume runs to about 500 pages. However, much of the first volume is devoted to Delaney v Personal Injuries Assessment Board [2024] IESC 10; [2024] 1 ILRM 189. This runs to a whopping 247 printed pages (60 pages longer than The Great Gatsby), 110 of which are occupied by the judgment of Collins J. As it happens, I agree entirely with his reasoning and conclusions (and strongly disagree with the majority on the constitutional issue). I just wish he could have said it all in 40 printed pages or less. Charleton J, also in the minority and with whom Collins and Murray JJ agreed, managed to condense his judgment into 26 printed pages. (Murray J also agreed with Collins J). In the first volume of the 2024 ILRMs, Delaney is followed by O’Meara v Minister for Social Protection [2024] IESC 1; [2024] 1 ILRM 437 which runs to 95 printed pages.

The second volume of the 2024 ILRMs includes some important criminal cases — McAraevey, Smyth, Crawford and O’Flaherty. Smyth runs to almost 100 pages, though Hogan J writes an effective dissent in about 20 pages. Crawford runs to 60 pages or so. The unreported versions of all these judgments in typescript have even higher page counts. Delaney runs to more than 420 pages in this format. Bear in mind that the unreported versions are the only ones freely available to those who don’t have access to printed law reports.

Some might argue that these judgments should be long because they are so important. I would counter that because they are so important they should be much shorter. There is no inevitable correlation between the importance of a case and the length of the judgment. In McLaughlin v United States 476 US 16 (1986) the US Supreme Court had to decide if an unloaded gun was a “dangerous weapon.” This was an important question, not least for the petitioner who faced an enhanced penalty for a bank robbery if the answer was in the affirmative. Justice Stevens, who wrote the Court’s unanimous opinion, held that an unloaded gun was indeed a dangerous weapon and he explained exactly why — all in five paragraphs, making it one of the shortest opinions in the Court’s history, but none the less significant for that.

Superior Court judgments, and especially those of the Supreme Court and Court of Appeal in this jurisdiction, are directed not just to the parties but also to the legal community and society at large. They are addressed urbi et orbi. In Marbury v Madison (1803), a seminal case in American constitutional law, Chief Justice John Marshall declared that “it is emphatically the province and duty of the judicial department to say what the law is.” That is precisely what the senior appeal courts, and the Supreme Court in particular, are doing: saying what the law is. Their judgments are thus addressed to lower-court judges, lawyers, legislators, government departments, law officers of the State, law students and the general public. The diversity of this audience imposes competing demands. On the one hand, a judgment must contain sufficient detail to inform the reader about the background to the case, the relevant law and the reasons for the decision reached. On the other hand, to be useful, comprehensible and digestible, it should be sufficiently concise to be capable of being understood and absorbed without too much effort.

The legal question in Delaney was certainly important, but I doubt if it merited anything like the acres of space the judgments now occupy in the printed law reports. It may be a long time before such a question arises again. Smyth, on the other hand, dealt with the exclusionary rule (or whatever is left of it), while Crawford dealt with self-defence as a defence to murder. Both are matters of great practical importance and likely to recur. All the more reason for the judgments to be as concise and accessible as possible. As noted earlier, Smyth runs to 100 printed pages and Crawford to 60. The last major judgment on self-defence, People (AG) v Dwyer [1972] IR 416, which stood the test of time, ran to 17 pages in the Irish Reports.

Having said this, mention of the exclusionary rule reminds me that long judgments are not a recent phenomenon. People (DPP) v JC [2015] IESC 31; [2017] 1 IR 417 occupies a full issue of the Irish Reports (pp 417 — 807). I would guess that today most users read only pp 769-700 where Clarke J. summarises what is assumed to be the present test of admissibility. The combined judgments in this case are at least four times longer than they need be, and one factor contributing to their excessive length is the tendency of the judges to discuss every case they ever came across on the topic, rather than concentrate on the central constitutional question at stake. If I recall correctly, Maguire v Ardagh [2002] IESC 21; [2002] 1 IR 385, the Abbeylara case, also occupied a full issue of the Irish Reports.

The UK Supreme Court generally seems to do much better in this regard. For instance, R (Miller) v Prime Minister [2020] AC 373; [2019] 3 WLR 589, the Prorogation Case, dealt with important, fundamental aspects of UK constitutional law. Yet, the single judgment of the Supreme Court runs to about 22 pages (including headnotes, etc) in the Weekly Law Reports and about 40 pages in the Law Reports, but half of these are devoted to the arguments of counsel, headnotes and other prelims.

One idea needs to be knocked on the head. This is the idea that a long judgment is somehow a “great” one. This certainly does not follow (apart from the fact that few will ever read it in full). What makes a judgment great is obviously a matter of opinion: quot homines tot sententiae. But here I will chance my arm and try to identify the qualities of a good judgment. The indicia of greatness I am happy to leave to others. What follows refers solely to appellate judgments dealing with points of law. A good judgment will, first and foremost, give a clear answer to the question(s) or issues(s) to be resolved. Secondly, it will set out clearly and concisely the reasons for giving that answer. Thirdly, it will set out the facts only the extent that is strictly necessary for the purpose of the legal analysis that follows. The same should apply even more strictly to the facts of any previous cases considered in the judgment. Remember how in first-year law we were taught how to derive the material facts from the specific facts. This is one skill that should not be consigned to what students nowadays describe as short-term memory.

Perhaps the word that best encapsulates the approach to judgment writing I am recommending here is “crystallisation” (defined in one dictionary as “a process in which thoughts or opinions become clear and fixed”). What makes many judgments intolerably long is the failure of their authors to distill the essence of the facts and the relevant law. As already suggested, appellate judgments need seldom dwell on the facts beyond a brief summary, especially if they are already set out in a lower court judgment to which reference can be made. Earlier authorities should likewise be distilled in the manner suggested below. The bulk of the judgment should be devoted to the legal analysis that compels the conclusion. Let me stress that that I am not arguing here for skeletal judgments (and, granted, Justice Stevens’ aforementioned opinion in McLaughlin was decidedly skeletal). Of course, judgments dealing with important points of law have to be reasonably substantial. But what readers want, and what other judges, lawyers and scholars will want in years and decades to come, is a clear understanding of how the court interpreted the relevant rules or principles and why, on the basis of that interpretation, it decided the case as it did. The more concisely this is done, the more valuable and influential the judgment will be in the future.

Anyone who has conducted research for a PhD, academic article, book or law reform document will be well aware, and often painfully so, that much of the material they have read or reviewed will never make its way into the finished product, except perhaps in brief footnote references. Yet, all that hidden research remains valuable. It can help to separate the relevant from the irrelevant, identify what is important, and clarify for the writer what they really want to say. It can also provide the writer with useful ideas that might not otherwise have occurred to them, and that they can adapt to develop their own arguments. Likewise, when judges come to draft their judgments, they must accept that much of the material they have read, whether in submissions or books of authorities, or as a result of their own research, cannot be incorporated into what they write. But unused material can still have the same value for them as it has for academic authors. Obviously, credit should be given where it is due, but this can often be accomplished with a brief reference or citation.

Economy in the use of authorities is essential if judgments are to be readable and of manageable length. Whatever about citing earlier authorities, there is no need to quote from them if (1) they are all effectively saying the same thing, or (2) it will do equally well to summarise briefly what a case held rather than quote at length from it. Sometimes, the most recent authority will supersede all or most of the earlier ones, whether it changes the law or not. For instance, in Kelly v UCD [2025] IESC 6, the Supreme Court set out the law governing judicial disqualification on grounds of alleged bias. The judgment, I’m afraid, runs to 99 pages but you can skip to pp 95 to 99 where the principles are conveniently summarised. From now on, it should be unnecessary for submissions or judgments to quote from any the earlier domestic and foreign authorities on this issue, unless there is some special reason for doing so.

William James once said (and I paraphrase): “If there is anything good in my writing, it is the product of ceaseless rewriting.” Any written work can only benefit from ruthless editing, whether by the author or someone else. Judgments are no exception in this regard. A judge who writes a judgment running to, say, 75 pages should ask one or more of their judicial assistants to redraft it in 25 pages. The judge may not agree with all the pruning, but the chances are that the final version will be much shorter than the original.

Ideally, the opening paragraph of a judgment should briefly state the legal question raised by the case and the answer the judgment will give. This was a hallmark of Justice Ginsburg’s opinions when she was on the US Supreme Court. Here, for example, is the opening paragraph of her opinion for the Court in United States v Virginia 518 US 515 (1996):

This is far preferable to opening with a superfluous rhetorical flourish along the lines of: “It is a truth too plain to be contested that we live in a technological age.” Yes, we had noticed.

Anyone engaged in judgment writing or otherwise interested in that craft should check out a great American website, LawProse, run by Bryan Garner, a leading authority on legal writing. His many publications include A Dictionary of Modern Legal Usage and Elements of Legal Style. He is also the editor of Black’s Law Dictionary. In 2006-2007, he conducted interviews with eight of the nine Supreme Court Justices, and later added Justice Kagan in 2015. They all discussed legal writing, their approach to opinion writing and what makes a good Supreme Court brief (written submissions in our terms). The five-part interview with Chief Justice Roberts is especially worth watching because he addresses matters of great interest to advocates as well as to judges, notably the drafting of briefs and preparation for oral argument. He himself was one of the great Supreme Court advocates of his day.

What comes across most in these interviews is the deep interest of all the Justices in the use of language. Chief Justice Roberts (like myself) detests the misuse of “which” for “that” (e.g. “the first book which she wrote is now out of print” instead of “the first book that she wrote…” or, better still (in my view), “the first book she wrote…”). Some Justices were strongly opposed to the use of contractions (e.g. “won’t” for “will not”) in opinion writing, while others were more relaxed about it. Justice Ginsburg, a very careful writer, reveals that she learned writing from Vladimir Nabokov (yes, him) at Cornell in the 1950s. Significantly in the present context, she also says that she gets concerned if one of her opinions runs to more than 20 printed pages, though some of them, especially when she was writing for the Court, as in Virginia (above), were considerably longer. Justice Kagan is particularly interesting on how she uses law clerks to assist her in preparing for hearings and, later, in writing opinions. Justice Scalia gladly admitted to being a “snoot”, a term invented by David Foster Wallace to describe an “extreme usage fanatic.” All those interviewed were agreed on the value of brevity in both opinions and briefs. Most Justices, even today I guess, when asked which member of the Court, past or present, they regard as the best writer, will mention Robert Jackson who served on the Court from 1941 to 1954.

The interviews with the Justices can still be accessed here. I seem to recall writing about it before in a guest post on Ex tempore, a brilliant blog by Paul MacMahon on Irish Supreme Court case law that ran for some time back about 2011-2012. There is an earlier post on this blog about Ruth Ginsburg as advocate and writer.

I will offer further thoughts on judgment writing and law reporting in another post. Meanwhile I warmly welcome any comments on the above.

• Tom O’Malley SC is a retired law lecturer and barrister with expertise in criminal law, sentencing, criminal procedure and constitutional law. This article first appeared on his Sentencing, Crime and Justice blog.