Step 2: Is the imputation defamatory?

This article is one part in a series of in-depth articles on the law of defamation in Australia. It is written for both the legal practitioner and non-legal practitioner alike. If you would prefer to read a quick overview of defamation, click here.  

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Step 2: Is the imputation defamatory?

 

After step 1 is completed, that is, after the matter’s imputation is established, the next step is to determine whether the imputation is in fact defamatory. The legislation does not address this section of the law, instead it is found in the common law.[1]

There are several separate tests to establish whether the meaning is defamatory. They are as follows:

1.     General Test;

2.     Shunned or Avoided;

3.     Hatred, Contempt, or Ridicule.

More than one test is not needed to satisfy a defamatory imputation. The ‘general test’ is seen to be the primary test and the other tests are seen as exceptions to the general test.

 

I.   The General Test

 

The general test for whether an imputation is defamatory is found in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16:

[3] A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

[36] …whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.
 

The principles for the general test include:

 

1. THE IMPUTATION MUST DAMAGE THE PLAINTIFF’S REPUTATION

 

The imputation must damage the plaintiff’s reputation. This principle has been re-expressed many times over.[2] For example, in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, it was submitted that during the trial judge’s directions to the jury, she incorrectly gave the impression that damage must occur to the person’s business, not necessarily to the person’s reputation. The majority held at [32], ‘It is disparagement of reputation which is the essence of an action for defamation.’

     

    2. TO DETERMINE WHETHER THE PLAINTIFF’S REPUTATION HAS BEEN DAMAGED, THE IMPUTATION MUST LIKELY CAUSE PEOPLE TO THINK LESS OF THE PLAINTIFF

     

    To determine whether the plaintiff’s reputation has been damaged, the imputation must likely cause people to think less of the plaintiff.

    In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, the majority stated at [36]:

     ‘…whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.’:

    For example, in the classic case Sim v Stretch [1936] 2 All ER 1237, a handmaid was employed by the Sim’s and later employed by the Stretch’s. The Sim’s persuaded the handmaid to work for them again and subsequently sent a telegraph to the Stretch’s which said, ‘[The handmaid] has resumed her service with us today. Please send her possessions and the money you borrowed, also her wages…”. The imputation was that the Stretch’s were in financial difficulties, however, the imputation was held not to be defamatory.

    In Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, The Australian newspaper published an article with the heading, ‘CARPICE OWNER DECLARED BANKRUPT BY COURT’. However, the Newspaper made an error. The restaurant owner did not go bankrupt, instead, the restaurant manager went bankrupt. The article did specify that it was the manager that went bankrupt, however, a person that read the heading may think it was the owner. The restaurant owner sued for defamation with the imputation that he was financially unsound. The High Court held that the imputation was defamatory.

    This principle has been re-expressed many times over. q Expand to Read More

    The following phrases are different expressions of the one point:

    • ‘…[whether the publication would] tend to lower the plaintiff in the estimation of right-thinking members of society generally.’: Sim v Stretch [1936] 2 All ER 1237 at 1240. However, the words ‘right-thinking’ have been criticised on several occasions. In Slatyer v Daily Telephraph Co Ltd (1908) 6 CLR 1 at 7:

    The only criticism that I have to make upon that passage, and indeed upon the whole of the judgment, which, I think, accurately expresses the law and the proper rule to be applied to the case, is as to the use of the phrase “right thinking ” which has unfortunately come to have an ambiguous meaning. But, read in the light of the context, it obviously means a man of fair average intelligence.

    And in Potts v Moran (1976) 16 SASR 284 at 303:

    I prefer to make the criterion the estimation of the reasonable man rather than the right thinking man, a phrase which, to my mind, involves questionbegging assumptions and circuity of reasoning. It is hard to feel much confidence in a conclusion drawn from a conflation of the two propositions, “This conduct is wrong because right thinking persons condemn it” and “Right thinking persons condemn this conduct because it is wrong”.

    Finally, in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [38]:

    The expression "right‑thinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them.

    • ‘…[whether the publication] is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the plaintiff].’: Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 172 per Jordan CJ.
       
    • ‘[The publication is] of a kind that is likely to lead ordinary decent folk to think less of the person about whom it is made.’: Consolidated Trust Co Ltd v Browne(1948) 49 SR (NSW) 86 at 88.
       
    • ‘…a statement about the plaintiff of a kind likely to lead the recipient as an ordinary person to think the less of him.’: Mirror Newspapers Ltd. V. World Hosts Pty. Ltd. (1979) 141 CLR 632 at [11].
       
    • ‘To be defamatory of the plaintiff, the imputation relied upon must be such as is likely to cause ordinary decent folk in the community, taken in general, to think the less of him.’: Boyd v Mirror Newspapers [1980] 2 NSWLR 449 at 452 (per Hunt J).
       
    • ‘So far as is relevant to the matter now under consideration, the legal issue which had to be decided was whether the material complained of was defamatory of the plaintiff in the sense that it was to his "discredit ... [tended] to lower him in the estimation of others [(Gatley on Libel and Slander, 8th ed (1981) par 31)].’: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [57].
       
    • ‘A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [3].
       
    • ‘…whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36].

    Note, whether the plaintiff’s reputation has been lowered does not necessarily mean whether the plaintiff’s moral standing has been lowered: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [37].[5]

     

    I. A)   Business/Professional/Trade Reputation

     

    A person can be defamed not only in their personal reputation but also in their business/profession/trade reputation.

    For example, in Mirror Newspapers v Jools [1985] FCA 181 the Daily Telegraph gave the impression in an article that a surgeon made a mistake during an operation which caused the death of a patient. The imputation was that the surgeon was incompetent/negligent. However, it was the anaesthetist that made the mistake, not the surgeon.

    Also, in Rogers v Nationwide News Pty Limited [2003] HCA 52, the Daily Telegraph reported that a surgeon’s patient became blind due to the surgeon’s negligence. The imputation was that the patient became blind due to the surgeon’s inadequate performance. However, the surgery itself, even when performed to perfection, carries the risk that the patient will become blind. The patient became blind due to the type of surgery, not due to the performance of the surgeon. 

    Another example is in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, three newspapers published that a building was leaking substantial amounts of water. The imputation was that the architect who designed the building was incompetent.

    See endnote for more cases.[6]

    A defamatory imputation may include a ‘lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional capacity.’: Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 699. An imputation of dishonesty may also be defamatory: In Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 at [34] and endorsed in Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 at [19].[7]

     

    The principles for business/professional/trade reputation include:

     

    1. THE SAME GENERAL TEST APPLIES TO A PERSON’S PERSONAL REPUTATION, A PERSON’S BUSINESS REPUTATION, OR A PERSON’S PROFESSIONAL REPUTATION

     

    The same general test applies to a person’s personal reputation, a person’s business reputation, or a person’s professional reputation: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]:

    q Expand to Read Case Extract

    Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]:

    The concept of "reputation" in the law of defamation comprehends all aspects of a person's standing in the community. It has been observed that phrases such as "business reputation" or "reputation for honesty" may sometimes obscure this fact. In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person's reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff. An imputation which defames a person in their professional or business reputation does not have a different effect. It will cause people to think the less of that person in that aspect of their reputation. For any imputation to be actionable, whether it reflects upon a person's character or their business or professional reputation, the test must be satisfied.

     

    2. IF THE IMPUTATION IS IN RELATION TO A PERSON’S BUSINESS, THE IMPUTATION MUST INVOLVE ‘SOME REFLECTION UPON HIS PERSONAL CHARACTER OR UPON THE MODE IN WHICH HE CARRIES ON HIS BUSINESS, HIS BUSINESS REPUTATION'
     

    If the imputation is in relation to a person’s business, the imputation must involve ‘some reflection upon his personal character or upon the mode in which he carries on his business, his business reputation.’: Sungravure Pty Ltd V Middle East Airlines Airliban SAL (1975) 134 CLR 1 at [13]. In John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, Gleeson CJ And Crennan J at [2] provides a hypothetical example:

    Suppose someone says: "X is a thoroughly decent person, but he is showing signs of age; his eyesight is poor, and his hands tremble". That would not be a reflection on X's character. It would be likely to evoke sympathy rather than hatred, ridicule or contempt. If, however, X were a surgeon, the statement could be damaging. To say that someone is a good person, but a dangerously incompetent surgeon, is clearly likely to injure the person's professional reputation.

    In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, French CJ, Gummow, Kiefel And Bell JJ restated this principle at [10]:

    It is not in dispute that persons may be defamed in their business reputation. The common law has for some time recognised that words may not only reflect adversely upon a person's private character, but may injure a person in his or her office, profession, business or trade. This may be so where the words reflect upon the person's fitness or ability to undertake what is necessary to that business, profession or trade. But in each case the injury spoken of is that to the person's reputation.

    The majority also state in Radio 2UE that there is not necessarily a dichotomy between a person's character and their business reputation. At [46]:

    That moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation does not suggest a true dichotomy as between imputations of that kind and those as to character, with different standards applying to each. Rather it confirms as practicable the general test as applying in all cases involving all aspects of reputation.

     

    3. REPUTATIONAL DAMAGE TO A PERSON’S BUSINESS OR GOODS DOES NOT CONSTITUTE DEFAMATION

     

    Reputational damage to a person’s business or goods does not constitute defamation. Damage to a person’s business reputation does qualify for defamation. Note the distinction between the two. In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA:

    [11] The remedy which the law provides for injury to a person's business or professional reputation must be distinguished from that for malicious statements which result in damage not to the reputation but to the business or goods of a person. The former is provided by an action for defamation, the latter by that for injurious falsehood. Lord Esher MR explained the distinction in South Hetton Coal Co Ltd v North‑Eastern News Association Ltd. A false statement that a wine merchant's wine is not good, which is intended to and does cause loss to the wine merchant's business, is an injurious (or "malicious") falsehood. A statement reflecting upon that person's judgment about the selection of wine, and therefore upon the conduct of his business, may be defamatory of him. Gummow J observed in Palmer Bruyn & Parker Pty Ltd v Parsons that the action for injurious falsehood is more closely allied to an action for deceit.

    [12] … Accordingly for present purposes, a publication must have an effect upon the reputation of the plaintiff rather than upon the business, trade or profession of the plaintiff as such.

     

    4. A DEFAMATORY IMPUTATION DOES NOT REQUIRE AN IMPUTATION OF MORAL FAULT OR DEFECT IN PERSONAL CHARACTER

     

    A defamatory imputation does not require an imputation of moral fault or defect in personal character. In Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 699 Lord Pearson held, ‘…words may be defamatory of a trader or business man or professional man, though they do not impute any moral fault or defect of personal character.’

     

    II.   Shunned or Avoided

     

    Another test for whether the imputation is defamatory is if the imputation causes others to shun or avoid the plaintiff. In Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581 at 587:

    … the matter is defamatory … if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on their part … [those people] have been held to be entitled to bring an action to protect their reputation and honour.

    One may, I think, take judicial note of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectful consideration of the world.

    This was restated by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [4]:

    It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society.

    The spectrum of imputations, according to Matthew Collins in Collins on Defamation, have largely been confided to contagious or infectious diseases, insanity, and rape.[3] In Berkoff v Burchill [1996] 4 All ER 1008, Millet L.J. at [2] states that most decision have ‘been allegations of fact: illness, madness, filthiness or defilement.’

    Some examples of 'shunned or avoided' include:

    In Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581 a woman was falsely accused of being raped. In Morgan v Lingen (1863) 8 LT 800, the plaintiff was accused of being insane. In Henry v TVW Enterprises Ltd (1990) 3 WAR 474, an imputation of hepatitis B was held to be defamatory.

    In the old case of Villers v Monsley (1769) 2 Wils 403, the plaintiff was falsely accused of having a serious contagious or infectious disease. The defendant had written about the plaintiff saying that he smelt of brimstone and one of the lines included, ‘You old stinking, old nasty, old itchy old toad…’ Lord Wilmot, CJ held:

    . . . if any man deliberately or maliciously publishes any thing in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher. I see no difference between this and the cases of leprosy and plague; and it is admitted that an action lies in those cases . . . Nobody will eat, drink, or have any intercourse with a person who has the itch and stinks of brimstone; therefore I think this libel actionable, and that judgment must be for the plaintiff.

    Gould, J concurring with Wilmot, CJ held:

    What is the reason why saying a man has the leprosy or plague is actionable? [It] is because the having of either cuts a man off from society; so the writing and publishing maliciously that a man has the itch and stinks of brimstone, cuts him off from society. I think the publishing any thing of a man that renders him ridiculous is a libel and actionable . . .

    In Zbyszko v New York American Inc (1930) 239 NYS 411, the plaintiff, a wrestler, was compared having the appearance of a primitive gorilla. McAvoy J stated:

    The usual allegations as to the defamatory words and pictures are set out, to wit, that they were wholly false and untrue; that the plaintiff enjoyed an international reputation for dignity, fine traits of human character, kindliness, intelligence and culture; that besides being a person of prominence in the field of national and international sports and athletics, the plaintiff was a business man who had many business dealings both in this country and abroad with many worthy persons, who treated and received him on the basis of equality, both physically and intellectually; that the said defamatory words and pictures held up the plaintiff to public contempt, disgrace, hatred, infamy and reproach, caused him to be shunned and avoided and to be treated as an outcast by his wife, relatives, neighbors, friends and business associates, and injured him in his professional calling and deprived him of his standing among good and worthy people. 

    Referring to the plaintiff as ugly does not cause people to shun and avoid the plaintiff. In Berkoff v Burchill [1996] 4 All ER 1008, the imputation was that the plaintiff was hideously ugly. Phillips LJ held:

    It is not easy to find the touchstone by which to judge whether words are defamatory which tend to make other persons shun or avoid the plaintiff, but it is axiomatic that the words must relate to an attribute of the plaintiff in respect of which hearsay alone is enough to provoke this reaction. That was once true of a statement that a woman had been raped and would still be true of a statement that a person has a serious infectious or contagious disease, or is physically unwholesome or is mentally deranged. There is precedent for holding all such statements defamatory. There is, however, with one possible exception, no precedent for holding it defamatory to describe a person as ugly. In my judgment, such a statement differs in principle from those statements about a person's physical condition which have been held to be defamatory. Those statements have, in every case, been allegations of fact -- illness, madness, filthiness or defilement. Hearsay factual statements about a person's physical condition can clearly be capable of causing those who hear or read them to avoid the subject of them. In contrast, a statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of that individual's features. To a degree both beauty and ugliness are in the eye of the beholder. It is, perhaps, just possible to think of a right minded person shunning one of his fellow men because of a subjective distaste for his features. What I find impossible to accept is that a right minded person would shun another merely because a third party had expressed distaste for that other person's features.

    My conclusion is that a statement that a person is hideously ugly does not fall into that category of statements that are defamatory because they tend to make people shun or avoid the plaintiff.

     

    The principles for 'shunned or avoided' include:

     

    1. IT IS NOT A REQUIREMENT THAT THE PLAINTIFF’S REPUTATION IS DAMAGED

     

    It is not a requirement that the plaintiff’s reputation is damaged. In Sungravure Pty Ltd V Middle East Airlines Airliban SAL (1975) 134 CLR 1 at [54]:

    Imputations by which others are likely to be caused to shun or avoid the plaintiff depend not on damage to the plaintiff's reputation, but on the tendency of the imputation to exclude the plaintiff from society.

     

    2. IT IS IRRELEVANT WHETHER THE PLAINTIFF IS AT FAULT OR WHETHER THE PLAINTIFF IS IMMORAL

     

    It is irrelevant whether the plaintiff is at fault or whether the plaintiff is immoral. In Alexander v. Jenkins (1892) 1 Q.B. 797, at p 800 Lord Herschell said, ‘It is not necessary that there should be imputation of immoral or disgraceful conduct.' This is affirmed by John Fairfax v Punch (1980) 31 ALR 624 at 632 – 633 and Random House Australia Pty Ltd v Abbott [1999] FCA 1538 at [22].

    In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587, ‘[t]he question whether [the plaintiff] is or is not the more or less moral seems … immaterial in considering this question whether she has been defamed.’

    In Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, at 447:

    This imputation does not assert any moral blame for the exposure upon the plaintiff himself. It is well accepted law that, to be defamatory of a person, the imputation conveyed concerning him need not assert blame if it nevertheless tends to make other persons shun or avoid the plaintiff — for example, by attributing to him that he is insane: Morgan v Lingen (1863) 8 LT 800; or by attributing to her that she has been raped: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587.

     

    III.   Hatred, Contempt, or Ridicule

     

    An imputation may be defamatory if it exposes the plaintiff the ‘hatred, contempt, or ridicule.’

    In Parmiter v Coupland and Another (1840) 151 ER 340, the Hampshire Advertiser newspaper published about the late mayor in the borough of Winchester. The newspaper imputed ‘partial and corrupt conduct, and ignorance of his duties as mayor and justice of the peace for the borough.’

    Park B. stated that the definition of defamation is, ‘A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule.’ He reasoned, ‘…any imputation of wicked or corrupt motives is unquestionably libellous; and such appears to be the nature of the publication here.’

     

    The principles for 'hatred, contempt' or ridicule' include:

     

    1. THE PHRASE ‘CALCULATED TO INJURE’ MEANS OBJECTIVELY ‘OBJECTIVELY LIKELY’ TO INJURE, NOT ‘SUBJECTIVELY INTENDED’ TO INJURE

     

    The phrase ‘calculated to injure’ means objectively ‘objectively likely’ to injure, not ‘subjectively intended’ to injure. In Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, Hunt J stated, ‘The phrase is calculated to injure used by Parke B should be understood in the sense of has the effect of injuring.’ This was restated in Carrier v Bonham [2001] QCA 234 at [25]:

    To my mind, however, the problem is that the expression “calculated” which is used in those passages is one of those weasel words that is capable of meaning either subjectively contemplated and intended, or objectively likely to happen. … The implication I draw from the context in which the word appears in the passages quoted is that it was being used in the latter and not the former sense.

    This was also restated in Y and Z v W [2007] NSWCA 329 at [22]:

    “Calculated” in the test does not mean intended, since the intention of the publisher is immaterial and the imputation conveyed is determined objectively accordingly to the meaning which the ordinary reasonable person would give to the publication.

     

    2. IT IS NOT A REQUIREMENT THAT THE PLAINTIFF’S REPUTATION IS DAMAGED

     

    It is not a requirement that the plaintiff’s reputation is damaged.[4]

     

    3. WHILE THE ‘HATRED CONTEMPT OR RIDICULE’ TEST HAS BEEN CRITICISED, THE TEST IS STILL WORKING AND IN OPERATION

     

    While the ‘hatred contempt or ridicule’ test has been criticised, the test is still working and in operation. In Tournier V. National Provincial and Union Bank of England [1924] 1 KB 461 at 477:

    On this the judge had directed them that defamatory words were words tending to expose the plaintiff to “hatred, ridicule, and contempt” in the mind of a reasonable man. I do not myself think this ancient formula is sufficient in all cases, for words may damage the reputation of a man as a business man, which no one would connect with hatred, ridicule, or contempt. –

    This was restated in Sim v Stretch [1936] 2 All ER 1237 at 1240:

    Judges and textbook writers alike have found difficulty in defining with precision the word ‘defamatory’. The conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is probably too narrow.

    And further restated by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [4]:

    An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow.

     

    III. A)   Ridicule

     

    An imputation may be defamatory if it is likely to cause the plaintiff to be ridiculed.

     

    The principles for ridicule include:

     

    1. THE PLAINTIFF MUST BE SUBJECTED TO ‘MORE THAN A TRIVIAL DEGREE OF RIDICULE’

     

    The plaintiff must be subjected to ‘more than a trivial degree of ridicule’. In Burton v. Crowell Pub. Co. 82 F.2d 154 (1936) at [1]:

    In conclusion therefore we hold that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable…

    This was endorsed in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, at 448-9:

    Applying the principle discussed in Burton v Crowell Pub Co to the present case, I am satisfied that imputation (b) is capable of defaming the plaintiff. Upon the assumption that the ordinary reasonable reader did not conclude that the plaintiff deliberately permitted the photograph to be taken of him with his genitals exposed for reproduction in a publication with a widespread readership — which is the only basis upon which this imputation will fall to be considered — the publication of this imputation is in my view capable of subjecting the entirely blameless plaintiff to a more than a trivial degree of ridicule. It was not seriously argued to the contrary. Accordingly, the imputation is capable of defaming the plaintiff.

    This point was affirmed in Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029 at [20]:

    The Court held that, because the advertisement was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable. The fact that it did not "assume to state a fact or an opinion" was irrelevant.

     

    2. IT IS IRRELEVANT WHETHER THE PLAINTIFF IS AT FAULT

     

    It is irrelevant whether the plaintiff is at fault. In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, at [17]:

    The defendant then submits that it is not capable of defaming the plaintiff to say that he appeared to be ridiculous, without any suggestion of fault on his part. The line of authority to which I have already referred above disposes of that submission.

    In Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, at 447:

    This imputation does not assert any moral blame for the exposure upon the plaintiff himself. It is well accepted law that, to be defamatory of a person, the imputation conveyed concerning him need not assert blame if it nevertheless tends to make other persons shun or avoid the plaintiff — for example, by attributing to him that he is insane: Morgan v Lingen (1863) 8 LT 800; or by attributing to her that she has been raped: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587.

     

    EXAMPLES OF RIDICULE

     

    In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, the plaintiff was a professional rugby league player and a newspaper contained the heading, ‘BOYD IS FAT, SLOW AND PREDICTABLE’ and later described Boyd as ‘waddling’ on to the field. Or, in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, the plaintiff was photographed naked in the shower and the photo was published in a magazine. In McDonald v North Queensland Newspaper Company Ltd [1997] 1 Qd R 62, the plaintiff was a rugby league player and a newspaper published a photograph showing the plaintiff ‘passing the football while being tackled and, in each, part of his penis was visible outside the right leg of his shorts.’

     
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    General Principles

     

    The following principles apply to all three tests where appropriate:

     

    1. THE TESTS MUST BE VIEWED THROUGH THE LENS OF THE ORDINARY REASONABLE PERSON

     

    It is irrelevant what the defendant intended the matter to mean. The tests are objective and must be viewed through the lens of the ordinary reasonable person: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, at [11].

     

    Other names for the ‘ordinary reasonable person’ are:
     

    • ‘Ordinary reasonable reader (listener or viewer)’: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 per Hunt CJ at CL (with whom Mason P and Handley JA agreed);
       
    • ‘Hypothetical referee’: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506.
       
    • ‘hypothetical audience’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6].
       
    • ‘ordinary decent folk’: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88 per Jordan CJ; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452 per Hunt J; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 at [53] per Gummow and Hayne JJ.
       
    • 'fair minded reader’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 268 per Lord Morris.
       
    • ‘reasonable men’: Capital and Counties Bank v. Henty (1882) LR 7 App Cas 741, at p 745.
       
    • ‘ordinary men not avid for scandal’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 260.
       
    • ‘ordinary good and worthy subject of the King.’: Byrne v Deane [1937] 1 KB 818 at 833.
       
    • ‘standard’.[5]
       
    • ‘yardstick’.[6]
       
    • Note, ‘right thinking members of society generally’ found in Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin has been rejected in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16:

    [38] The expression "right‑thinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them.

    [39] The expression has been criticised. Griffith CJ in Slatyer v The Daily Telegraph Newspaper Co Ltd considered it to be ambiguous, but thought that it was intended to refer to a person of "fair average intelligence" and otherwise accepted the test as stated in Sim v Stretch. Murphy J in Reader's Digest Services Pty Ltd v Lamb also thought its meaning was unclear. Bray CJ in Potts v Moran considered that it involved "question‑begging assumptions and circuity of reasoning."
     

    • Note, in the book Defamation Law by David Rolph, he states, ‘Whether all these characterisations remain relevant … is open to question.’[7]

     

    The Qualities of the Ordinary Reasonable Person:
     

    • The ordinary reasonable person ‘does not live in an ivory tower’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 and affirmed in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [10] and affirmed in Farquhar v Bottom [1980] 2 NSWLR 380 at 386.
       
    • The ordinary reasonable person ‘is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 and affirmed in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [10] and affirmed in Farquhar v Bottom [1980] 2 NSWLR 380 at 386. Restated in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6], ‘They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.’
       
    • The ordinary reasonable person ‘is a layman not a lawyer and … his capacity for implication is much greater than that of a lawyer.’: Farquhar v Bottom [1980] 2 NSWLR 380 at 386.
       
    • The ordinary reasonable person is not ‘avid for scandal.’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 258. Affirmed in Farquhar v Bottom [1980] 2 NSWLR 380 at 368, John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [26], and in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6].
       
    • The ordinary reasonable person does not have background knowledge of the situation. In Haddon v Forsyth [2011] NSWSC 123, Simpson J stated:

    [17] In the circumstances of the present case, the exercise has a degree of artificiality. As will become apparent from what I write below, the emails in this case were published to an extraordinarily limited number of recipients, each of whom had a close association with the environment in which they were published, and in which the events with which they were concerned took place. Most, if not all, had at least some prior knowledge of the relevant facts and circumstances. It might, therefore, be expected that they would read the emails differently from the “ordinary reasonable reader” or “hypothetical referee” who did not have that inside knowledge.

    [18] However, the law is plain, and my duty is to approach the determination of whether or not any imputation pleaded was conveyed by reference to the “ordinary reasonable reader” or the “hypothetical referee”, as though the email had been picked up off the street by a casual passer by…
     

    • The ordinary reasonable person does not have ‘special knowledge’: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [134].
       
    • The ordinary reasonable person is not ‘morbid’: Farquhar v Bottom [1980] 2 NSWLR 380 at 368; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165.
       
    • The ordinary reasonable reader is not ‘suspicious of mind’: Farquhar v Bottom [1980] 2 NSWLR 380 at 368; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, at 165. In Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [134], the ordinary reasonable person does not have views of extreme ‘suspicion’.
       
    • The ordinary reasonable person does not have views of extreme ‘cynicism (on the one hand) or naivety and disbelief (on the other).’: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [134].
       
    • The ordinary reasonable person is not ‘perverse’: Farquhar v Bottom [1980] 2 NSWLR 380 at 368; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, at 165.
       
    • ‘In my view [the ordinary reasonable person has a] general knowledge of the ways of people and the world against which the words must be construed.’: Cornes v the Ten Group Pty Ltd and Ors [2012] SASCFC 99 at [52] (Kourakis CJ).
       
    • ‘[O]rdinary reasonable people’ may be ‘described as "of ordinary intelligence, experience, and education" [(Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (1923) at 37)]’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6], French CJ, Gummow, Kiefel and Bell JJ. In Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7, the reasonable person was described as having ‘fair average intelligence’ and affirmed in Farquhar v Bottom [1980] 2 NSWLR 380 at 368. In Lewis v Daily Telegraph Ltd [1964] AC 234 at 286 per Lord Devlin as ‘ordinary sensible man’.
       
    • The ordinary reasonable person is ‘fair-minded’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 268. This was affirmed in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6].
       
    • The ordinary reasonable person is ‘taken to have a uniform view of the meaning of the language used’: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at [7].
       
    • The ordinary reasonable person is ‘taken to have a uniform view of … moral or social’ standards: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at [7].
       
    • The ordinary reasonable person strikes a balance between extreme views: In Lewis v Daily Telegraph Ltd [1964] AC 234 at 259:

    Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.

    • The more sensational the matter, the less analytical care the ordinary reasonable person will take. In Amalgamated Television Services v Marsden (1998) 43 NSWLR 158, at 12:

    The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less the degree of accuracy which would be expected by the reader. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual.

    …the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect.
     

    Kirby J explains the rationale for the ordinary reasonable person in Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [134]:

    In practice, the tribunal of fact, judge or jury, will ask itself about its own response to the matter complained of. To a very large extent that response will be impressionistic, subjective and individual to the decision-maker. The point of the invocation of the hypothetical reasonable person is to remind decision-makers that they may, or may not, reflect the response of the average recipient of the communication and should make allowance for that possibility.

     

    2. THE ORDINARY REASONABLE PERSON TAKES THE VIEWS OF THE GENERAL COMMUNITY, NOT SECTIONS OF THE COMMUNITY

     

    The ordinary reasonable person takes the views of the general community, not sections of the community. In Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506:

    Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation … being a standard common to society generally …

    The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes.

    This was restated in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6]), ‘…any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community.’

     

    3. THE ‘GENERAL COMMUNITY’ DOES NOT MEAN ALL OF THE COMMUNITY. AN ‘APPRECIABLE AND REPUTABLE SECTION OF THE COMMUNITY’ IS SUFFICIENT.

     

    The ‘general community’ does not mean all of the community. An ‘appreciable and reputable section of the community’ is sufficient. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, Hutley JA argued at 686 that someone who terminate pregnancies (plaintiff) may be seen as immoral by a substantial section of the community which can result in hatred, ridicule or contempt, but another section of the community may not see the plaintiff as immoral. Hutley found it ‘startling’ that an imputation accusing the plaintiff to be an abortionist could not be defamatory. Glass JA affirmed the view and stated at 694:

    [A] man can justly complain that words, which lower him in the estimation of an appreciable and reputable section of the community, were published to members of it, even though those same words might exalt him to the level of a hero in other quarters. Where a television programme has been beamed to a large audience it can be presumed, without special proof, that its viewers will include some who advocate the “right to life” and abhor the destruction of foetuses, whatever the circumstances. In the estimation of such persons the plaintiff can claim to have been disparaged even if abortionist meant lawful abortionist.

    Some further support is found in Grundmann v Georgeson [1996] QCA 189 by McPherson J.A. at [2] referring to differing community views on abortion:

    And it could not be said that those who thought that were not a substantial, intelligent and reasonable section of the community. That is sufficient, in my view to make the publication defamatory.

    Note that the phrase ‘appreciable and reputable section of the community’ probably does not mean a small minority. The textbook Fleming’s The Law of Torts writes:

    On the other hand, it is not sufficient that the words are regarded as prejudicial by only a small minority who’s standards are so anti-social that it would not be proper for courts to recognise them.[8]

    Additionally, David Rolph in his book Defamation Law warns that the phrase ‘appreciable and reputable section of the community’ is ‘…an approach more usually adopted in United Stated defamation law. It is not an approach which has received widespread support within Australian defamation law.’[9]

     

    4. MUST TAKE INTO ACCOUNT CURRENT SOCIAL TRENDS

     

    Must take into account current social trends. In John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [140]:

    In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person's reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.

     

    Some examples of changed societal trends include:

    • The imputation of being a communist: In Cross v Denley (1952) 52 SR (NSW) 112, ‘Some of the plaintiff’s customers who read the newspaper item … not unreasonably form the conclusion that the plaintiff … was a man who sympathised with the aims of the Communist Party.’ However, in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [140], ‘Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference.’
       
    • The imputation of being an adulterer: In Clark v Vare [1930] NZLR 430 and Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, imputations of adultery was held to be defamatory. However, in Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708, Hutley JA states at 710:

    The imputation of an improper adulterous relationship would be harder to justify as not being defamatory, but the reputations of Anthony and Cleopatra have not been lowered in the eyes of the public by their romance, and in other days, the title of the King's Mistress was one of honour. Despite Rofe QC's confident assertion that the imputation of adultery must lower the two appellants in the public esteem, even in these days in which fault has been officially expelled from the law of domestic relations, passions between the powerful and glamorous may have a quality which transcends middle- class morality. The expulsion of the concept of fault in domestic relations means that as far as the State is concerned anything goes.

    • The imputation of being a homosexual: The imputation of homosexuality in recent history has been capable of being defamatory. For example, in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [140]:

    At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.

    However, in Tassone V Kirkham [2014] SADC 134 at [35] Judge Cole held:

    The email clearly conveys that the plaintiff was homosexual. I do not consider, in the context of this case, that that aspect of the meaning of the email is, by itself, defamatory in the general community of contemporary South Australia, or among the recipients of the email.

     

    5. THE TESTS DO NOT REQUIRE THAT THE EFFECT OF THE TEST HAS ACTUALLY OCCURRED. 
     

    The tests do not require that the effect of the test has actually occurred. For example, the test that a person’s reputations must be diminished in their community, does not actually have to be diminished. Instead, it’s whether the effect of the test has the ‘tendency or likelihood’ of it occurring: Thornton [2010] EWHC 1414 (QB) at [93] per Tugendhat J. For further support, in Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin used the word ‘tend’ and in Parmiter v Coupland (1840) 6 M&W 105 at 342 per Parke B said whether the publication ‘would be likely to produce that effect’.

     

    6. IT IS NOT REQUIRED TO PROVE THAT THE IMPUTATION IS UNTRUE

     

    It is not required to prove that the imputation is untrue. In Age Company Ltd v Elliott [2006] VSCA 168, per Buchannan JA with whom Chernov and Ashley JJA agreed:

    [14] It is well established at common law that a plaintiff in a defamation suit is not required to plead or prove that the imputations of which he complains are false.

    [15] … As falsity is not an element of the cause of action, no presumption of falsity can arise from the failure of the defendant to plead truth. The existence of the presumption has been accepted in common law jurisdictions for so long that it may now be too late to correct the error from which it arose.

     

    7. THE PLAINTIFF DOES NOT HAVE TO SHOW THAT THE DEFENDANT INTENDED THE MATTER TO BE DEFAMATORY

     

    The plaintiff does not have to show that the defendant intended the matter to be defamatory. The intention of the publisher is irrelevant. In Hulton (E) & Co v Jones [1910] AC 20, HL:

    23. … The statement of the writer with respect to his own intention is irrelevant …

    24. … A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both … If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff.

    This was restated in Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173 (Diplock LJ):

    …the meaning intended to be conveyed by the publisher of the words is irrelevant. However evil the imputation upon the plaintiff's character or conduct he intended to communicate, it does not matter if, in the opinion of the adjudicator upon the meaning of the words, they did not bear any defamatory meaning. However innocent an impression of the plaintiff's character or conduct the publisher of the words intended to communicate, it does not matter if, in the opinion of the adjudicator upon the meaning of words, they did bear a defamatory meaning: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173 (Diplock LJ)

    Further restated in Berkoff v Burchill [1996] 4 All ER 1008 at 151:

    It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher may colour the meaning.

    And restated in  Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at [58], 'The intention of the publisher is irrelevant and so also is the meaning those to whom the words were published might give the words.' Finally, this was restated in Dow Jones & Company Inc v Gutnick [2002] HCA 56, at [25], ‘…a defendant may be liable even though no injury to reputation was intended…’

     

    8. AN IMPUTATION MAY BE DEFAMATORY UNDER MULTIPLE TESTS

     

    An imputation may be defamatory under multiple tests. For example, in Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022, a low-grade pornographic magazine published a water polo player who’s breasts were exposed with sexual overtones. The matter qualified for both the ‘ridicule or contempt’ test and the ‘shunned or avoided’ test. It was held at [40]:

    The point is that to state of a person “the plaintiff is a person whose breasts were exposed to the readers of a pornographic magazine” arguably means nothing disparaging of the person whose breasts were so exposed. It is the context in which they were photographically exposed that gives rise to the defamatory sting namely, that the person is held up to ridicule or contempt and is likely thereby to be shunned and avoided.

     

    9. THE IMPUTATION MUST IDENTIFY THE ACT OR CONDITION ATTRIBUTED TO THE PLAINTIFF

     

    The imputation must identify the act or condition attributed to the plaintiff. In Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, Zoo Magazine published an image of a member of the Greens Party where her head was photo-shopped onto a woman in her underwear. The defense submitted that the article and image was plainly a joke. The imputation was, ‘4B The plaintiff's pro-asylum seeker stance is ridiculous.’ McCallum J held:

    [34] The difficulty lies in formulating the imputations it conveys. I would accept that the imputation that the plaintiff is not a politician to be taken seriously is bad in form on the basis that it is rhetorical. It says, "this is what you should think of the plaintiff", not "this is what the plaintiff is". It amounts to an exhortation, not the attribution of an act or condition

    [40] The imputation attributes the condition of ridiculousness not to the plaintiff but to her stance on a political policy. It does not identify any act or condition attributed to her. In my view, imputation 4B should be struck out…

     

    9. A) THE ACTION OF CONDITION ATTRIBUTED TO THE PLAINTIFF IS FIRSTLY, A MATTER OF DEGREE, AND SECONDLY, THE DEGREE WILL BE DEPENDENT UPON THE FACTS AND CIRCUMSTANCES OF THE CASE.

     

    The requirement to identify the action of condition attributed to the plaintiff is firstly, a matter of degree, and secondly, the degree will be dependent upon the facts and circumstances of the case. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 2:

    The requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Rules of Court, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. In John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706 this Court approved of Hunt J's leaving to the jury an imputation that the plaintiff was a criminal associate of drug dealers. No one suggested that it was necessary to identify with particularity the crime or crimes alleged to have been committed by the plaintiff, even though it is always theoretically possible to be more specific about an allegation that a person is a criminal.

    Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and nonspecific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says "X is disgusting", the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.

    Beech-Jones J affirmed this principle n Kenny v Australian Broadcasting Corporation [2014] NSWSC 190:

    [49] ...consistent with the discussion in Drummoyne, in some cases such imputations will suffice if the alleged defamer has left the matter hanging. This is more likely to be so in the case of extreme ridicule where the defamer does not delve into the detail as to why the plaintiff should be depicted in a humiliating way, although the implication is that there is something about them or their conduct which means that they deserve it.

    [51] In a case such as this, imputation (c) does state something about Mr Kenny's conduct or condition and also provides the best particularisation that can reasonably be expected. The fact that further particulars cannot be provided flows from the very nature of the extreme ridicule involved. Consistent with Drummoyne, no further particularisation is required.

     

    10. AN IMPUTATION THAT ONLY CONTAINS THE CONSEQUENCE OF A DEFAMATORY MEANING INTO THE IMPUTATION ITSELF, MAY BE STRUCK-OUT

     

    An imputation that only contains the consequence of a defamatory meaning into the imputation itself, may be struck-out. To contrast, an imputation should contain the defamatory meaning, not purely the consequence of the defamatory meaning. I forewarn the reader that the following section is quite wordy and so I provided ample commentary.

     

    In Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 April 1993), the Sydney Morning Herald published an article titled, ‘Gilt trip is over as Resort closes for $8 million facelift’. The plaintiff relied the following two imputations:

    (f) That the plaintiffs had so conducted themselves in their business that they should be shunned and avoided by persons seeking to purchase furniture.

    (g) That the first plaintiff has so conducted himself as to deserve to be held up to public ridicule.

    Levine J held:

    BC9304563 at 4: This immediately, in my view, creates difficulties for a pleader. What is involved is the formulation of the imputation in the "proper" way ascribing an act and condition and including in it the assertion as to the deserving of ridicule or of being shunned and avoided, which assertion of course incorporates the usual allegation as to the consequence of the publication of the defamatory imputation itself.

    BC9304563 at 5: I see no reason in principle why such incorporation would make any imputation defective provided the imputation otherwise is appropriate in form and of course is capable of arising. I have little reservation in holding that the article is capable of giving rise to imputations reflecting ridicule. Nonetheless it is argued that in relation to (f) and (g) the "conduct" as referred to in each (including (f) as amended) has not been identified as providing the basis for the plaintiff being shunned and avoided or being held up to public ridicule.

    Imputations (f) and (g) are struck out.
     

    Later, in Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 July 1993), the plaintiffs amended the original imputations:

    BC9304564 at 2: The new imputations, imputations (d) and (e), are:

    (d) That the Plaintiffs, by reason of the First Plaintiff being a person lacking in good taste in respect to furniture and interior decorations, should be shunned and avoided by persons seeking to purchase furniture.

    (e) That the First Plaintiff, by reason of his lacking in good taste in respect to furniture and interior decorations, is deserving of being held up to public ridicule.
    ...
    BC9304564 at 4: For the plaintiff it is contended that some comfort can be found for the form of the pleaded additional imputations in the judgment I delivered on 15 April 1993. In that judgment I said that the article is capable "of giving rise to imputations reflecting ridicule". That is the view I then formed and is the view to which I adhere: I also indicated the difficulty for the pleader, if what I there said is correct, to formulate an imputation of ridicule as distinct from formulating an imputation which includes no more than, as is the case here, the pleading of a consequence of the publication of the defamatory imputation, namely that the plaintiff is deserving of being held up to ridicule.

    BC9304564 at 5: In summary, therefore, I am of the view that imputation (d) should be struck out by reason of its form.

    In Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, McCallum J endorsed the Scali decision provided commentary at [18]-[19]:

    The burden of the decision (the 15 July decision), I think, is that the imputations were liable to be struck out because they were rhetorical, by reason of the inclusion of the exhortation that the plaintiff "should be shunned and avoided" and was "deserving of being held up to public ridicule". In each case, the rhetorical exhortation added nothing to a separate, non-contentious imputation (that the first plaintiff was a person lacking in good taste in respect to the quality and style of furniture and interior decorations he provides for buildings).

    … What emerges from the two Scali decisions is that an imputation which does no more than to appeal to rhetoric ("the plaintiff should be shunned and avoided" or "the plaintiff deserves to be held up to ridicule") is bad in form, since it achieves no more than to assert the consequence of publication of a defamatory imputation and, in so doing, fails to distil the act or condition allegedly attributed to the plaintiff by the matter complained of by reason of which his or her reputation has been damaged.

    This principle has also been affirmed in Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586. In that case, a photograph of a man partly naked and strapped to a piano was incorrectly described in the Sun Herald as being a photograph of the plaintiff. Levine J stated:

    [20] Imputation (c) as presently framed is:

    4(c) the Plaintiff behaved in such a way as to deserve to be ridiculed by the Sun Herald newspaper.

    [21] In that form, it is fraught with problems because it falls within what I would describe, for present purposes, as the Scali area of difficulty in pleading ridicule (Nick Scali & Co Pty Ltd v John Fairfax Publications Pty Ltd, unreported, Levine J, 15 April 1993).

    [22] The plaintiff has, however, proposed a substitute imputation to this effect:

    The plaintiff, by reason of permitting himself to be photographed partly naked in Hyde Park with bonds, has justifiably exposed himself to the ridicule of the defendant.

    [23] Such an imputation, in my view, is proper in form, capable of arising and capable of being defamatory. I would otherwise strike out the presently pleaded imputation (c).

     

    11. HARMLESS JOKES DO NOT QUALIFY AS DEFAMATORY

     

    Harmless jokes do not qualify as defamatory. For example, in Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564, the Herald Sun published the following:

    South Sydney's poor showing in the 2002 NRL season may be linked to coach Craig Coleman being put in child care as a toddler, according to a psychologist.

    Asked by Club officials to assess Coleman's performance this year, a psychologist concluded that the Souths' disappointing 5-19 record stems from "abandonment and attachment issues" Coleman harbours after spending 4 days every week in childcare between the ages of 2 and 5.

    In making his finding, the psychologist dismissed suggestions that Souths finished second last simply because they didn't have any decent players.

    "It's my belief that Craig's somewhat fractured relationship with his mother as a child hasn't provided him with adequate communication and intimacy skills", the psychologist said." He has grown up feeling abandoned and rejected and lacks the necessary confidence to make himself understood, which isn't something you want in a football coach". The psychologist said placing Coleman in childcare could explain big losses in rounds 19, 21, 22 and 23".

    Levine J held at [22]-[23]:

    I have come to the view, which I will state now, that this matter complained of is incapable of defaming either plaintiff in the way pleaded (or indeed, in my view, at all). My reason for so stating is that this could not, in my view, be a clearer case where the ordinary reasonable reader would understand from reading whole of the material that none of its contents was to be taken seriously. If a reader took the whole of this material, or any part of it, as a joke but nonetheless felt there was something "beyond a joke", in my view that reader would be neither ordinary nor reasonable.

    I have come to the view that this article itself, and the more so by reference to the surrounding material, is self-evidently absurd. The ordinary reasonable reader would understand that what was being published was to be understood only as an absurd joke. That reader, if ordinary and reasonable, simply could not draw from the matter complained of imputations of the kind pleaded here. No ordinary reasonable reader would understand this article to convey anything disparaging of the plaintiffs and thereby hold them up to hatred, ridicule or contempt, or by its mere publication, or any reference at best to psychological deficiencies or incidents of upbringing, to bring about them being shunned and avoided.

     

    11. A) A JOKE MAY STILL QUALIFY AS DEFAMATORY IF IT IS LIKELY TO SUBJECT THE PLAINTIFF TO RIDICULE

     

    A joke may still qualify as defamatory if it is likely to subject the plaintiff to ridicule. In Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, Zoo Magazine published an image of a member of the Greens Party where her head was photo-shopped onto a woman in her underwear. The defense submitted that the article and image was plainly a joke. However, McCallum J stated:

    [33] In my view, although the matter complained of in the present case would plainly be understood as a joke of sorts, it cannot be concluded that the article is incapable of being defamatory of Senator Hanson-Young.

    [37] …in my view, that the matter complained of in the present case is plainly capable of being found to be defamatory of Senator Hanson-Young. In particular, in my view the article is capable of being understood as subjecting her, as an "entirely blameless plaintiff" to "more than a trivial degree of ridicule".

     

    12. VULGAR ABUSE OR INSULTING NAME CALLING DOES NOT AUTOMATICALLY QUALITY AS DEFAMATORY

     

    Vulgar abuse or insulting name calling does not automatically quality as defamatory. Vulgar abuse can in fact be defamatory, but it does not follow that it is always defamatory. The opposite is also true, that is, vulgar abuse does not mean that the matter was not defamatory. This principle was established in Mundey v Askin [1982] 2 NSWLR 586 at 371-372 and later restated in Bennette v Cohen [2005] NSWCA 341 at [48]-[51].

     

    13. IF THE PLAINTIFF BUILT THEIR REPUTATION THROUGH AN ILLEGAL ACTIVITY, THE COURT WILL NOT CONSIDER AN IMPUTATION WHICH HAS DAMAGED THEIR REPUTATION.

     

    If the plaintiff built their reputation through an illegal activity, the court will not consider an imputation which has damaged their reputation. ‘The rationale for this test is that the court will not assist a plaintiff seeking compensation for an illegal activity.’[10]

    In Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339, the defendants published an article in a newspaper which referred to the plaintiff quite harshly. They wrote:

    [Kings Cross Whisper are] purveyors of filth blatantly flouting their evil wares in the main street trying to corrupt teenagers and children.

    It is believes that some of those responsible for the publication are associated with Nazi activities in Australia.

    This filthy rag is the sort of thing one would expect to be purveyed in dark corners, and it is staggering that low creatures, using filth to apparently finance the activities of the discredited Nazi Party, should be so sure action would not be taken against them that they would peddle their filth so openly. Why are these evil monsters so sure of themselves? Apparently because this rag has been published for some time in Sydney quite immune from Government and police action.

    Like many pedlars before them, these sellers of filth have even had the utter cheek to say they have BIC approval. The BIC ban – with all such a ban implies – is the answer to that most false of claims. We do not in Broken Hill want Nazi Party propagandists; we do not want pedlars of pornography. Let us run these monsters out of this city!

    The alleged defamatory material was targeted towards a company which was illegal. The company was illegal because it was ‘publishing and distributing a news-sheet without being registered as a distributor of printed matter under s 21 of the Obscene and Indecent Publications Act, 1901.’  

    Moffitt J.A. held at 344:

    The relevant principles are dealt with in Smith’s Newspapers Limited. v. Becker (1932) 47 C.L.R. 279 and Wilkinson v. Sporting Life Publications Ltd. (1933) 49 C.L.R. 365. If a person carries on a trade, business, or calling illegality, then the law will not aid him in a defamation action to recover compensation is respect of damage to any reputation acquired in so carrying on such trade, business or calling. It is not a question of the defendant justifying the defamatory statement, but of the court declining its aid to the recovery of compensation for damage to a reputation acquired in an illegal pursuit. It is not sufficient, in order to defeat a claim for damages, merely to show that the defamatory statements which were published concerned or referred to an illegal pursuit, for such statements are actionable if they reflect upon and damage a plaintiff’s reputation in respects other than in relation to the illegal pursuit.

     
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    Summary Checklist

     

    The three separate tests for whether an imputation is defamatory are:

    I. General Test

    1. The imputation must damage the plaintiffs reputation.

    2. To determine whether the plaintiff’s reputation has been damaged, the imputation must likely cause people to think less of the plaintiff.

    I. A) Business/Professional Reputation

    1. The same general test applies to a person’s personal reputation, a person’s business reputation, or a person’s professional reputation.

    2. If the imputation is in relation to a person’s business, the imputation must involve ‘some reflection upon his personal character or upon the mode in which he carries on his business, his business reputation.’

    3. Reputational damage to a person’s business or goods does not qualify for defamation. Damage to a person’s business reputation does qualify for defamation.

    4. A defamatory imputation does not require an imputation of moral fault or defect in personal character.

    II. Shunned or avoided

    1. Shunned or avoided: Another test for whether the imputation is defamatory is if the imputation causes others to shun or avoid the plaintiff.

    2. It is not necessary for the plaintiff’s reputation to be damaged.

    3. It is irrelevant whether the plaintiff is at fault or whether the plaintiff is immoral.

    III. Hatred Contempt or Ridicule

    1. An imputation may be defamatory if it exposes the plaintiff the ‘hatred, contempt, or ridicule.’

    2. It is not a requirement that the plaintiff’s reputation is damaged.

    III. A) Ridicule

    1. For ridicule, the plaintiff must be subjected to ‘more than a trivial degree of ridicule’.

    2. It is irrelevant whether the plaintiff is at fault.

    General Principles

    The following principles apply to all three tests where appropriate:

    1. The imputation must be viewed through the lens of the ordinary reasonable person.

    2. The ordinary reasonable person takes the views of the general community, not sections of the community.

    2. A) The ‘general community’ does not mean all of the community.

    3. Must take into account current social trends.

    4. An imputation may be defamatory under multiple tests.

    5. The imputation must identify the act or condition attributed to the plaintiff.

    6. An imputation that only contains the consequence of a defamatory meaning into the imputation itself, may be struck-out. To contrast, an imputation should contain the defamatory meaning, not purely the consequence of the defamatory meaning.

    7. Harmless jokes do not qualify as defamatory.

     7. A) A joke may still qualify as defamatory if it is likely to subject the plaintiff to ridicule.

    8. Vulgar abuse or insulting name calling does not automatically quality as defamatory. Vulgar abuse can in fact be defamatory, but it does not follow that it is always defamatory. The opposite is also true, that is, vulgar abuse does not mean that the matter was not defamatory.

    9. If the plaintiff built their reputation through an illegal activity, the court will not consider an imputation which has damaged their reputation.

     
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    Bibliography

     

    Books

     

    1. Balkin, R P and J L R Davis, Law of Torts (LexisNexis Butterworths, 5th Edition, 2013)
       
    2. Collins, Matthew, Collins on Defamation (Oxford University Press, 2014)
       
    3. Davies, Martin and Ian Malkin, Focus: Torts (LexisNexis Butterworths, 7th Edition, 2015)
       
    4. Hitchens, Lesley, Media Law in Australia (Wolters Kluwer: Law & Business, 2014)
       
    5. Mendelson, Danuta, The New Law of Torts (Oxford University Press, 3rd Edition, 2014)
       
    6. Mendelson, Danuta, The New Law of Torts: Case Book (Oxford University Press, 3rd Edition, 2014)
       
    7. Rolph, David, Defamation Law (Thomson Reuters, 2016)
       
    8. Sappideen, Caroline and Prue Vines (eds), Fleming′s The Law of Torts (Thomson Reuters, 10th Edition, 2011)
       
    9. George, Patrick, Defamation Law in Australia (LexisNexis Butterworths, 2nd Edition, 2011)

     

    Journal articles

     

    1. Baker, Roy, ‘Defamation and the Moral Community’ (2008) 13 Deakin Law Review
       
    2. Gould, Kim, ‘The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton’ (2015) 41 Australian Bar Review

     

    cases

     

    1. Age Company Ltd v Elliott [2006] VSCA 168
       
    2. Alexander v Jenkins (1892) 1 QB 797
       
    3. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
       
    4. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
       
    5. Bennette v Cohen [2005] NSWCA 341
       
    6. Berkoff v Burchill [1996] 4 All ER 1008
       
    7. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449
       
    8. Burton v Crowell Pub Co 82 F 2d 154 (1936)
       
    9. Byrne v Deane [1937] 1 KB 818
       
    10. Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708
       
    11. Capital and Counties Bank v Henty (1882) LR 7 App Cas 741
       
    12. Carrier v Bonham [2001] QCA 234
       
    13. Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331
       
    14. Chakravarti v Advertiser Newspapers Limited [1998] HCA 37
       
    15. Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181
       
    16. Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201
       
    17. Clark v Vare [1930] NZLR 430
       
    18. Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564
       
    19. Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
       
    20. Cornes v the Ten Group Pty Ltd and Ors [2012] SASCFC 99
       
    21. Cross v Denley (1952) 52 SR (NSW) 112
       
    22. Dow Jones & Company Inc v Gutnick [2002] HCA 56
       
    23. Drummond-Jackson v British Medical Association [1970] 1 WLR 688
       
    24. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
       
    25. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443
       
    26. Farquhar v Bottom [1980] 2 NSWLR 380
       
    27. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
       
    28. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171
       
    29. Grundmann v Georgeson [1996] QCA 189
       
    30. Haddon v Forsyth [2011] NSWSC 123
       
    31. Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029
       
    32. Henry v TVW Enterprises Ltd (1990) 3 WAR 474
       
    33. Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682
       
    34. Hulton (E) & Co v Jones [1910] AC 20, HL
       
    35. John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706
       
    36. John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28
       
    37. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50
       
    38. John Fairfax v Punch (1980) 31 ALR 624
       
    39. Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586
       
    40. Kenny v Australian Broadcasting Corporation [2014] NSWSC 190
       
    41. Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339
       
    42. Lewis v Daily Telegraph Ltd [1964] AC 234
       
    43. McDonald v North Queensland Newspaper Company Ltd [1997] 1 Qd R 62
       
    44. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
       
    45. Mirror Newspapers v Jools [1985] FCA 181
       
    46. Morgan v Lingen (1863) 8 LT 800
       
    47. Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467
       
    48. Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022
       
    49. Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69
       
    50. Parmiter v Coupland and another (1840) 151 ER 340
       
    51. Potts v Moran (1976) 16 SASR 284
       
    52. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
       
    53. Random House Australia Pty Ltd v Abbott [1999] FCA 1538
       
    54. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
       
    55. Rogers v Nationwide News Pty Limited [2003] HCA 52
       
    56. Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 April 1993)
       
    57. Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 July 1993)
       
    58. Sim v Stretch [1936] 2 All ER 1237
       
    59. Slatyer v Daily Telephraph Co Ltd (1908) 6 CLR 1
       
    60. Smith’s Newspapers Limited v Becker (1932) 47 CLR 279
       
    61. South Hetton Coal Co Ltd v North‑Eastern News Association Ltd [1894] 1 QB 133
       
    62. Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
       
    63. Tassone v Kirkham [2014] SADC 134
       
    64. Thornton [2010] EWHC 1414 (QB)
       
    65. Tournier v National Provincial and Union Bank of England [1924] 1 KB 461
       
    66. Villers v Monsley (1769) 2 Wils 403
       
    67. Wilkinson v Sporting Life Publications Ltd (1933) 49 CLR 365
       
    68. Y and Z v W [2007] NSWCA 329
       
    69. Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581
       
    70. Zbyszko v New York American Inc (1930) 239 NYS 411
     
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    Endnotes

    [1] David Rolph, Defamation Law (Thomson Reuters, 2016) 6.220.

    [2] The following phrases are different expressions of the one point:

    • ‘It is disparagement of reputation which is the essence of an action for defamation.’: In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [32].
       
    • ‘[Damage is] the gist of an actionable imputation.’ Dow Jones & Company Inc v Gutnick [2002] HCA 56 at [3].
       
    • ‘[I]t is defamation's concern with reputation, and the significance to be given to damage (as being of the gist of the action)...’: Dow Jones & Company Inc v Gutnick [2002] HCA 56 at [42].
       
    • ‘The essence of the action in defamation was that the publication of defamatory matter operated as a disparagement of the plaintiff's reputation’: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at [11].
       
    • ‘At common law, in general, an imputation, to be defamatory of the plaintiff, must be disparaging of him.’: Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at [11].

    [2] I give credit for compiling this list to Kim Gould, 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review at footnote 261.

    [3] Matthew Collins, Collins on Defamation (Oxford University Press, 2014) [6.18].

    [4] The following phrases are different expressions of the one point:

    • ‘…[whether the publication would] tend to lower the plaintiff in the estimation of right-thinking members of society generally.’: Sim v Stretch [1936] 2 All ER 1237 at 1240. However, the words ‘right-thinking’ have been criticised on several occasions. In Slatyer v Daily Telephraph Co Ltd (1908) 6 CLR 1 at 7:

    The only criticism that I have to make upon that passage, and indeed upon the whole of the judgment, which, I think, accurately expresses the law and the proper rule to be applied to the case, is as to the use of the phrase “right thinking ” which has unfortunately come to have an ambiguous meaning. But, read in the light of the context, it obviously means a man of fair average intelligence.

    And in Potts v Moran (1976) 16 SASR 284 at 303:

    I prefer to make the criterion the estimation of the reasonable man rather than the right thinking man, a phrase which, to my mind, involves questionbegging assumptions and circuity of reasoning. It is hard to feel much confidence in a conclusion drawn from a conflation of the two propositions, “This conduct is wrong because right thinking persons condemn it” and “Right thinking persons condemn this conduct because it is wrong”.

    Finally, in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [38]:

    The expression "right‑thinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them.

    • ‘…[whether the publication] is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the plaintiff].’: Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 172 per Jordan CJ.
       
    • ‘[The publication is] of a kind that is likely to lead ordinary decent folk to think less of the person about whom it is made.’: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88.
       
    • ‘…a statement about the plaintiff of a kind likely to lead the recipient as an ordinary person to think the less of him.’: Mirror Newspapers Ltd. V. World Hosts Pty. Ltd. (1979) 141 CLR 632 at [11].
       
    • ‘To be defamatory of the plaintiff, the imputation relied upon must be such as is likely to cause ordinary decent folk in the community, taken in general, to think the less of him.’: Boyd v Mirror Newspapers [1980] 2 NSWLR 449 at 452 (per Hunt J).
       
    • ‘So far as is relevant to the matter now under consideration, the legal issue which had to be decided was whether the material complained of was defamatory of the plaintiff in the sense that it was to his "discredit ... [tended] to lower him in the estimation of others [(Gatley on Libel and Slander, 8th ed (1981) par 31)].’: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [57].
       
    • ‘A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [3].
       
    • ‘…whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36].

    [4] David Rolph, Defamation Law (Thomson Reuters, 2016) 6.240.

    [5] Kim Gould, 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review 50.

    [5] In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [37]:

    The reference in the general test, as stated in Sim v Stretch, to a plaintiff being "lowered in the estimation" of the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect.

    [6] For more cases, see Pratten v Daily Labour [1926] VLR 115; Potts v Moran (1976) 16 SASR 284 (politician) ; Fairfax v Punch (1980) 31 ALR 624 (politician); Baric v Doherty [1987] Aust Torts Reports 80-135 (solicitor); Queensland Newspapers v Palmer [2011] QCA 286; Pratten v Daily Labour Ltd [1926] VLR 115 (politician); Random House Australia v Abbott (1999) 94 FCR 296 (politician); Brander v Ryan (2000) 78 SASR 234 (politician); Steiner Wilson & Webster Pry Ltd v Amalgamated Television Services Pry Ltd (2000) Aust Torts Reports 81-537 (ACTSC) (business); Shepheard v Whitaker (1875) LR 10 CP 502 (business); Aspro Travel Ltd v Owners Abroad Group plc [1995] 4 All ER 728 (CA) (business); Coyne v Citizen Finance Ltd (1991) 172 CLR 211 (business); Hewitt v Queensland Newspapers Pry Ltd (SC(ACT), Higgins J, 5 June 1995, unreported) (business); Ratcliffe v Evans [1892] 2 QB 524 (CA) (business).

    [6] Kim Gould, 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review 50.

    [7] In Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 at [34], it was held:

    The imputation of dishonesty alleged was the absence of a quality which, I consider, must be taken as being an essential attribute of a teacher in the proper performance and discharge of his or her professional duties. To be said to be dishonest directly reflects on both the personal and professional character and qualities of persons in the position of the appellants. To return to the submission put by counsel for the appellants, the imputation could admit of only one answer, namely that it was defamatory.

    This was endorsed in Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 at [19]:

    Ordinarily, the imputation that a person has lied or is guilty of dishonest behaviour will be regarded as defamatory. This inference will be even more readily drawn if the imputation is that the person lied or was dishonest in the course of his or her business.

    [7] David Rolph, Defamation Law (Thomson Reuters, 2016) 6.80.

    [8] Caroline Sappideen and Prue Vines (eds), Fleming′s The Law of Torts (Thomson Reuters, 10th Edition, 2011) 25.20

    [9] David Rolph, Defamation Law (Thomson Reuters, 2016) 6.290.

    [10] Amanda Stickley, Australian Torts Law (LexisNexis Butterworths, 4th Edition, 2016) 22.44.

     

     
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    The Ultimate Guide to the Ratio Decidendi & Obiter Dicta

    Disclaimer.png

     

    Over the years, there has been a lot written on the subject of what exactly constitutes the ratio decidendi. Professor Goodhart kicked off the debate in 1930 with his article Determining the Ratio Decidendi of a Case and legal academics have been arguing ever since. Turns out, determining the true ratio is not as simple as identifying ‘the reason for deciding.’ Unfortunately, the precedent judge doesn’t explicitly announce the ratio so it’s up to future judges and everyone else to figure it out. The reason for this, according to Cross & Harris, is that if the mere act of declaring the ratio made it binding, then judges would have infinite law-making power. They would be like gods among mere humans. Cross & Harris write:

    If a judge has this amount of freedom to determine which of his observations is ratio decidendi and which obiter dictum, is there not a grave danger that he will exercise an undue influence on the future development of the law? He only has to state twenty propositions and say that he bases his decision on each of them to have created twenty new legal rules.[1]

    Thus, this article is my attempt to simplify and clarify the ratio decidendi for the Australian jurisdiction. To do this, I’ve considered the relevant sections in 9 books, 12 academic journal articles, and 38 cases.

    First, I start with a summary checklist of what constitutes as the ratio decidendi and the obiter dictum. Secondly, I provide an explanation on the distinction between descriptive ratio vs prescriptive ratio. This is fundamental for understanding the difference between identifying the ratio vs applying the ratio to the matter at hand. Then, I explain that the ratio is applied by way of analogy and I give some suggestions on how to escape the binding ratio. Thirdly, I provide an in-depth description on what constitutes a) the ratio decidendi, b) obiter dictum, and c) binding obiter dictum from the High Court. Lastly, I provide some suggestions on how to rapidly find the ratio if you’re in desperate need.

    Before we proceed, there is a distinction that I want to emphasise: the distinction between law and empiricism. What the law is, does not necessarily imply how lawyers and judges actually think and behave. For example, some theories claim that judges have an intuitive hunch for the solution of a case, then reason backwards, that is, they find authorities and believable reasons for why their hunch is correct.[2] How judges think and behave is an empirical question and cannot be answered by legal rules. Therefore, the following article is a legal analysis of what the ratio and dictum is, not an empirical description of what really occurs in courts and in the minds of lawyers and judges.

     
     
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    Summary Checklist: Ratio & Dicta

    THE RULES OF THE RATIO DECIDENDI

    1.     Must be a necessary step to the conclusion.

    2.     Must be directly related to the issue.

    3.     Must come from disputes of law, not disputes of fact.

    4.     Must be argued in Court.

    5.     The facts of the precedent case shape the level of generality.

    6.     The later courts decide the level of generality.

    7.     When a precedent has multiple reasons, all reasons are binding.

    8.     The ratio can come in multiple forms:

    a.      Common law rules;

    b.     Interpretation of statute;

    c.      Interpretation of the common law rules.

    9.     Where there are multiple judges:

    a.      The majority of judges must agree to be binding.

    b.     If the judges have different reasons, find essential areas of agreement.

    c.      If the majority of judges agree on the order but do not agree on the reasons, cannot discard the precedent.

    d.     Cannot construct a ratio by the aggregation of various elements of separate reasons.

    10.   A precedent can be binding without a ratio.

    11.   When the ratio cannot be determined, later courts may not be bound.

    12.   Not all cases must have a ratio.

    13.   Unstated assumptions are not the ratio.

    THE RULES OF OBITER DICTA

    1.     Generally, obiter dictum is not binding;

    a.      Except, the High Court’s ‘seriously considered dicta’ is binding.

    2.     Obiter dictum is persuasive

    a.      However, obiter dicta can have different degrees of weight.

     
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    The Descriptive-Prescriptive Distinction

    Before we get into the actual law, we will first examine the distinction between Descriptive ratio decidendi and Prescriptive ratio decidendi. The essence of the distinction is that the descriptive ratio is the ratio from the original case and the prescriptive ratio is how the ratio may be applied to a future case. I give credit to Professor Julius Stone for expounding this distinction in his article, The Ratio of the Ratio Decidendi.[3]

    DESCRIPTIVE RATIO DECIDENDI

    Ratio decidendi is Latin for ‘the reason for deciding.’ This ‘reason’ is not 1) the facts of the case, 2) the law that the case applies, or 3), the orders of the case. Instead, it’s the ‘necessary step’ that the judge needed to resolve the case.

    For example, consider the following hypothetical judgment from the book Legal Technique by Christopher Enright. Imagine that there’s a Dog Act 1947 and s 6 states: ‘A person may bring an action against the owner of a dog if the dog enters land owned by that person.’

    Now, imagine the following extract is the judgment:

    Elisabeth owns a meadow. Elisabeth sues Kit Walker because Kit allowed his pet wolf Devil to walk onto her meadow and molest her pet rabbit, much to the distress of both Elisabeth and the rabbit. Elisabeth now brings proceedings under s 6 of the Dog Act 1947.

    Three things are clear regarding a breach of s6. First, Elisabeth's meadow is land. Second, Elisabeth is owner of the land so Elisabeth is entitled to bring the action in her own right. We add that this would be the case even if Elisabeth had not discharged her mortgage to the Rural Bank some years ago. It would not have been necessary in that case for the action to be brought by both Elisabeth and the Rural Bank as co-plaintiffs. Third, Devil has entered Elisabeth's land.

    What is not immediately clear is whether Devil, a wolf, is a dog within the meaning of s 6 of the Dog Act 1947. From a zoological perspective a wolf is a member of the dog family. On the surface this may seem conclusive on the question of whether a wolf is a dog. However a number of the provisions of the Dog Act 1947 referring to dogs clearly mean only dogs of a type which are ordinarily domesticated. Given this we feel that we have to interpret s 6 in the same way and so find that in s 6 ”dog" means only a dog of a type which is ordinarily domesticated. In this case the offending animal is a wolf. While the particular wolf was domesticated, as a species wolves are not usually domesticated.

    For this reason Devil is not a dog within the meaning of s6 of the Dog Act so the plaintiff fails in her claim.

    The ratio decidendi from this fictional judgment was the interpretation of the word “dog” in s 6 of the Dog Act. Reason, it was the only part of the judgment that needed an extra step. The other parts of the judgment were simply the facts, the existing law, and the application of the law to the facts. Therefore, the ratio decidendi from this fictional judgment was: the term “dog” under s 6 of The Dog Act 1947 “means only a dog of a type which is ordinarily domesticated” and did not extend to wolves.

    To illustrate this point further, there was a phrase in this judgment that sounded like the ratio but was in fact, obiter dictum:

    We add that this would be the case even if Elisabeth had not discharged her mortgage to the Rural Bank some years ago. It would not have been necessary in that case for the action to be brought by both Elisabeth and the Rural Bank as co-plaintiffs.

    Obiter dicta are statements within a judgment that do not constitute as the ratio and is subsequently non-binding on future cases. The statement sounded authoritative and definitive and had the feel of being ratio, however, it was obiter because Elizabeth did not discharge ‘her mortgage to the Rural Bank,’ and therefore, the statement was not necessary to the decision. The phrase ‘her mortgage to the Rural Bank’ had nothing to do with the matter.

    Now that we’ve examined the descriptive ratio, we need to examine the prescriptive ratio, that is, how the precedent ratio may apply to future cases.

    PRESCRIPTIVE RATIO DECIDENDI

    There is a logical dichotomy between the descriptive ratio decidendi and the prescriptive ratio decidendi.[4] We may be able to identify the ratio in the precedent case but it is not possible to directly apply it to a future case. Reason being, the precedent case and the future case will never be precisely identical. There will always be distinctions between the two. What is the probability that identical facts in the past will occur in the future? Very slim. Thus, there needs to be a level of generality.

    LEVEL OF GENERALITY

    I define the ‘level of generality’ as the transformation of a single judgment to the future judgment. Inevitably, a transformation needs to occur as a precedent may be utterly useless if we wait for the exact facts of the case to exist again. Thus, the level of generality is the determination of how similar or different the facts need to be from the old case to the new case.

    To briefly illustrate, the book Laying Down the Law gives us a good example:

    In Donoghue v Stevenson [1932] AC 562 … the House of Lords held that the manufacturer of a bottle of ginger beer could be liable to the consumer if, before the bottle was sealed, the ginger beer was contaminated by the remains of a snail and the consumer became ill as a result of drinking it. At the lowest level of abstraction the decision would be binding on later courts on in cases with precisely the same facts. On that basis, it would not be binding in a later case where the drink was Coca-Cola. But, in terms of the legal rule, why should there be a distinction between ginger beer and Coca-Cola? Logic suggests that the principle should apply, at the lease, to all food and drink which is packaged so as to prevent inspection.[5]

    Thus, if we stopped at the level of describing the ratio, Donoghue v Stevenson would only be applicable to cases that involve: 1) Women, 2) from Scotland, 3) in the year of 1932, 4) in which harm can only come from snails, 5) in ginger beer bottles, 6) placed negligently, 7) by Mr. Stevenson, 8) etc., etc.

    To push this further, Professor Julius Stone’s article, The Ratio of the Ratio Decidendi,[6] listed a spectrum of ways that the level of generality could be formulated from the case:

    (a) Fact as to the Agent of Harm. Dead snails, or any snails, or any noxious physical foreign body, or any noxious foreign element, physical or not, or any noxious element.

    (b) Fact as to Vehicle of Harm. An opaque bottle of ginger beer, or an opaque bottle of beverage, or any bottle of beverage, or any container of commodities for human consumption, or any containers of any chattels for human use, or any chattel whatsoever, or any thing (including land or buildings).

    (c) Fact as to Defendant’s Identity. A manufacturer of goods nationally distributed through dispersed retailers, or any manufacturer, or any person working on the object for reward, or any person working on the object, or anyone dealing with the object.

    (d) Fact as to Potential Danger from Vehicle of Harm. Object likely to become dangerous by negligence, or whether or not so.

    (e) Fact as to Injury to Plaintiff. Physical personal injury, or nervous or physical personal injury, or any injury.

    (f) Fact as to Plaintiff’s Identity. A Scots widow, or a Scots-woman or a woman, or any adult, or any human being, or any legal person.

    (g) Fact as to Plaintiff’s Relation to Vehicle of Harm. Donee of purchaser, from retailer who bought directly from the defendant, or the purchaser from such retailer, or the purchaser from anyone, or any person related to such purchaser or other person, or any person into whose hands the object rightfully comes, or any person into whose hands it comes at all.

    (h) Fact as to Discoverability of Agent of Harm. The noxious element being not discoverable by inspection of any intermediate party, or not so discoverable without destroying the saleability of the commodity, or not so discoverable by any such party who had a duty to inspect, or not so discoverable by any such party who could reasonably be expected by the defendant to inspect, or not discoverable by any such party who could reasonably be expected by the court or a jury to inspect.

    (j) Fact as to Time of Litigation. The facts complained of were litigated in 1982, or any time before 1932, or after 1932, or at any time.

    And finally, Professor HK Lucke writes:

    …if the strongest possible case for application is the case involving the closest possible factual similarity, and if growing dissimilarity weakens the case for application, then a precedent would never be completely binding, for some difference between the precedential facts and the facts of later cases can always be detected.[7]

    HOW TO DETERMINE THE LEVEL OF GENERALITY

    There seems to be no strict rules for what constitutes the precise degree. While it is impossible to determine the exact level of generality, commonsense suggests the prescriptive ratio will inevitably fall in the middle ground. The ratio decidendi becomes useless if it’s restricted to the precise facts of the precedent and also becomes useless if it can be widened infinitely. Therefore, the level of generality will fall in the middle ground somewhere even if we don’t know what that middle ground is. Erwin Griswold, professor and dean of Harvard Law School said:

    …There is in nearly every case an area of choice. How a judge marks out and determines that area largely determines the type of judge he is. In this area, most matters are ones of degree, ones of more or less. They are not black and white.

    If a judge keeps this area too small, he is likely to be a poor judge, for he will be too hidebound by precedent, too much tied to the past, too unaware of the relevance of variations in the situation before him.

    On the other hand, if a judge allows this area to be too broad, he is not likely to be a good judge. He may run some risk of deciding according to his own personal choice rather than according to law as he is given light to understand the law; he may give too little weight to precedent, and make the law unsettled.

    Most judges successfully avoid these extremes. Even then, there is an area of choice. That is what judges are for. Within this area, it may not be possible to give a purely logical demonstration that one result is better than another. A judge has to call on all the resources of his experience and wisdom in coming to a conclusion. Some judges hew rather closely to the line; some are more free-wheeling.[8]

    There are, however, some general indicators which will shape the level of generality:  

    1. ‘The more general, or abstract, the statement of the facts is, the greater the number of subsequent cases which will fall within the principle which is being formulated, and therefore the wider the ratio will be.’[9]

    2. The fewer the facts and the less specific the facts, the broader the prescriptive ratio.[10]

    THE COURT DECIDES THE LEVEL OF GENERALITY

    Ultimately, it is for the future court to decide how narrow or wide the precedent ratio ought to be. This was elaborated by Gleeson CJ, Gummow, Hayne And Heydon JJ in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA, at [61]:

    …if later courts read down the rule of the case, they may treat the proclaimed ratio decidendi as too broad, too narrow or inapplicable. Later courts may treat the material facts of the case as standing for a narrower or different rule from that formulated by the court that decided the case. Consequently, it may take a series of later cases before the rule of a particular case becomes settled. Thus for many years, courts and commentators debated whether the landmark case of Donoghue v Stevenson was confined to manufacturers and consumers and whether the duty formulated in that case was dependent upon the defect being hidden with the lack of any reasonable possibility of intermediate examination. If later courts take the view that the rule of a case was different from its stated ratio decidendi, they may dismiss the stated ratio as a mere dictum or qualify it to accord with the rule of the case as now perceived.

    Also, in Povey v Qantas Airways Limited [2005] HCA, McHugh J said at [76], ‘Later courts commonly treat the material facts of a case as standing for a narrower or broader ratio decidendi than that expounded by the court that decided the case.’ For example, in Smits v Roach [2006] HCA Kirby J found differences between the cases but he widened the level of generality of Ebner v Official Trustee in Bankruptcy [2000] HCA to extend to the present case.

    [112] Strictly, the ratio decidendi of Ebner (and Clenae) concerned an issue that is not present in this appeal. It concerned disqualification of judges for pecuniary interests of their own in a bank which had its own pecuniary interest in the outcome of the litigation (in Ebner) or was actually a party to proceedings before the judge (in Clenae). In the present case, the primary judge had no personal pecuniary interest whatever in the outcome of the proceedings. His brother had a pecuniary interest that was indirect and contingent. In so far as the primary judge had an interest, or apparent interest, its nature was potentially familial, emotional or empathetic. It was not pecuniary. This was, therefore, a case of disqualification by familial association with the brother who, in turn, had an indirect, contingent pecuniary interest in the dispute which the judge, his brother, was deciding.

    [113] Notwithstanding the differences between the issues raised in Ebner and Clenae, and in this case, I accept that, by analogy, what the Court held in Ebner, if extended, would apply to this appeal. Certainly, it could be expected that the approach adopted in Ebner and Clenae would be adapted to the circumstances of this case.

    CLARITY BY TIME

    Overtime, through litigation, the level of generality for the particular ratio will become clearer.[11] To illustrate, a ratio that’s been applied 1,000 times has clearer picture than a ratio that has been applied 1 time. The ratio becomes increasingly cemented by restatements in subsequent cases and commentaries.[12]

    APPLYING THE RATIO: ANALOGICAL REASONING

    Moving from descriptive ratio to the prescriptive ratio works by way of analogy. However, the analogy is never exact, only to related to degree. The descriptive ratio is similar or dissimilar to the future case. The greater the similarity to the future case, the more likely the ratio will be binding. The more dissimilar the ratio, the less likely it will be binding.

    Some legal academics have debated whether precedential reasoning works by way of deductive logic, inductive logic, or analogy. In my opinion, deductive logic was ruled-out by Professor Julius Stone’s article where he illustrated that we cannot deductively move from descriptive ratio to the prescriptive ratio (See the section titled, ‘PRESCRIPTIVE RATIO’). This leaves inductive logic and analogy. Inductive arguments of the kind that the scientific method employs, such as an array of probabilistic methods,[13] are not really applied in legal reasoning. Therefore, in my opinion, precedential reasoning uses more of a rough form of inductive logic, that is, analogy. For judicial support, some judges will explicitly use the word ‘analogy’ in their reasoning when applying the ratio. For example, Kirby J writes in Smits v Roach [2006] HCA:

    [88] Were the circumstances of Ebner, in this respect, analogous to those of the present case, thereby rendering the ratio decidendi of Ebner binding in these proceedings? Was it open to the Court of Appeal, in the light of factual differences between Ebner and the present proceedings, to approach the issue of disqualification in the way that it did?

    [113] Notwithstanding the differences between the issues raised in Ebner and Clenae, and in this case, I accept that, by analogy, what the Court held in Ebner, if extended, would apply to this appeal. Certainly, it could be expected that the approach adopted in Ebner and Clenae would be adapted to the circumstances of this case.

    DISTINGUISHING: ESCAPING BINDING RATIO

    To avoid being bound by the precedent case, a common technique is to distinguish between the precedent case and the present case. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA, McHugh J at [61] said, ‘If later courts take the view that the rule of a case was different from its stated ratio decidendi, they may dismiss the stated ratio as a mere dictum or qualify it to accord with the rule of the case as now perceived.’ According to Neil Duxbury in his book The Nature and Authority of Precedent, a judge may distinguish ‘cases not because they have a law-making agenda but because following the precedent will not produce what they consider to be the right outcome.’[14] However, he further writes that the judge will likely not distinguish on a whim:

    The judge who tries to distinguish cases on the basis of materially irrelevant facts is likely to be easily found out. Lawyers and other judges who have reason to scrutinize his effort will probably have no trouble showing it to be the initiative of someone who is careless or dishonest, and so his reputation might be damaged and his decision appealed. That judges have the power to distinguish does not mean they can flout precedent whenever it suits them.[15]

    And lastly, Mason J writes in H.C. Sleigh Ltd. V. South Australia [1977] HCA, ‘If it is not distinguishable, then this Court has no alternative but to follow its earlier decisions.’

    Example

    In the book Legal Method, 9th Ed (2013), Ian McLeod give us a simple example of distinguishing:

    …in Bridges v Hawkesworth (1851) LJ 21 QB 75, a customer was held to be entitled to keep money which he found on the floor of a shop. By way of contrast, in South Staffordshire Water Company v Sharwood [1896] 1 QB 44, the finder of two gold rings in the mud at the bottom of a reservoice was held to be not entitled to retain them, because the site of the finding had not been open to the public.[16]

    A longer example of distinguishing is found in Channel Seven Adelaide Pty Ltd v Manock [2007] HCA. Here, Kirby J distinguished between the precedent case Pervan V. The North Queensland Newspaper Company Limited and Another [1993] HCA and the present case. In summary, the distinctions Kirby made were the legal issues in question and the factual circumstances. I have emboldened the key points.

    [142] …this Court must find the rule applicable to the present case in its own earlier authority. They nominate Pervan. However, when Pervan is properly analysed, it can be demonstrated that neither the joint reasons in that case, nor any other decision of this or another Australian court, answer the exact problem now presented for our decision.

    [143] Pervan was a case concerned not with the common law of defamation but with the enacted provisions of s 377 of the Criminal Code (Q). Section 377(8) of that Code provided that there was a "lawful excuse for the publication of defamatory matter" if the publication was "made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair". The reference in the first part of the enacted Queensland defence to the requirement that the relevant discussion must be "for the public benefit" has never been part of the common law. In particular, it has never been part of the law of South Australia.

    [144] Necessarily, in deciding Pervan, this Court was therefore concerned not with the common law of Australia but with the meaning of the defence provided in the Queensland Code. The primary holding in Pervan was that s 377(8) of the Code did not import a requirement that the "comment", upon which the defendant relied, had to be based on facts which were true. Nor did s 377(8) require that the publisher hold the opinion expressed in the defamatory publication. Such were the issues in that case.

    [145] The publication sued upon in Pervan was an advertisement in a regional newspaper. The advertisement, in the public notices section of the newspaper, summoned a meeting of ratepayers. The notice repeated statements made originally under privilege in the Queensland Parliament.

    [146] Factual circumstances more different from the present case would be difficult to imagine. Pervan addressed a statute not the common law. It related to a defence of fair comment expressed in distinctive terms in a particular setting. It concerned a publication in a regional newspaper, not a broadcast on a commercial television station. And the publication appeared in a notice in permanent printed form, not a brief broadcast of a promotional advertisement.

    [147] To conclude that, for the defendant to succeed in invoking a defence of fair comment in the circumstances of the present case, it must persuade this Court to overrule a legal principle for which Pervan stands (as the joint reasons suggest) mis-states the requirement of the Australia law of precedent. Although due respect will be paid to judicial observations, as a matter of law, only the ratio decidendi is binding. The ratio decidendi of Pervan is, as I have demonstrated, far removed from the legal question in issue in this appeal. That question is, relevantly, whether, in a publication such as the words and images broadcast by the defendant in the promotion, the facts in respect of which the defence of fair comment was claimed were sufficiently "indicated".

     
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    Rules of the Ratio Decidendi

    After a judgment is written, there is a period of discovery that is needed to figure out what the ratio truly is. This involves deciphering whether it has fallen outside of what constitutes as the ratio and how narrow or wide the ratio is likely to be or ought to be. Therefore, the following is a list of rules for what constitutes the ratio decidendi.

    1.     MUST BE A NECESSARY STEP TO THE CONCLUSION

    To constitute as the ratio, it must be a necessary step to the conclusion. There are many ways to conceptualise this rule. Christopher Enright in his book Legal Technique describes it as, ‘To be the ratio a rule of law formulated in a case must determine the case.’[17] In the book Precedent in English Law, Cross and Harris write, ‘The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.’[18] Or, the High Court judge Anthony Mason describes it in his article as, ‘The ratio is the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision.’[19]

    The case law begins at Bole v Horton (1673) stating, ‘An opinion given in court, if not necessary to the judgment given of record, but that it might have been as well given if no such, or a contrary had been broach’d, is no judicial opinion; but a mere gratis dictum.’[20] In Osborne v Rowlett (1880) Jessel M.R. writes:

    Now, I have often said, and I repeat it, that the only thing in a Judge’s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided: but it is not sufficient that the case should have been decided on a principle if that principle is not itself a right principle, or one not applicable to the case; and it is for a subsequent Judge to say whether or not it is a right principle, and, if not, he may himself lay down the true principle. In that case the prior decision ceases to be a binding authority or guide for any subsequent Judge, for the second Judge who lays down the true principle in effect reverses the decision.[21]

    Kirby J in Garcia v National Australia Bank Limited (1998) 194 CLR 395, said at [56], ‘Judicial remarks of a general character upon tangential questions or issues not necessary to the decision are likewise discarded, however persuasive the reasoning may appear.’ Lastly, in Tabet v Gett [2010] HCA, Heydon J expressed the dangers of stating opinions that are not necessary for the outcome of the case. He argues that all players in the case - both parties and the judges - should feel as if their arguments will impact the outcome because the subsequent ‘consciousness … sharpens’ the quality of the law:

    [97] The question of law which the plaintiff wishes to agitate was argued by the parties fully and forcefully because on one factual basis it would have been a live and decisive issue. But now the question has ceased to be live and decisive. The question has become hypothetical in the sense that the assumption it rests on has turned out to be incorrect. The question is controversial among lawyers and in other cases, but as between the plaintiff and the defendant in this case the controversy has turned out to lack concreteness. For them it has become moot. There is no answer to the question posed which will produce any consequences for the parties. The question has become purely abstract and academic. The only significance of an answer would lie in what future courts would make of it. They are likely to treat it not as a decision, but only as a dictum; not as the resolution of a controversy, but only as advice; not as an event, but only as a piece of news.

    [98] The consciousness of parties and their legal representatives that the outcome of a debate about the correctness of contested propositions of law is decisively important to the interests of those parties often greatly assists the sharpness and quality of that debate. Doubtless it did so here. But the efficacy of a debate does not depend only on whether the participants in the debate have that consciousness. The efficacy of its resolution depends on the court sharing that consciousness and being assisted by that consciousness. Here a stage has been reached in a journey along the path to decision which has caused that consciousness to cease to exist because an issue has ceased to be decisively important. No assistance can be gained from a consciousness that has ceased to exist. In this field, for me, at least, to embark on difficult and doubtful inquiries in an attempt to answer the question without the assistance to be gained from that consciousness is a potentially very dangerous course. This is a case in which, since it is not necessary to do so, it is desirable not to.

    [99] Accordingly, the appeal must be dismissed.

    Example

    To illustrate, the following hypothetical contains a statement that is not necessary to the judgment. The facts of the case are as follows:

    At 12:30 pm on Monday 13 April, Jack, a Fletcher by trade, was walking down Holly Lane. He stopped when he came to the field which Jill, a cooper, held as a tenant of Lord Sheffield. Jack Decided that he wanted to take a short cut to get to the market. Therefore he walked across Jill’s field. Jill did not say to Jack that could walk across her field.[22]

    Assume the Jack’s actions were held as trespass and assume the judge further stated the following: ‘Ms Jones Raised in the argument the consequences if a defendant tunnels under land possessed by the plaintiff. This also, we believe, would constitute trespass.’[23] However, the facts of the case did not involve tunneling. Therefore, the statement was irrelevant to the case and does not constitute as the ratio.

    For a longer example of this rule, scroll up to the section entitled ‘DESCRIPTIVE RATIO DECIDENDI.’

    2.     MUST BE DIRECTLY RELATED TO THE ISSUE

    To constitute as the ratio, it must to be directly related to the issue. In Garcia v National Australia Bank Limited (1998) HCA, Kirby J writes, ‘It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from… a matter in issue in the proceedings.[24] Next, McHugh J said forcefully and plainly in Coleman v Power (2004) HCA, at [79]:

    The essence of judicial power is the determination of disputes between parties. If parties do not wish to dispute a particular issue, that is their business. This Court has no business in determining issues upon which the parties agree. It is no answer to that proposition to say that this Court has a duty to lay down the law for Australia. Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties. But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues.

    3.     MUST COME FROM DISPUTES OF LAW, NOT DISPUTES OF FACT

    The ratio must be derived from disputes of law, not disputes of fact. Rations will not come from cases where the parties only disagree on the facts.[25]

    4.     MUST TO BE ARGUED IN COURT

    To constitute as the ratio, it must first be argued in court. A point of law that will become precedent should have the opportunity to be argued by both parties in court, or the law will go without the benefit of counter arguments and fine-tuning. This rule was first proposed in the old case R v Warner (1661) 1 Keb 66 at 67: "[T]he presidents … sub silentio without argument, are of no moment". Many years later, Gleeson CJ, Gummow And Heydon JJ re-expressed this point in CSR Limited v Eddy [2005] HCA, at [13]:

    It is of course commonplace for the courts to apply received principles without argument: the doctrine of stare decisis in one of its essential functions avoids constant re-litigation of legal questions. But where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument.

    Mansfield J later affirmed this in Taylor v Rudaks [2007] FCA at [39] by writing:

    Although his Honour’s remarks suggest that he held the view that a claim under s 588M(2) of the Corporations Act is not a claim provable in the bankruptcy of a director, that view was not expressed after the benefit of argument on the matter. It does not form part of the ratio decidendi of the decision. It is not a view which his Honour reached after the opportunity of considering the decisions to which I have referred or the analysis of the precise wording of s 588M. I accordingly do not think that the decision obliges me to reach a conclusion different from that I have reached; nor that I should do so.

    5.     THE FACTS OF THE PRECEDENT CASE SHAPE THE LEVEL OF GENERALITY 

    The facts of the precedent case shape how narrow or wide the ratio should be applied to future cases. I expanded on this point above in section titled, ‘The Descriptive-Prescriptive Distinction.’

    While it’s impossible to determine the precise level of generality, some general indicators are:

    1. ‘The more general, or abstract, the statement of the facts is, the greater the number of subsequent cases which will fall within the principle which is being formulated, and therefore the wider the ratio will be.[26]

    2. The less facts and the less specific the facts, the broader the application of the ratio.[27]

    6.     THE COURT DECIDES THE LEVEL OF GENERALITY

    Ultimately, it is for the future court to decide how narrow or wide the precedent ratio ought to be. This was elaborated by Gleeson CJ, Gummow, Hayne And Heydon JJ in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA, at [61]:

    …if later courts read down the rule of the case, they may treat the proclaimed ratio decidendi as too broad, too narrow or inapplicable. Later courts may treat the material facts of the case as standing for a narrower or different rule from that formulated by the court that decided the case. Consequently, it may take a series of later cases before the rule of a particular case becomes settled. Thus for many years, courts and commentators debated whether the landmark case of Donoghue v Stevenson was confined to manufacturers and consumers and whether the duty formulated in that case was dependent upon the defect being hidden with the lack of any reasonable possibility of intermediate examination. If later courts take the view that the rule of a case was different from its stated ratio decidendi, they may dismiss the stated ratio as a mere dictum or qualify it to accord with the rule of the case as now perceived.

    Also, in Povey v Qantas Airways Limited [2005] HCA, McHugh J said at [76], ‘Later courts commonly treat the material facts of a case as standing for a narrower or broader ratio decidendi than that expounded by the court that decided the case.’ For example, in Smits v Roach [2006] HCA Kirby J found differences between the cases but he widened the level of generality of Ebner v Official Trustee in Bankruptcy [2000] HCA to extend to the present case.

    [112] Strictly, the ratio decidendi of Ebner (and Clenae) concerned an issue that is not present in this appeal. It concerned disqualification of judges for pecuniary interests of their own in a bank which had its own pecuniary interest in the outcome of the litigation (in Ebner) or was actually a party to proceedings before the judge (in Clenae). In the present case, the primary judge had no personal pecuniary interest whatever in the outcome of the proceedings. His brother had a pecuniary interest that was indirect and contingent. In so far as the primary judge had an interest, or apparent interest, its nature was potentially familial, emotional or empathetic. It was not pecuniary. This was, therefore, a case of disqualification by familial association with the brother who, in turn, had an indirect, contingent pecuniary interest in the dispute which the judge, his brother, was deciding.

    [113] Notwithstanding the differences between the issues raised in Ebner and Clenae, and in this case, I accept that, by analogy, what the Court held in Ebner, if extended, would apply to this appeal. Certainly, it could be expected that the approach adopted in Ebner[83] and Clenae would be adapted to the circumstances of this case.

    7.     WHEN A PRECEDENT HAS MULTIPLE REASONS, ALL REASONS ARE BINDING

    In Commissioners of Taxation (NSW) v Palmer [1907] AC 179 at 184, Lord Macnaghten for the Privy Council said, ‘It is impossible to treat a proposition which a court declares to be a distinct and sufficient ground for its decision as a mere dictum, simply because there is another ground stated upon which, standing alone, the case might have been determined.’ Next, in Cheater v Cater [1918] 1 KB 247, at [252], ‘If a judge states two grounds for his judgment and bases his decision upon both, neither of those grounds is a dictum. In London Jewellers Ltd v Attenborough [1934] 2 KB 206, at 222, Greer LJ said:

    In that case two reasons were given by all the members of the Court of Appeal for their decision and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first; we must take both as forming the ground of the judgment.

    Later, in Jacobs v London County Council [1950] AC 361 at 369 Lord Simonds said, ‘There is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision because he has given another reason also.’ And finally, in McBride v Monzie Pty Ltd [2007] FCA 1947, at [6] ‘If a judge gives two or more alternative reasons for reaching his (or her) decision each reason is part of the ratio.’ While this rule comes from UK, these cases have been affirmed in many Australian cases, such as McBride v Monzie Pty Ltd [2007] FCA.

    8.     THE RATIO CAN COME IN MULTIPLE FORMS

    The ratio can come in three forms:

    1. A common law rule; or

    2. Interpretation of statute, or

    3. Interpretation of a common law rule.[28]

    9.     WHERE THERE ARE MULTIPLE JUDGES: a) THE MAJORITY OF JUDGES MUST AGREE TO BE BINDING

    To constitute as the ratio, the majority of judges must agree where there are multiple judges.[29] By implication, dissenting judgments are not binding. ‘Dissenting judgments’ are judgments by the minority of judges, such as 2 out of 6 judges.

    The first case comes from Bone v Commissioner of Stamp Duties [1972] NSWLR at 654. Jacobs P writes in reference to a statement made by Owen J in a High Court Decision:

    That decision is naturally entitled to the greatest respect. It is of its nature a most persuasive precedent, but it is not a precedent which is binding upon this Court. It was not a decision given by Owen J when sitting as a member of a court in the framework of the appellate structure of which this Court is part.

    In the same case, Hope JA states:

    A decision of a justice of the High Court sitting at first instance is of course of the greatest persuasive authority for this Court, but this Court is not bound to follow it, and since the decision is challenged, it becomes necessary to decide whether the construction placed upon the agreement by Owen J was the correct one.[30]

    McLelland J affirms this in Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] NSWLR: 

    Nor am I bound by a decision of the High Court constituted by a single justice (cf Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651, at 654, 664), or by a decision of the House of Lords, although in either case such a decision is also entitled to great weight and respect.[31] 

    In Federation Insurance Limited V. Wasson and Others [1987] HCA Mason C.J., Wilson, Dawson And Toohey JJ write at [17]:

    It is not strictly necessary for this Court now to resolve the controversy as to what Deaves actually did decide. If it matters, we agree with the assessment made by McHugh J.A. Certainly, it would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment … That is not to say, however, that a dissenting judgment may not deserve respectful consideration. A dissenting judge will often see his or her judgment as an appeal to the brooding spirit of the law, waiting for judges in future cases to discover its wisdom.

    Kirby J said in Garcia v National Australia Bank Limited (S18/1997) [1998] HCA at [56]:

     …the rules governing the ascertainment of binding precedent observe principles which are at once majoritarian and precise. Even so great a Justice of this Court as Dixon J cannot speak for the Court unless his reasoning attracts the support, express or implied, of a majority of the participating Justices (disregarding for this purpose any who did not agree in the order of the Court disposing of the proceedings on the point in question).

    In New South Wales v Commonwealth of Australia [2006] HCA at [487] Kirby J also said:

    First, in Pacific Coal, Gaudron J (along with McHugh J and myself) was in dissent. Her reasoning therefore forms no part of the ratio decidendi of that case.

    Again, Kirby J writes in Vasiljkovic v Commonwealth of Australia [2006] HCA, at [188]:

    Detention and criminal punishment: The Commonwealth argued that the broad statements in Chu Kheng Lim v Minister for Immigration, about the exclusive judicial role in imposing involuntary detention in the context of criminal punishment, were not endorsed by a majority of the Court in that case. They were not, therefore, part of the ratio decidendi of that case.

    And Lastly, in Novartis AG v Hospira Pty Limited [2012] FCA, Yates J said at [64]:

    Whilst a decision of a single justice of the High Court is deserving of close and respectful consideration, I am not bound by the observations quoted above. This is because, first, they are obiter dicta and, secondly, the decision in F Hoffman-La Roche is not binding on me as a matter of precedent in any event: Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 at 654 and 664.

    b)   WHEN JUDGES HAVE DIFFERENT REASONS, FIND ESSENTIAL AREAS OF AGREEMENT

    When judges have different reasons for their decision, find essential areas of agreement. Justice Kirby gives us this advice in his speech, Precedent – Report on Australia:

    Determining the ratio decidendi of a judicial decision becomes a complex task when multiple concurring reasons are published by several judges in a single case. In such a case, the ratio must be drawn from the essential areas of agreement found within the reasons of the judges in the majority.”[32]

    Frederick Schauer in breaks it down in his book, Thinking Like a Lawyer: A New Introduction to Legal Reasoning:

    So if judge A decides for the plaintiff for reasons x, y, and z, and judge B decides for the plaintiff for reasons p, q, and x, and if judge C decides for the defendant, then the ratio decidendi is x, the reason (and the only reason) shared by a majority of judges.[33]

    c)   CANNOT DISCARD A CASE WHERE THE MAJORITY OF JUDGES AGREE ON THE ORDER BUT DO NOT AGREE ON THE REASONS

    In Garcia v National Australia Bank Limited (1998) 194 CLR 395, Kirby J wrote at [57]:

    As all of the Justices concurred in the order of the Court allowing the appeal in that case, the reasoning of none could be discarded. As none of the Justices expressly concurred in the reasoning of another, the analysis depends upon a comparison of the reasons which each gave.[34]

    d)  CANNOT CONSTRUCT A RATIO DECIDENDI BY THE AGGREGATION OF VARIOUS ELEMENTS OF SEPARATE REASONS

    In Great Western Railway Company v Owners of SS Mostyn [1928] AC 57 at 73, Viscount Dunedin said: ‘With great hesitation they have added the opinion of Lord Hatherley to that of Lord Cairns and then, with still greater difficulty, that of Lord Blackburn, and so have secured what they think was a majority in favour of Lord Cairns’s very clear view.’ Viscount didn’t think that this method ought to be binding.

    Barwick C.J. affirmed this in Victoria V. The Commonwealth (1971) HCA, at [39], ‘It is not permissible to construct such a ratio by the aggregation of various elements from separate reasons given by their Honours.’

    Lastly, In Perara-Cathcart v The Queen [2017] HCA, the majority judgment at [134] states:

    Authority makes plain that it is not permissible to construct a ratio decidendi by the aggregation of various elements of separate reasons, still less to extract an element from a dissenting judgment and combine it with an element from a majority judgment in an attempt to create a majority in favour of that element. Parity of reasoning dictates that, where a majority of the Court of Criminal Appeal has decided that there has been a miscarriage of justice, it is not permissible to construct a further decision by a majority of that Court that there has been "no substantial miscarriage of justice" by aggregating the decision of one member of the Court to that effect with the decision of another member of the Court who was not persuaded, at the point of the anterior question, that there had been a miscarriage of justice. In such circumstances, a majority of the Court has decided that there has been a miscarriage of justice, and it follows that the appeal to that Court must be allowed.[35]

    10.   A PRECEDENT CAN BE BINDING WITHOUT A RATIO

    Where the material facts are the same, judgments may still be binding on lower courts even if there was no ratio, providing that the facts are the similar. The book Laying Down the Law phrased this point well: ‘Where the material facts are the same, the lower court will still be required to reach the same outcome, applying the same rules of law as the superior court, even if the law had not been in dispute in that particular superior court decision.[36]

    In Re Tyler; Ex Parte Foley [1994] HCA, McHugh J said:

    [4] The divergent reasoning of the majority judges in Re Tracey and Re Nolan means that neither of those cases has a ratio decidendi. But that does not mean that the doctrine of stare decisis has no relevance or that the decisions in those cases have no authority as precedents. Because it is impossible to extract a ratio decidendi from either of the two cases, each decision is authority only for what it decided ((59) Dickenson's Arcade Pty. Ltd. v. Tasmania (1974) 130 CLR 177 at 188; Philip Morris Ltd. v. Commissioner of Business Franchises (Vict.) (1989) 167 CLR 399 at 496.). But what is meant by saying that a case, whose ratio decidendi cannot be discerned, is authority for what it decided? It cannot mean that a court bound by that decision is bound only by the precise facts of the case. Stare decisis and res judicata are different concepts.

    [5] In my opinion, the true rule is that a court, bound by a previous decision whose ratio decidendi is not discernible, is bound to apply that decision when the circumstances of the instant case "are not reasonably distinguishable from those which gave rise to the decision" ((60) Scruttons Ltd. v. Midland Silicones Ltd. (1962) AC 446 at 479 per Lord Reid.).

    However, Harris & Cross argue that ‘the authority of a decision for which no reasons are given is very weak, because it is so hard to tell which facts were regarded as material and which were thought to be immaterial.’[37]

    11.   WHEN THE RATIO CANNOT BE DETERMINED, A COURT MAY NOT BE BOUND

    When the ratio cannot be determined, a court may not be bound. In Great Western Railway Co v Owners of SS Mostyn [1928] AC 57, at [73]:

    When any tribunal is bound by the judgment of another court, either superior or co-ordinate, it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear … what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding. But if it is not clear, then I do not think it is part of the tribunal’s duty to spell out with great difficulty a ratio decidendi in order to be bound by it.

    At first instance, this seems as if it conflicts with the last point (10). However, the court may not be bound by the ratio but may still be bound by the precedent.

    12.   NOT ALL CASES MUST HAVE A RATIO

    Not all cases have a ratio decidendi. In Perara-Cathcart v The Queen [2017] HCA, Gageler J said:

    [74] The individual members of a multi-member court will sometimes disagree. Sometimes disagreements will be resolved by dialogue, one member ending up convinced by another to take a different view; sometimes not. Where disagreements are not resolved, the law supplies a decision-making rule which allows the court to produce the order that is necessary for its institutional duty to be fulfilled.

    [75] The decision-making rule applied to produce the order of a multi-member court in a case in which there is disagreement between its members is different in timing, concept and purpose from the principle applied in an attempt to extract a ratio decidendi from the reasons for decision of the members of that court in that case. The decision-making rule is applied at the time of decision. The rule is directed to ensuring an outcome in the case. When triggered by disagreement, the rule applies to produce a result. The principle is applied subsequently and in retrospect. The principle is directed to the ideal of ensuring that cases are decided consistently through time. The principle cannot be expected always to achieve that ideal. Every case must have an outcome, but not every case need have a ratio decidendi.

    [76] When members of a Full Court of the High Court are "divided in opinion as to the decision to be given on any question", the decision-making rule is supplied by s 23(2) of the Judiciary Act 1903 (Cth). If the case is in the High Court's appellate jurisdiction and there is an equal division of opinion, the decision appealed from is left to stand. If there is an equal division in the High Court's original jurisdiction, the opinion of the Chief Justice or Senior Justice prevails. In each of those circumstances of equally divided opinion, the applicable decision-making rule produces a resolution of the case at hand. In neither of those circumstances does application of the rule produce a decision which necessarily constitutes a binding precedent. When the division in opinion in the High Court is not equal, the decision-making rule is that "the question shall be decided according to the decision of the majority". That decision-making rule produces a resolution of the case at hand notwithstanding that aggregation of the reasons for decision of members of the majority can sometimes fail to yield a ratio decidendi.

    13.   UNSTATED ASSUMPTIONS DO NOT CONSTITUTE THE RATIO

    Unstated assumptions do not constitute the ratio. In Muldoon v Church of England Children's Homes Burwood [2011] NSWCA Campbell JA at [39] writes :

    Reasons for judgment are not authority for a matter that has been assumed, rather than actually decided, in the course of those reasons for judgment: Baker v The Queen [1975] AC 774 at 788; Archer v Howell (1992) 7 WAR 33 at 46; Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 at [32]-[33]; R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 at [20]-[25], [33]-[39], 962-963, 965-966; Markisic v Commonwealth of Australia [2007] NSWCA 92; 69 NSWLR 737 at [56].

     
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    Rules of Obiter Dicta

    Obiter dictum is typically seen as statements that don’t constitute the ratio decidendi, that is, obiter is everything else but the ratio. However, not all sentences in a judgment fall under either ratio decidendi or obiter dictum. The book, Laying Down the Law writes:

    Frequently during the course of a judgment a judge will restate and discuss proposition of law from previous cases. Such recitations may provide a useful foundation for the judge’s reasoning but they will neither be ratio no obiter unless they receive the endorsement of the judge.[38]

    Thus, obiter dicta are statements made during the course of a judgment that do not fall under the other categories, such as the ratio, the orders,[39] the headnote, the restatements of law, etc.

    1.     GENERALLY, OBITER DICTUM IS NOT BINDING

    Generally, obiter dictum is not binding. John Chipman Grey in his book, The Nature and Sources of The Law writes, ‘It must be observed that at the Common Law not every opinion expressed by a judge forms a Judicial Precedent.[40] However, the exception is ‘seriously considered dicta’ from the High Court (See the section titled, ‘Binding Dicta: The High Court Exception’). Therefore, all obiter that is not from the high court, is not binding.

    The case law starts at Bole v Horton (1673). Vaughan CJ at 382 said, ‘An opinion given in a court, if not necessary to the judgment given of record, but that it might have been as well given if no such, or contrary had been broach’d, is no judicial opinion: but a mere gratis dictum.’[41] A few hundred years later, Jessel MR writes in Osborne v Rowlett (1880) Ch at 785:

    Now, I have often said, and I repeat it, that the only thing in a Judge’s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided: but it is not sufficient that the case should have been decided on a principle if that principle is not itself a right principle, or one not applicable to the case; and it is for a subsequent Judge to say whether or not it is a right principle, and, if not, he may himself lay down the true principle. In that case the prior decision ceases to be a binding authority or guide for any subsequent Judge, for the second Judge who lays down the true principle in effect reverses the decision.

    2.     OBITER IS PERSUASIVE

    Over and over again, you will hear the mantra that obiter dictum is “persuasive.” When someone mentions the word “obiter”, inevitably, you will hear someone robotically respond that it’s “persuasive.” So, if obiter is not binding, what does persuasive actually mean. In my view, it means that the statements made in obiter should be consciously considered, rather than immediately ignored. In Ex parte Bell Cox (1887) QBD: ­

    I do not think that a judge would wish any statement which he may have made in the course of a case, merely obiter and casually, to be treated as necessarily being an authority on the subject in question; but when a judge has thought it necessary for the purpose of the case to make a deliberate examination of the practice of his Court, and to state such practice, I do not think the authority of such statement can be got rid of merely by arguing that it was not really necessary for the actual decision of the case. I think that such a statement if cited as an authority is entitled to great weight, though of course not bind on is as a decision.

    Also, in Eslea Holdings Ltd v Butts (1986) NSWLR, at 361 Samuels JA commented on the need ‘to pay the very greatest respect and attention’ to High Court dicta. And, in Forgeard v Shanahan (1994) NSWLR at 226, Meagher JA stated that a lower court should not ‘lightly decline’ to follow ‘considered dicta of a very distinguished High Court.’ Note the High Court’s binding dicta exception (see ‘Binding Dicta: The High Court Exception.’)

    3.     OBITER HAS DIFFERENT DEGREES OF WEIGHT

    Obita dicta have different degrees of weight. On the light end, there are simple passing remarks and on the heavy end, there are statements that have been fully argued, as if it were the ratio.[42] In Brunner v Greenslade [1971] Ch, Megarry J states:

    A mere passing remark or a statement or assumption on a matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter.

    Also, some statements made in dicta are so influential that it in effect becomes ratio. In the book Precedent in English Law, 4th Ed, Cross and Harris write: ‘Dicta of the highest degree of persuasiveness may often, for all practical purposes, be indistinguishable from pronouncements which must be treated as ratio decidendi.’[43]

     
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    Binding Dicta: The High Court Exception

    SERIOUSLY CONSIDERED DICTA

    Historically, obiter dictum has never been binding. However, In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA, the High Court unanimously stated that lower courts are bound by the High Court’s ‘long-established authority and seriously considered dicta of the majority of this court.’ They write:

    [134] It is true that those statements were dicta in the sense that the case was decided on the second limb of Barnes v Addy. But, contrary to the Court of Appeal's perception, the statements did not bear only "indirectly" on the matter: they were seriously considered. And, also contrary to the Court of Appeal's perception… it was shared by the entire majority… [That] is not a step which an intermediate court of appeal should take in the face of long-established authority and seriously considered dicta of a majority of this Court.

    [158] The changes by the Court of Appeal with respect to the first limb, then, were arrived at without notice to the parties, were unsupported by authority and flew in the face of seriously considered dicta uttered by a majority of this Court. They must be rejected.

    I express my gratitude to Professor Matthew Harding and Professor Ian Malkin for writing a brilliantly researched journal article on the issue of ‘seriously considered dicta’ entitled, The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts. The authors analysed a large amount of cases on the effect of dicta by the High Court on the lower courts. Prior to Farah, they found that many judges from lower-courts did not see themselves as having a duty to follow dicta from the High Court: ‘[T]he cases in which lower courts appear to have considered themselves under a duty of obedience to High Court dicta are not numerous. In our view, these cases [that did,] were ‘outliers’ in the pre-Farah world.’[44]

    Post Farah, most courts consider themselves under a duty of follow seriously considered dicta and the courts that don’t, are now the outliers.[45] For example, in Zotti v Australian Associated Motor Insurers Ltd (2009) NSWCA, Spigelman CJ wrote, ‘this court is obliged to follow...the clearly expressed dicta of the High Court even if not part of the ratio decidendi.’ In Lassanah v State of New South Wales [2009] NSWDC at [25], Gibson DCJ said ‘[e]ven if, rather than forming a part of the ratio decidendi, this [passage] amounts to “considered obiter dicta”, I am still bound by this decision for the reasons explained by the High Court in Farah.’ Lastly, In Net Parts International Pty Ltd v Kenoss Pty Ltd [2008] NSWCA at [28], MacFarlan JA:

    Whilst...the statement of principle in Lion White is strictly an obiter dictum, the statement is one which this Court is in my view required to apply unless and until the High Court opines further on the question, the statement of principle having stood without contradiction for some 90 years and the statement being a well-considered one.

    DISTINCTION BETWEEN ALL DICTA VS SERIOUSLY CONSIDERED DICTA

    There is a distinction between all dicta and seriously considered dicta. For example, Perram J in Australian Capital Territory v Queanbeyan City Council [2010] FCAFC felt that he was not bound by the High Court’s dicta:

    The principle thus elucidated is neither long-established by authority nor the result, I think, of seriously considered dicta of a majority of the High Court. Thus this Court is not bound to follow it: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

    Also, Mercedes Holdings Pty Ltd v Waters (No 3) [2011] FCA, Perram J decided that the High Court’s statement was ‘not a considered dictum otherwise binding on [the court]’.

    CURRENT AMBIGUITIES

    Harding and Malkin found a few ambiguities with Farah:

    1. What constitutes as ‘long established authority?' For example, 'In Pape v Federal Commissioner of Taxation, Heydon J (in his dissenting judgment) pointed out that certain dicta were ‘seriously considered dicta, but they could not be described as conforming with long-established authority’.’[46]
    2. What constitutes as ‘seriously considered?' For example, ‘in the Victorian Court of Appeal in 2010, Doughty v Martino Developments Pty Ltd, Nettle JA said of a statement that was not the product of a consideration of relevant authorities or substantial argument that it ‘does not rise to the level of considered dicta in the sense identified in Farah.’’[47]
     
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    EMERGENCY: I Need the Ratio Fast!

    If you don’t have time to read and understand the actual case, here are a list of shortcuts. When the source refers to the ratio, they will say something like, ‘It was held…’, ‘It was found...’, ‘The majority stated...’, and so on. (Of course, these are just suggestions and can subsequently result in you misidentifying the ratio. So, you’re at your own risk.)

    1. Journal articles on the particular precedent. Try https://scholar.google.com or http://www.austlii.edu.au/au/special/journals/;

    2. Textbooks;

    3. Law blogs, such as www.modaq.com;

    4. Good ol’ Professor Google. There are many law firms out there summarising cases because they’ve got nothing else to write about… (joking);

    5. Case summary books. Eg. ‘LexisNexis Case Summaries: Contracts - 7th edition’;

    6. If you’re in Australia, go to jade.io, type in the case, and scroll down ‘till you find a lot of citations. For example, In the case Rogers v Whitaker (1992), paragraph 4 has been cited 106 times. This is an indicator that it’s the ratio, if not, at least something important to consider. See the screenshot below:
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    Bibliography

    This bibliography is in compliance with the Australian Guide to Legal Citation, 3rd Edition. However, for in-text referencing, I have used medium neutral citations. Reason, medium neutral citations displays the specific court which means the reader does not have to do additional research. For the end notes, I have complied with the AGLC but I have excluded ‘above n’ and ‘Ibid’. In my opinion, it’s a waste of time to have to scroll up to find the original source.

    BOOKS

    1. Catriona Cook, Robin Creyke, Robert Geddes, David Hamer, Tristan Taylor, Laying Down the Law (LexisNexis Australia, 9th Ed, 2015)
       
    2. Cross, Rupert and J. W. Harris, Precedent in English Law (Oxford University Press, 4th Ed, 1991)
       
    3. Duxbury, Neil, The Nature and Authority of Precedent (Cambridge University Press, 2008)
       
    4. Enright, Christopher, Legal Technique (The Federation Press, 2002)
       
    5. Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard University Press, 2009)
       
    6. Grey, John Chipman, The Nature and Sources of The Law, (The Macmillan Company, 2nd Ed, 1921)
       
    7. LexisNexis, LexisNexis Concise Australian Legal Dictionary, (LexisNexis Butterworths, 5th Ed, 2015)
       
    8. McLeod, Ian, Palgrave Macmillan Law Masters Legal Method (Palgrave, 9th Ed, 2013)
       
    9. Trachtman, Joel P., The Tools of Argument: How the Best Lawyers Think, Argue, and Win (CreateSpace Independent Publishing Platform, 2013)

    JOURNAL ARTICLES

    1. Goodhart, A. L., ‘The Ratio Decidendi of a Case’ (1959) 22 The Modern Law Review
       
    2. Goodhart, Arthur L., ‘Determining the Ratio Decidendi of a Case’ (1930) 40 The Yale Law Journal
       
    3. Harding, Matthew and Ian Malkin, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review
       
    4. Hawthorne, James and Edward N. Zalta (ed.), ‘Inductive Logic’ (Spring 2017 Edition) The Stanford Encyclopedia of Philosophy
       
    5. Kirby, Michael, ‘Ex Tempore Judgments – Reasons on the Run’ (1995) 25 Western Australian Law Review
       
    6. Kirby, The Hon Justice Michael, ‘Precedent – Report on Australia’ (Speech delivered at the International Academy of Comparative Law Conference, Utrecht, The Netherlands, 17 July 2006)
       
    7. Lücke, H.K., ‘Ratio Decidendi: Adjudicative Rationale and Source of Law’ (1989) 1 Bond Law Review
       
    8. Mason, Sir Anthony, 'The Use and Abuse of Precedent' (1988) 4 Australian Bar Review
       
    9. Montrose, J. L., ‘Ratio Decidendi and the House of Lords’ (1957) 20 The Modern Law Review
       
    10. Montrose, J. L., ‘The Ratio Decidendi of a Case’ (1957) 20 The Modern Law Review
       
    11. Simpson, A. W. B., ‘The Ratio Decidendi of a Case’ (1957) 20 The Modern Law Review
       
    12. Stone, Julius, ‘The Ratio of the Ratio Decidendi’ (1959) 22 The Modern Law Review

    CASES

    1. Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208
       
    2. Australian Capital Territory v Queanbeyan City Council [2010] 188 FCR 541
       
    3. Bole v Horton (1673) Vaugh 360; 124 ER 1113
       
    4. Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651
       
    5. Brunner v Greenslade [1971] Ch 993
       
    6. Channel Seven Adelaide Pty Ltd v Manock [2007] 232 CLR 245
       
    7. Cheater v Cater [1918] 1 KB 247
       
    8. Coleman v Power [2004] 232 CLR 245
       
    9. D'Orta-Ekenaike v Victoria Legal Aid [2005] 223 CLR 1
       
    10. Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175
       
    11. Ex parte Bell Cox (1887) QBD
       
    12. Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] 230 CLR 89
       
    13. Federation Insurance Limited V. Wasson and Others [1987] 163 CLR 303
       
    14. Forgeard v Shanahan (1994) 35 NSWLR 206
       
    15. Garcia v National Australia Bank Limited [1998] 194 CLR 395
       
    16. Great Western Railway Co v Owners of SS Mostyn [1928] AC 57
       
    17. H.C. Sleigh Ltd. V. South Australia [1977] 136 CLR 475
       
    18. Jacobs v London County Council [1950] AC 361
       
    19. Lassanah v State of New South Wales [2009] NSWDC 73
       
    20. London Jewellers Ltd v Attenborough [1934] 2 KB 206
       
    21. McBride v Monzie Pty Ltd [2007] 164 FCR 559
       
    22. Mercedes Holdings Pty Ltd v Waters (No 3) [2011] FCA 236
       
    23. Muldoon v Church of England Children's Homes Burwood [2011] 80 NSWLR 282
       
    24. New South Wales v Commonwealth of Australia [2006] 229 CLR 1
       
    25. Nowicka v Superannuation Complaints Tribunal [2008] FCA 939
       
    26. Novartis AG v Hospira Pty Limited [2012] FCA 1055
       
    27. Osborne v Rowlett (1880) 13 Ch D 774
       
    28. Pape v Commissioner of Taxation [2009] 238 CLR 1
       
    29. Perara-Cathcart v The Queen [2017] HCA 9
       
    30. Povey v Qantas Airways Limited [2005] 223 CLR 189
       
    31. Quinn v Leathem [1901] AC 495
       
    32. Re Tyler; Ex Parte Foley [1994] 181 CLR 18
       
    33. Smits v Roach [2006] 227 CLR 423
       
    34. Tabet v Gett [2010] 240 CLR 537
       
    35. Vasiljkovic v Commonwealth of Australia [2006] 227 CLR 614
       
    36. Victoria v. The Commonwealth (1971) 122 CLR 353
       
    37. Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] 216 CLR 515
       
    38. Zotti v Australian Associated Motor Insurers Ltd (2009) NSWCA 323

    MISC

    James Lee, Precedent on High: The High Court of Australia and 'Seriously Considered Dicta’ (21 August 2013) Melbourne Law School Opinions on High, <https://blogs.unimelb.edu.au/opinionsonhigh/2013/08/21/lee-precedent-on-high/>

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    Endnotes

    [1] Rupert Cross and J. W. Harris, Precedent in English Law (Oxford University Press, 4th Ed, 1991) 42.

    [2] Rupert Cross and J. W. Harris, Precedent in English Law (Oxford University Press, 4th Ed, 1991) 49-52.

    [3] Julius Stone, ‘The Ratio of the Ratio Decidendi’ (1959) 22 The Modern Law Review.

    [4] Ian McLeod, Palgrave Macmillan Law Masters Legal Method (Palgrave, 9th Ed, 2013).

    [5] Catriona Cook, Robin Creyke, Robert Geddes, David Hamer, Tristan Taylor, Laying Down the Law (LexisNexis Australia, 9th Ed, 2015) 141.

    [6] Julius Stone, ‘The Ratio of the Ratio Decidendi’ (1959) 22 The Modern Law Review 603-4.

    [7] H.K. Lücke, ‘Ratio Decidendi: Adjudicative Rationale and Source of Law’ (1989) 1 Bond Law Review 46.

    [8] I could not trace the original source. However, the extract came from: Julius Stone, ‘The Ratio of the Ratio Decidendi’ (1959) 22 The Modern Law Review 618-9.

    [9] Ian McLeod, Palgrave Macmillan Law Masters Legal Method (Palgrave, 9th Ed, 2013).

    [10] H.K. Lücke, ‘Ratio Decidendi: Adjudicative Rationale and Source of Law’ (1989) 1 Bond Law Review 46.

    [11] Joel P. Trachtman, The Tools of Argument: How the Best Lawyers Think, Argue, and Win (CreateSpace Independent Publishing Platform, 2013) 110.

    [12] Joel P. Trachtman, The Tools of Argument: How the Best Lawyers Think, Argue, and Win (CreateSpace Independent Publishing Platform, 2013) 110.

    [13] James Hawthorne and Edward N. Zalta (ed.), ‘Inductive Logic’ (Spring 2017 Edition) The Stanford Encyclopedia of Philosophy.

    [14] Neil Duxbury, The Nature and Authority of Precedent (Cambridge University Press, 2008) 114.

    [15] Neil Duxbury, The Nature and Authority of Precedent (Cambridge University Press, 2008) 115.

    [16] Ian McLeod, Palgrave Macmillan Law Masters Legal Method (Palgrave, 9th Ed, 2013).

    [17] Christopher Enright, Legal Technique (The Federation Press, 2002) 247.

    [18] Rupert Cross and J. W. Harris, Precedent in English Law (Oxford University Press, 4th Ed, 1991) 72.

    [19] Sir Anthony Mason, 'The Use and Abuse of Precedent' (1988) 4 Australian Bar Review 103.

    [20] Bole v Horton (1673) Vaugh 360; 124 ER 1113, 382.

    [21] Osborne v Rowlett (1880) 13 Ch D 774, 785.

    [22] Christopher Enright, Legal Technique (The Federation Press, 2002) 249.

    [23] Christopher Enright, Legal Technique (The Federation Press, 2002) 251.

    [24] Garcia v National Australia Bank Limited (1998) 194 CLR 395, 56.

    [25] Catriona Cook, Robin Creyke, Robert Geddes, David Hamer, Tristan Taylor, Laying Down the Law (LexisNexis Australia, 9th Ed, 2015) 139.

    [26] Ian McLeod, Palgrave Macmillan Law Masters Legal Method (Palgrave, 9th Ed, 2013).

    [27] H.K. Lücke, ‘Ratio Decidendi: Adjudicative Rationale and Source of Law’ (1989) 1 Bond Law Review 49.

    [28] Christopher Enright, Legal Technique (The Federation Press, 2002) 247.

    [29] The Hon Justice Michael Kirby, ‘Precedent – Report on Australia’ (Speech delivered at the International Academy of Comparative Law Conference, Utrecht, The Netherlands, 17 July 2006) 3.

    [30] Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651, 664.

    [31] Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208, 218.

    [32] The Hon Justice Michael Kirby, ‘Precedent – Report on Australia’ (Speech delivered at the International Academy of Comparative Law Conference, Utrecht, The Netherlands, 17 July 2006) 4.

    [33] Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard University Press, 2009).

    [34] Garcia v National Australia Bank Limited (1998) 194 CLR 395, 57.

    [35] Perara-Cathcart v The Queen [2017] HCA 9, 134 (Majority).

    [36] Catriona Cook, Robin Creyke, Robert Geddes, David Hamer, Tristan Taylor, Laying Down the Law (LexisNexis Australia, 9th Ed, 2015) 141.

    [37] Rupert Cross and J. W. Harris, Precedent in English Law (Oxford University Press, 4th Ed, 1991).

    [38] Catriona Cook, Robin Creyke, Robert Geddes, David Hamer, Tristan Taylor, Laying Down the Law (LexisNexis Australia, 9th Ed, 2015) 145.

    [39] The Hon Justice Michael Kirby, ‘Precedent – Report on Australia’ (Speech delivered at the International Academy of Comparative Law Conference, Utrecht, The Netherlands, 17 July 2006) 5.

    [40] John Chipman Grey, The Nature and Sources of The Law, (The Macmillan Company, 2nd Ed, 1921) 261.

    [41] I was unable to access the original case. This extract comes from the book: Rupert Cross and J. W. Harris, Precedent in English Law (Oxford University Press, 4th Ed, 1991) 41.

    [42] Rupert Cross and J. W. Harris, Precedent in English Law (Oxford University Press, 4th Ed, 1991) 77.

    [43] Rupert Cross and J. W. Harris, Precedent in English Law (Oxford University Press, 4th Ed, 1991) 77.

    [44] Matthew Harding and Ian Malkin, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 246.

    [45] Matthew Harding and Ian Malkin, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 252.

    [46] Matthew Harding and Ian Malkin, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 253.

    [47] Matthew Harding and Ian Malkin, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 255.

     
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    The Anchoring Bias and its Effect on Judges (27 min read)

    Click here to read a PDF/printable version of this article.
     

    This is one of the strangest psychological phenomenon’s I’ve come across…

    In a classic study[1], participants watched a wheel of fortune spin and were then asked to estimate the number of African countries in the United Nations. The wheel was rigged to land on certain numbers. In one group, the wheel stopped at the number 10, and the other group, 65.

    The first group estimated an average of 25 countries in the UN. The second group estimated 45 – that’s an 80% increase. The obvious question arises, why would a wheel of fortune number affect people’s estimation?

    The answer, the psychological phenomenon known as ‘anchoring’. Anchoring is a surprisingly simple idea: we are influenced by numerical reference points, even if they are utterly irrelevant. That’s it.

    However, these trivial anchors can have a profound impact on those who are subject to judges rulings. For example, in one study, a journalist encountered the judges and asked them whether a prison sentencing would be higher or lower than a certain number. This number acted as an anchor and resulted in a 32% longer prison sentence. In another study, the plaintiff told the judges that a TV court show awarded a certain amount. The result: a 700% increase in compensation.

    The purpose of this article is not to embarrass judges, it’s to bring awareness to this phenomenon and ultimately defeat it.

    In the first section I provide a straight-to-the-point summary of the current research on the anchoring bias on judges. Secondly, I explain how the anchoring bias works. Thirdly, I present a mountain of evidence on the effects of the anchoring bias on judges. Fourthly, I examine the criticisms and lastly, I consider how a lawyer may induce and defend the anchoring bias.

    Note, if you are the skeptical reader, skip straight down to the section entitled ‘evidence’ and read a few studies.

    And now, I present to you, the anchoring bias.

     
     

    I.       Key Takeaways

    1. The anchoring bias is where a person is influenced by numbers that act as a reference point. These numbers may be utterly irrelevant. For example, one study asked participants to name the last two digits of their social security number, then asked them to decide on the amount they would bid for a bottle of wine. The participants with the digits 00 to 19 (low anchor), on average stated they would bid $11.73 (low price) for the bottle of wine. The participants with the digits 80 to 99 (high anchor), on average stated they would bid $37.55 (high price). The mere act of bringing numbers to mind resulted in a 220.12% difference.[2]

    2.     A total of 1090 judges from USA, Canada, Germany and the Netherlands participated in the following studies and the anchoring bias crept-in via a number of ways:

    a.     A prosecutor’s absurd sentencing demand: One study resulted in a 27.68% longer prison sentence, another 50%, and another, 60%.

    b.     A journalist reporter’s sentencing question: Resulted in a 32% longer prison sentence.

    c.     An absurd motion to dismiss: The defendant filed a motion to dismiss which alleged that the plaintiff’s compensation award would not meet the minimum requirements of $75,000. This number acted as an anchor and resulted in a 29.38% reduction in compensation.

    d.     Sentencing in years vs months: Identical meanings but different expression of that meaning can result in the anchoring bias. For example, ‘2 years’ vs ‘24 months.’ Both numbers have an identical meaning, yet judges are unconsciously influenced greater by the 24 months, than the 2 years. One study resulted in a 43.3% decrease when sentenced in months.

    e.     The mention of a court TV show compensation award: Resulted in a 700% increase in compensation.

    f.      The order of cases: When 2 cases were presented one after the other, the first case acted as an anchor on the second case resulting in longer prison sentences. One study showed a 40% longer prison sentence, another study 46.43%, and another 442.86%.

    g.     Damages caps: The damages cap acted as an anchor on minor claims and ironically resulted in excessively high compensation. One study showed a 47.83% increase in compensation and another, 250%.

    h.     Unlawful information: In one study, judges were explicitly reminded that certain information must be ignored by law. The judges that were exposed to a past interest rate for a bankruptcy case gave a 22.39% higher interest rate ruling. In another study, judges were explicitly reminded to ignore the information learned in settlement negotiations at a pretrial settlement conference. This information resulted in a 172.28% increase in compensation.

    3.     Jurors were also affected by the anchoring bias. The bias manifested itself in various ways:

    a.     The plaintiff’s compensation requests: Firstly, the more the plaintiff requested, the more the jurors awarded, even at comically high requests, such as $1 billion. Secondly, the more money the plaintiff requested, the more the jurors thought the defendant was liable.

    b.     Probability of causation: The probability of causation acted as an anchor resulting in a 100% increase in compensation. Obviously, the probability of causation of harm should not determine compensation, the amount of harm determines compensation. The effect is analogous to sentencing a man to prison for 60 years because they’re 100% certain the man stole a paperclip.

    4.     It is difficult for a lawyer to prevent a judge from committing the anchoring bias. It seems that it’s easier to induce the bias, than to counter it.

    5.     To reduce oneself from committing the anchoring bias, a strategy is to consciously counter argue the number. Think of as many reasons as possible why the number is wrong. This aids in breaking the anchor’s hold.

     
     

    II.       Understanding the Anchoring Bias

    The anchoring bias works both consciously and unconsciously. In both forms, the anchor acts as a reference point (the anchor) which keeps the mind nearby. The mind doesn’t seem to drift far from the reference point – hence the metaphor of a ship’s anchor. Below is a visual analogy.

     
     

    Anchor, then Adjust

    The first way anchoring works is through the concept known as ‘anchoring and adjustment.’[3] The mind jumps to the first anchor, then consciously adjusts from that point onwards.

    This is not necessarily bad because an anchor can contain useful information.[4] For example, let’s say you are selling your house, one may first observe the surrounding houses as an indication for your own selling price.

    The problem occurs when the mind does not adjust in its entirety. When the mind stops short, the anchoring bias has been committed.

    Mere Suggestion

    Secondly, the bias works through mere suggestion. The numerical suggestion throws the mind in a certain direction. For example:

    …the question “Do you now feel a slight numbness in your left leg?” always prompts quite a few people to report that their left leg does indeed feel a little strange.[5]

    That slight tingle you felt in your leg, that’s analogous to what’s happening to the mind.

    Once the suggestion has been made, anchoring induces a person to find reasons why the decision is similar to the anchor. And the opposite occurs also – the anchor tends to block reasons for why the decision is different to the anchor.[6] Anchoring does not necessarily work at the extreme level, such as blocking all reasons, but it roughly works in this manner, enough to cause a bias.

    An example of how this works is best explained in the classic ‘textbook price estimation’ study. The researchers asked students to estimate the average price of a textbook. But, half the participants were first asked whether the average price was higher of lower than $7,163.52. The students that were exposed to the ludicrous number estimated the average price to be higher than the students that were not exposed.

    …the absurdly high anchor leads people to recall highly expensive books. When they recognize that even the most expensive textbooks are far below the absurd anchor, they can reject the hypothesis that the average book is truly that costly. But when they then estimate the actual average price, they are thinking about expensive books, which produces higher estimates.[7]

    Thus, the mere suggestion of the number launched the students to reason in a certain direction which resulted in irrationally higher estimations.

    Now, let’s see how this phenomenon plays out on judges.

     
     

    III.       The Evidence: Anchoring Bias on Judges

    1.     THE PROSECUTORS DEMAND STUDY [8]

    In the following study, 39 judges were tested on the effects of prosecutors absurd sentencing demands. The judges were given a booklet containing a shoplifting case in which the accused had been caught stealing for the 12th time. They were asked to give their prison sentence after the prosecutor made their demand. But, here’s the twist, the judges were informed that the prosecutor's demand was entirely random. Therefore, the demand contained no reasonable information.

    Results and Key Takeaways

    1. The judges that were exposed to the low sentencing demand, gave a sentence of 4 months.
       
    2. The judges that were exposed to the high demand, gave a sentence of 6 months.
       
    3. This equals a 50% longer prison sentence.

    Answers to Possible Objections

    45% of the judges were women, the judges ranged from 29 to 61 year of age, and the average experience was 13 years. The more experienced judges were just as susceptible than the lessor experienced judges yet, the more experienced judges felt more confident in their decision.

    2.     THE DICE STUDY [9]

    The researchers in this study wanted to squash any doubts about the anchoring effect by designing the most absurd scenario as possible.

    52 young judges were given a booklet containing a case of theft. The judges were informed of the prosecutor's sentencing demand, however, the specific number was left blank. And so, the judges were told to discover the sentencing demand by throwing a pair of dice. The dice was rigged so that it landed on a low number for one group and a high number for the other group.

    Results and Key Takeaways

    1. The judges who’s dice landed on the low number gave a sentence of 5 months.
       
    2. The judges who’s dice landed on the high number gave a sentence of 8 months.
       
    3. This equals a 60% longer prison sentence.

    Weakness

    The judges in this study were young and inexperienced. However, other studies have shown that experience did not reduce the anchoring effect.[10] Thus, this study still holds its validity.

    How is This Study Relevant?

    Even though judges typically do not throw dice before making sentencing decisions, they are still constantly exposed to potential sentences and anchors during sentencing decisions. The mass media, visitors to the court hearings, the private opinion of the judge’s partner, family, or neighbors are all possible sources of sentencing demands that should not influence a given sentencing decision.         

    Sentencing decisions may also be influenced by irrelevant anchors that simply happen to be uppermost in a judge’s mind when making a sentencing decision.

    [Our research] suggests that irrelevant influences on sentencing decisions may be a widespread phenomenon.[11]

    3.     THE COMPUTER SCIENCE STUDY [12]

    In this study, 16 German trial judges were given a rape case with a sentencing demand. The sentencing demand is normally given by a prosecutor but in this study, the demand was given by a first-year computer science student.

    One group received a demand of 12 months (low anchor), and the other, 34 months (high anchor).

    Results & Key Takeaways

    1.     The judges that received the student’s sentencing demand of 12 months, sentenced the criminal to 28 months in prison.

    2.     The judges that received the student’s sentencing demand of 34 months, sentenced the criminal to 35.75 months to prison.

    3.     This is an increase of 27.68%.

    Answers to Possible Objections

    15 of the 16 judges found that the computer science student’s demand was irrelevant to their decision. The judges had an average of 15.4 years of experience.

    4.     THE JOURNALIST’S PHONE CALL STUDY [13]

    This study measured the effects of a journalist’s phone call which acted as an anchor.

    23 judges and 19 prosecutors from Germany were presented with a booklet of information containing a realistic rape case. In the booklet, the following information was given:

    During a court recess [you] receive a telephone call from a journalist who directly asks…, “Do you think that the sentence for the defendant in this case will be higher or lower than 1/3 year(s)?” (low/high anchor).

    The judges were then asked to hand down a prison sentence.

    Results and Key Takeaways

    1. The judges who were exposed to the low anchor gave a prison sentence of 25 months.
       
    2. The judges who were exposed to the high anchor gave a prison sentence of 33 months.
       
    3. This equals a 32% longer prison sentence.

    Answers to Possible Objections

    The participants ranged from 27 to 61 years of age and there were equal numbers of men and women. The average experience of the judges was 10 years. The higher experienced judges were just as susceptible as the lessor experienced judges, yet the higher experienced judges felt more confident in their decision then the lessor experienced judges.

    5.     THE MOTION TO DISMISS STUDY [14]

    The researchers in this study wanted to find out if a motion to dismiss could influence judges compensation awards. The number contained in the motion to dismiss would act as the anchor.

    167 judges were given a personal injury scenario where the plaintiff was hit by a truck due the truck’s faulty brakes. Half of the judges were given additional information that the defendant moved for a motion to dismiss because the damages did not add up to the minimum of $75,000 (the anchor). 97.7% of judges denied the motion to dismiss because the $75,000 seen as comically low.

    Results & Key Takeaways

    1. The judges that did not receive the anchor awarded the plaintiff $1,249,000.
       
    2. The judges that received the anchor of $75,000 awarded the plaintiff $882,000.
       
    3. This equals a 29.38% reduction in compensation.

    6.     THE MONTHS VS YEARS STUDY [15]

    135 judges were given a case of voluntary manslaughter. The accused stabbed to death a man who was having an affair with his fiancé.

    Half the judges were asked to sentence the accused in years, and the other half were asked to sentence in months.

    Results & Key Takeaways

    1. The judges that were required to sentence in years, sentenced the criminal to 9.7 years in prison.
       
    2. The judges that were required to sentence in months, sentenced the criminal to 5.5 years in prison.
       
    3. This equals a 43.3% decrease.
       
    4. Explanation: The sentence expressed in ‘months’ acted as an anchor which dragged the total sentence downwards. A simple illustration best explains this phenomenon: 12 months and 1 year are equivalent but the number 12 is larger than the number 1. Thus, the person becomes anchored on the number 12 and sentences a lower amount then they would have if they sentenced in years. The number 12 feels more extreme than the number 1.

    Answers to Possible Objections

    The judges had an average of 13 years of experience and 29% of judges were female. Males and females suffered from the anchoring bias equally.

    7.     THE COURT TV SHOW STUDY [16]

    82 judges were given information about an employment discrimination case. Throughout the plaintiff’s employment, the defendant said offensive phrases such as “go back to Mexico.” Later, the defendant fired the plaintiff and the plaintiff sued.

    Half of the judges were given additional information which stated that the plaintiff saw a TV court show and the show awarded the plaintiff $415,300. This number acted as the anchor.

    Results & Key Takeaways

    1. The judges that did not receive the mention of a TV show compensation (no anchor), awarded the plaintiff $6,250.
       
    2. The judges that received the mention of a TV court show compensation (the anchor), awarded the plaintiff $50,000.
       
    3. This equals an increase of 700%.

    8.     THE ORDER OF CASES STUDY [17]

    A judge may hear a range of cases, some serious and some minor. The order in which the judge hears a case may affect the outcome of the subsequent case. For example, a judge that first rules on a manslaughter case, then rules on a threat of violence case, may become anchored on the manslaughter case, which may result in higher sentence on the threat of violence case.

    And this is what the researchers attempted to find out.

    This study was repeated 3 times. First, with 71 newly appointed military judges, second, with 39 Arizona Judges and last, with 62 Dutch judges.

    Half the judges viewed the serious crime first (manslaughter), followed by the minor crime (threat of violence). And the other half viewed the minor crime first, followed by the serious crime.

    Results & Key Takeaways

    Military Judges:

    1. When the serious crime was heard first, the sentence on the minor crime was longer by 40%.
       
    2. When the minor crime was heard first, the sentence on the serious crime was shortened by 21.95%.

    Arizona Judges:

    1. When the serious crime was heard first, the minor crime was raised by 46.43%.
       
    2. When the minor crime was heard first, the serious crime was unaltered. This means that the minor crime did not influence the serious crime.

    Dutch Judges:

    1. When the serious crime was heard first, the minor crime was raised by 442.86%.
       
    2. When the minor crime was heard first, the serious crime was unaltered. (Note, we can visually see the difference between the ‘Serious Crimes’ as the first is at 6.46 and the second, 5.79. However, for statistical reasons, the difference was not valid.)

    Answers to Possible Objections

    24% of the military judges were female, 39% of the Arizona judges female, and 39% of the Dutch judges were female. The Arizona judges had an average of 11.5 years experience as a judge, and the Dutch judges an average of 13.2.

    Conclusions

    1. When the serious crime was heard first, this anchored the second minor crime which resulted in an increase in sentencing. The smallest increase was 40% and the largest increase was 442.86%.
       
    2. When a minor crime was heard first, it did not consistently anchor the second serious crime.

    9.     THE DAMAGES CAP STUDY [18]

    Can a damages cap act as an anchor?

    115 Canadian and 65 New York trial judges were given an automobile accident and were asked to award damages for pain and suffering. Due to the plaintiff’s injuries caused by the car crash, he suffered from severe headaches and was unable to concentrate at work, nor was he able to play with his kids.

    Half of the judges were told that the damages cap was $322,236 (Canadian cap) / $750,000 (New York cap) and the other half of the judges were told nothing.

    Results & Key Takeaways

    Canadian Judges:

    1. The judges who were not informed of a damages cap awarded the plaintiff $57,500.
       
    2. The judges who were informed of a damages cap awarded the plaintiff $85,000.
       
    3. Therefore, the damages cap ironically resulted in an increase of 47.83%.

    New York Judges:

    1. The judges who were not informed of a damages cap awarded the plaintiff $100,000.
       
    2. The judges who were informed of a damages cap awarded the plaintiff $250,000.
       
    3. Therefore, the damages cap ironically resulted in an increase of 250%.

    10.  THE BANKRUPTCY STUDY [19]

    In this study, 112 highly specialised bankruptcy judges were given the following scenario and asked to make a ruling.

    A truck driver borrowed a few thousand dollars at a 21% interest rate from a small loans company. Later, the truck driver restructured the loan but they couldn’t agree on the new interest rate.

    The bankruptcy judges were required to determine the interest rate.

    Half of the judges were given the following sentence: “[t]he parties agree that… the original contract interest rate is irrelevant to the court's determination.” The other half were informed of the interest rate which was designed to act as an anchor. It read: “[t]he parties agree that… the original contract interest rate of 21% is irrelevant to the court's determination.” The researchers emphasised the importance of ignoring the 21% by giving the judges a precedent to read that stated judges must ignore the initial interest rate.

    Results & Key Takeaways

    1. The judges that were given no anchor, ruled an average of 6.52%.
       
    2. The judges that were given an anchor, ruled an average of 7.98%.
       
    3. This results in a 22.39% increase. Therefore, the judges could not ignore the anchor even under explicit instructions under law.

    Answers to Possible Objections

    These differences  might seem small. The differences, however, are obviously meaningful to debtors struggling to crawl out of bankruptcy; a one point difference on a $10,000 loan can mean hundreds or even thousands of dollars over the life of the loan.

    11.  THE PRETRIAL SETTLEMENT CONFERENCE STUDY [20]

    Can judges ignore information that is learned at a pretrial settlement conference?

    265 judges were given a booklet of information on an automobile accident case. In the booklet, they were told to imagine that they previously attended a pretrial settlement conference and during the conference, the plaintiff’s compensation demands were rejected. One group were told the plaintiff demanded $10 million and the other group were not told the specific demand. The $10 million acted as the anchor.

    The judges were told to make a ruling as if it was a real trial. The judges were also explicitly reminded that law the law requires them to not consider the negotiations at the pretrial settlement conference.

    Results and Key Takeaways

    1. The judges that did not receive the plaintiff’s demand, awarded the plaintiff $808,000.
       
    2. The judges that received the plaintiff’s $10,000,000 demand, awarded the plaintiff $2,200,000.
       
    3. This equals a 172.28% increase.
     
     

     IV.       The Evidence: Anchoring Bias on Jurors

    1.     THE BIRTH CONTROL PILL STUDY [21]

    In this study, the researchers tested the effects of the anchoring bias on mock jurors. The first study measured the effect of a monetary anchor on the probability of causation. The second study measured effect of a monetary anchor on compensation awards.

    56 mock jurors were given a booklet of information containing a personal injury case. In the case, the plaintiff argued that her birth control pill caused her ovarian cancer. The plaintiff was suing the Health Maintenance Organisation for prescribing her a cancer-causing pill.

    The information for all participants was identical except for the amount of damages the plaintiff requested. The researchers asked the mock jurors a series of questions.

    Results & Key Takeaways

    On a scale of 1% – 100%, the mock jurors were asked to decide whether the defendant caused the plaintiff's injury.

    1. The jurors that received the low anchor judged a 26.4% probability that defendant caused the plaintiff's jury.
       
    2. The jurors that received the high anchor judged a 43.9% probability that the defendant caused the plaintiff's injury.
       
    3. Therefore, the higher the anchor, the higher the perceived probability of causality.

    Next, jurors were asked to judge how much money the plaintiff deserved. The only factors that changed between jurors was the amount of money that the plaintiff requested.

    1. The group that received a $100 request awarded the plaintiff $992.27.
       
    2. The group that received a $20,000 request awarded the plaintiff $36,315.50.
       
    3. The group that received a $5 million request awarded the plaintiff $442,413.39.
       
    4. The group that received a $1 billion request awarded the plaintiff $488,942.41.
       
    5. Therefore, the higher request, the higher the jurors awarded the plaintiff.

    Answers to Possible Objections

    Firstly, the amount of money that the plaintiff requested did not influence the jurors’ perceptions of the defendants suffering. That is, extreme money request did not trigger the jurors mind the perceive that the plaintiff suffered more.

    Secondly, the jurors reasoned with full knowledge that the plaintiff’s request was absurd.

    Thirdly, the jurors felt that the plaintiffs who requested high compensation were more selfish and less generous, yet, paradoxically they awarded the same people higher compensation.

    2.     THE 2ND BIRTH CONTROL PILL STUDY [22]

    Before I proceed with this study, I will start with a simple analogy as it best explains this bizarre phenomenon.   

    Imagine a group of jurors deciding upon a case of theft but the evidence is extremely clear. There’s CCTV footage of the theft, there’s several witnesses, and the thief himself even admitted his crime. Then, the jurors being so convinced of the thief’s guilt that they sentence him to 60 years in prison. But, here’s the twist: he stole a paperclip.

    Well, this exaggerated illustration is what happened in the study below. A person’s punishment or compensation is not related to how guilty defendant is. It’s related to the seriousness of the crime or the level of the plaintiff’s suffering.

    Thus, this study measured the effect of the probability of causation (anchor) on the jurors compensation awards.

    162 mock jurors were given a booklet of information containing a personal injury case. The plaintiff argued that her birth control pill caused her ovarian cancer. The plaintiff is suing the Health Maintenance Organisation for prescribing her a cancer-causing pill. The information for all participants was identical except for the probability of causation. That is, did the pill cause the cancer? One group received evidence showing a 90% probability of causation and the other group received evidence showing a 10% probability of causation.

    Results and Key Takeaways

    1. Participants that received the low anchor (10% probability of causation) awarded the defendant $300,000.
       
    2. Participants that received the high anchor (90% probability of causation) awarded the defendant $600,000.
       
    3. This equals a 100% increase in compensation.

    The higher compensation awards were probably due to the negative feeling towards the defendant. The ‘90% probability group’ had strong levels of negative feelings toward the defendant and so, they probably searched for reasons why the defendant deserved to punished by awarding higher compensation to the plaintiff.

    Answers to Possible Objections

    The $300,000 and $600,000 awards were not correlated with the jurors perception of the plaintiff’s suffering. That is, the ‘90% probability’ group did not award the plaintiff $600,000 because they thought that the plaintiff suffered more.

     
     

    V.         Criticisms of Anchoring

    The biggest criticism against the anchoring bias is that the anchor itself may have contained some useful information. For example, in ‘The TV Court Show Study’ (see above):

    The judges who saw the reference to $415,300… could have interpreted this as an indication that the case was much more serious than the facts suggested.[23]

    This kind of explanation occurs for virtually all studies. The researchers continually invent a reason for why the anchor is not truly an anchor.

    The second criticism is that the participants didn’t take the absurd studies seriously. For example, in ‘The Dice Study’ (see above):

    …using dice as a reference point is obviously strange and might have undermined the judges' willingness to take the study seriously. It is hard to imagine what the judges thought that the point of the dice roll was in this experiment.

    However, I don’t buy either of these criticisms. One can construct a conspiracy for all studies. For example, maybe the dice in the ‘dice rolling study’ was not random at all. Maybe the government was trying to send the judges a secret message through the dice… Or, maybe the judges lied and thought the computer science student (see study above) was a hidden genius who had been who had been reading law textbooks since the age of 6. Researchers could experiment for the next 50 years and design more and more sophisticated studies, but, I still think a reason can be invented for why the anchor contained some secret information.

    It is true that anchors can contain information but at some point, denial becomes wacky. There is an overload of evidence over the last 40 years coming from many fields all pointing in the same direction: we are affected by numerical reference points.

    AUTHOR’S OPINION

    I answer the following two questions: 1) Will the anchoring bias affect the outcome of a court case? 2) If the anchoring bias occurred in a court case, will we know it?

    Will the anchoring bias affect the outcome of a court case?

    1) Firstly, a strong criticism against the anchoring bias is that real court-cases contain more information than the studies provide. Some argue that the additional information may ‘mute’ the effects of anchoring.[24]

    However, a study on real-estate agents provides some counter-evidence:

    In an experiment conducted some years ago, real-estate agents were given an opportunity to assess the value of a house that was actually on the market. They visited the house and studied a comprehensive booklet of information that included an asking price. Half the agents saw an asking price that was substantially higher than the listed price of the house; the other half saw an asking price that was substantially lower. Each agent gave her opinion about a reasonable buying price for the house and the lowest price at which she would agree to sell the house if she owned it. The agents were then asked about the factors that had affected their judgment.

    Remarkably, the asking price was not one of these factors; the agents took pride in their ability to ignore it. They insisted that the listing price had no effect on their responses, but they were wrong: the anchoring effect was 41%. Indeed, the professionals were almost as susceptible to anchoring effects as business school students with no real-estate experience, whose anchoring index was 48%.[25]

    There are two key factors that stood-out in this study. i) The real-estate agents physically visited the house, which means the study extended beyond a mere written description. This means, the anchoring bias infiltrated further then the clinical setting, which may possibly extend into the courtroom. ii) Next, a key factor in this study is that the booklet of information was comprehensive. The additional information provided in this study did not ‘mute’ the effects of the anchoring bias.

    2) Secondly, a criticism I have against the anchoring bias, and all biases, is the following:

    As the number of variables increase, the harder it is to predict the interaction of these variables. This is illustrated by the graph below.

    While I do not doubt the existence of anchoring bias, I do doubt whether we can predict whether it will occur in a court case due the sheer number of variables that may interact with each other.

    For example, studies have shown that judges are affected by: time of day;[26] physical attractiveness of the defendant;[27] baby-faced defendants;[28] the age of the defendant;[29] framing;[30] egocentric bias;[31] hindsight bias;[32] representative bias;[33] and so on.

    Even if the judge explicitly states his/her reasoning, I think one can still hold their reasons with some skepticism. The 7th circuit US judge Richard Posner argues that it can be hard to know what the judge’s real reasons for his or her decision.[34] Posner asserts that judges may say one thing, but really, they mean another. This may be due to political correctness; conforming to the court to obtain a promotion; posthumous fame; ideological propensity; the judgment was written by clerks; and so on.

    Furthermore, the book The Legal Analyst [35] provides a smorgasbord of ways a judge may decide a case. Such as: ex ante; ex post; deterrence;[36] Kaldor-hicks efficiency; thinking at the margin; and many others. The author also emphases that the judge may not explicitly state these reasons for their decision.

    And, finally, the philosopher Holmes identifies this over 100 years ago:

    The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by-which men should be governed.[37]

    These variables demonstrate the sheer number of influences that can affect the outcome of a court case. And so, what would happen if the defense used the anchoring bias and simultaneously, the defendant was unattractive? Or, the case was a ‘no brainer’ from a legal perspective, but the defense used every trick under the sun? Would the variables cancel each other out or interact in an unknown way?

    If the anchoring bias occurred in a court case, will we know it?

    Here, the classic statistical concept of ‘correlation does not mean causation’ applies. If the outcome of a court case was lower or higher than expected, we will probably not know what the true cause was. This is due to the enormous range of variables that may apply, as demonstrated under the previous question. Thus, as the number of variables increase, the harder it is to infer the causal factor/s. Observe the illustration below.

    The number of variables dramatically increases the uncertainty in identifying the true cause. If the anchoring bias occurred in a court case, we probably won’t know it. Was the increase due to the anchoring bias, or due to deterrence, or due to the time of day, or the egocentric bias, or unattractiveness, etc., etc.?

    CONCLUSION

    I therefore conclude the following:

    1. If the number of variables are high, then I speculate that it’s near impossible to know whether it will occur in an actual court case.
       
    2. If the numbers of variables are high, then I speculate that it’s near impossible to know whether it has affected a court case.
       
    3. This is not to say that it will not occur, it is to say that we just don’t know.
       
    4. However, as the evidence is overwhelmingly in favour of the anchoring bias, I assert that it is safer to defend it, than to let the bias creep through.
     
     

    VI.       Inducing and Defending the Anchoring Bias

    The following section is on the ways a lawyer may potentially exploit the anchoring bias and ways to potentially defend it. The purpose here is not to endorse dirty tricks, it’s to recognise when and where the anchoring bias may arise so that one can counter it.

    1.     INDUCING THE BIAS

    Rapid Decision Making

    Judges, like other decision makers, are most likely to rely on cognitive shortcuts, such as anchoring, when they face time constraints that force them to process complex information.[38]

    A judge that is inundated with cases will be more prone to cognitive biases.[39] They may not have the luxury of carefully going through each case with a fine-tooth comb but this is where the threat of exploitation lies. Judges themselves have admitted that their busyness leads to ‘less-than-optimal decision making.’[40]

    Inserting Irrelevant Anchors

    All studies in this article contribute towards the evidence that humans are prone to influence by irrelevant anchors. Thus, if lawyers slip in a few random reference points here-and-there, judges may be unconsciously influenced.

    2.     DEFENSES

    I must admit, finding defenses to the anchoring bias was difficult. Studies have attempted to reduce the anchoring bias but have failed.[41] There have been many suggestions on reforming the legal system, but, until the legal system is reformed, they have little use for lawyers. Some of these suggestions include:

    …attempting to train judges to avoid the impact of anchoring, prohibiting litigants from mentioning numbers that might operate as anchors (such as a damage cap or plaintiffs ad damnum), separating decision-making functions, requiring explanations for the amount of damages awarded or the sentence imposed, relying on aggregated data, and cabining discretion with sentencing guidelines and damage schedules.[42]

    Nonetheless, one way to potentially reduce the anchoring effect on sentencing is to place a heavy emphasis on past decisions. Judges intentionally look for reference points[43] and in one study, the judges became frustrated because the researchers intentionally did not provide one.[44] It seems that judges both consciously and unconsciously look for an anchor, thus past decisions may fill this role.

    On an individual level, the best suggestion I’ve found to fight the anchoring bias is to find as many reasons as possible why the anchor is wrong. Consciously counter argue and debunk the number as this may break mind’s the natural gravitation towards the reference point.   

    3.     FAILED DEFENSES

    The following is a list of factors, methods and strategies that do not work or have little effectiveness.

    1. A Judge’s experience: Experienced judges are equally susceptible to trivial anchors as unexperienced judges.[45] One study showed that experienced judges were equivalent to newly admitted lawyers.[46] Another study showed that experienced judges were equivalent to law students.[47] There was one key difference between the experienced and inexperienced judges, the experienced judges were more certain of their judgments.
       
    2. Relying on specialised judges to be immune from anchoring: Specialist judges from the US were immune other biases, such as ‘omission bias, a debtor's race, a debtor's apology, and "terror management" or "mortality salience’”[48], but not immune from anchoring.
       
    3. Expecting the judge to ignore irrelevant information: All studies in this article provide counter evidence.
       
    4. Expecting the judge to ignore irrelevant information, even when they must ignore it by law: In the study Inside the Bankruptcy Judges Mind,[49] the judges were explicitly informed that the law states they were to ignore a percentage rate and must not include it in their decision. This explicit instruction had no effect as the judges accidentally anchored on the percentage rate. The same thing happened in another study.[50] The judges were explicitly reminded that the number cannot be taken into consideration by law. However, they still anchored on the number. Therefore, explicit instructions, even by law, will likely not reduce the anchoring bias.
     
     

    End Notes

    [1] Judgment Under Uncertainty: Heuristics and Biases (1974) by Daniel Kahneman & Amos Tversky

    [2] "Coherent Arbitrariness": Stable Demand Curves without Stable Preferences (2003) by Dan Ariely, George Loewenstein and Drazen Prelec

    [3] Judgment Under Uncertainty: Heuristics and Biases (1974) by Daniel Kahneman & Amos Tversky

    [4] Thinking Fast and Slow (2011) by Daniel Kahneman

    [5] Thinking Fast and Slow (2011) by Daniel Kahneman [121]

    [6] The Limits of Anchoring (1994) by G. B. Chapman & E. J. Johnson

    [7] Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences (2015) by Jeffrey J. Rachlinski, Andrew J. Wistrich, & Chris Guthrie

    [8] Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making (2006) by Birte Englich, Thomas Mussweiler, & Fritz Strack

    [9] Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making (2006) by Birte Englich, Thomas Mussweiler, & Fritz Strack

    [10] Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making (2006) by Birte Englich, Thomas Mussweiler, & Fritz Strack; Experts, Amateurs, and Real Estate: An Anchoring-and-Adjustment Perspective on Property Pricing Decisions (1987) by Gregory B. Northcraft & Margaret A. Neale

    [11] Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making (2006) by Birte Englich, Thomas Mussweiler, & Fritz Strack

    [12] Sentencing Under Uncertainty: Anchoring Effects in the Courtroom (2001) by Birte Englich & Thomas Mussweiler

    [13] Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making (2006) by Birte Englich, Thomas Mussweiler, & Fritz Strack

    [14] Inside the Judicial Mind (2001) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [15] Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences (2015) by Jeffrey J. Rachlinski, Andrew J. Wistrich, & Chris Guthrie

    [16] The Hidden Judiciary: An Empirical Examination of Executive Branch Justice (2009) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [17] Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences (2015) by Jeffrey J. Rachlinski, Andrew J. Wistrich, & Chris Guthrie

    [18] Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences (2015) by Jeffrey J. Rachlinski, Andrew J. Wistrich, & Chris Guthrie

    [19] Inside the Bankruptcy Judge’s Mind (2006) by Jeffrey J. Rachlinski, Chris Guthrie, & Andrew J. Wistrich

    [20] Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding (2005) Andrew J. Wistrich, Chris Guthrie, & Jeffrey J. Rachlinski

    [21] The More You Ask for, the More You Get: Anchoring in Personal Injury Verdicts (1996) by Gretchen B. Chapman & Brian H. Bornstein

    [22] The More You Ask for, the More You Get: Anchoring in Personal Injury Verdicts (1996) by Gretchen B. Chapman & Brian H. Bornstein

    [23] Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences (2015) by Jeffrey J. Rachlinski, Andrew J. Wistrich, & Chris Guthrie

    [24] Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding (2005) Andrew J. Wistrich, Chris Guthrie, & Jeffrey J. Rachlinski

    [25] Thinking Fast and Slow (2011) by Daniel Kahneman

    [26] http://www.thelawproject.com.au/blog/study-shows-judges-are-65-more-likely-to-grant-parole-after-lunch; Extraneous factors in judicial decisions (2011) by Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso

    [27] http://www.thelawproject.com.au/blog/attractiveness-bias-in-the-legal-system; Natural Observations of the Links Between Attractiveness and Initial Legal Judgments (1991) by A. Chris Downs and Phillip M. Lyons

    [28] The Impact of Litigants' Baby-Facedness and Attractiveness on Adjudications in Small Claims Courts (1991) by Leslie A. Zebrowitz and Susan M. McDonald

    [29] What's In A Face? Facial Maturity And The Attribution Of Legal Responsibility (1988) by Diane S. Berry

    [30] Inside the Judicial Mind (2001) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [31] Inside the Judicial Mind (2001) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [32] Inside the Judicial Mind (2001) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [33] Inside the Judicial Mind (2001) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [34] Richard Posner, Empirical Legal Studies Conference keynote held by University of Chicago Law School: https://youtu.be/18i5yUNJq30

    [35] The Legal Analyst: A Toolkit for Thinking About the Law (2007) by Ward Farnsworth

    [36] http://www.abc.net.au/news/2016-12-16/nurofen-fined-6m-for-misleading-consumer/8126450

    [37] The Common Law (1881) by Oliver Wendell Holmes

    [38] Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding (2005) Andrew J. Wistrich, Chris Guthrie, & Jeffrey J. Rachlinski

    [39] Blinking on the Bench: How Judges Decide Cases (2007) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [40] Blinking on the Bench: How Judges Decide Cases (2007) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [41] Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences (2015) by Jeffrey J. Rachlinski, Andrew J. Wistrich, & Chris Guthrie

    [42] Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences (2015) by Jeffrey J. Rachlinski, Andrew J. Wistrich, & Chris Guthrie

    [43] Inside the Judicial Mind (2001) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [44] Inside the Judicial Mind (2001) by Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich

    [45] Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences (2015) by Jeffrey J. Rachlinski, Andrew J. Wistrich, & Chris Guthrie; (2006) Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making (2006) by Birte Englich, Thomas Mussweiler, & Fritz Strack

    [46] Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making (2006) by Birte Englich, Thomas Mussweiler, & Fritz Strack

    [47] Sentencing Under Uncertainty: Anchoring Effects in the Courtroom (2001) by Birte Englich & Thomas Mussweiler

    [48] Inside the Bankruptcy Judge’s Mind (2006) by Jeffrey J. Rachlinski, Chris Guthrie, & Andrew J. Wistrich

    [49] Inside the Bankruptcy Judge’s Mind (2006) by Jeffrey J. Rachlinski, Chris Guthrie, & Andrew J. Wistrich

    [50] Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding (2005) Andrew J. Wistrich, Chris Guthrie, & Jeffrey J. Rachlinski

    Physical Attractiveness Bias: 27 Studies on Why Attractive People Win in the Legal System

    [Download for PDF/printable version of this article]
     

    When I started looking into this subject, I predicted a person’s physical attractiveness would only have minor advantages. I was wrong.

    In fact, I was so wrong, that in one study, the effects of physical attractiveness on judges were so influential, they fined unattractive criminals 304.88% higher than attractive criminals.

    Surprising, I know.

    Before we proceed, I want to address a few concerns of mine. Firstly, the information that you will read may cause some readers to feel unsettled. This is not my intention. Yes, it is disheartening. But the purpose of this article is to inform lawyers and other decision makers so that they can use the attractiveness bias to their advantage or to counter it.

    A second concern of mine is that I don’t want to over-emphasise the attractiveness bias. Judges and jurors are affected by all kinds of cognitive distortions, such as emotive evidence, time of day, remorse of the defendant, socioeconomic status, race, gender, anchoring effect, and the contrast bias.

    In the first section of this article, I give a ‘straight-to-the-point’ summary of the research conducted by 27 studies. Next, I enter into greater depth on the attractiveness bias and its effects on judges, jurors, and lawyers. Lastly, I provide research on the attractiveness bias in everyday life. Arguably, the last section is the most interesting.

    Enjoy!

    * * *

    Key Takeaways

    1. Physical Attractiveness had a significant influence on judges sentencing. The more unattractive the criminal, the higher the sentence. Or conversely, the more attractive the criminal, the lower the sentence. The results of three studies show a minimum increase of 119.25% and a maximum increase of 304.88%.
       
    2. Attractiveness had little to no effect on a judge’s verdict of guilt. Attractive and unattractive criminals were convicted equally.
       
    3. Mock jurors generally sentenced unattractive criminals significantly higher than attractive criminals. However, as jurors do not determine sentencing in real court cases, these results are not directly applicable.
       
    4. Attractiveness had minor effects on mock juror’s verdicts. Some studies reported minor effects and some studies reported no effects.
       
    5. Generally, attractive people are perceived as more intelligent, more socially skilled, more appealing personalities, more moral, more altruistic, more likely to succeed, more hirable as managers, and more competent. Attractive people tend to have better physical health, better mental health, better dating experiences, earn more money, obtain higher career positions, chosen for jobs more often, promoted more often, receive better job evaluations, and chosen as business partners more often, than unattractive people.
       
    6. I believe that the attractiveness bias is rarely conscious. I do not think people are consciously disfavouring unattractive people. I also do not place moral blame on the typical person for their unconscious bias.

    * * *

    ‘Attractiveness Bias’ in the Legal System

    REAL JUDGES: SENTENCING

    THE MISDEMEANOUR STUDY [1]

    The first study we will observe is the research conducted by Downs and Lyons.

    The purpose of this study was to find a link between a criminal’s attractiveness and sentencing outcomes.

    They gathered a group of police officers and students to rate the attractiveness of over 2000 criminals. A scale of 1 - 5 was used and their ratings were mostly similar.

    Then, the judges sentencing decisions were divided into two main categories: misdemeanors and felonies. Misdemeanors were separated into to 3 classes, related to the severity of the crime.

    The Results & Key Takeaways

    Misdemeanours:

    The judges fined unattractive criminals significantly more than attractive criminals. The fine incrementally increased as the attractiveness decreased.

    1.     Minor Misdemeanours = +224.87%

    2.     Moderate Misdemeanours = +304.88%

    3.     Serious Misdemeanours = + 174.78%

    The results are graphed below.

    Image test 1.jpg

    Felonies:

    Curiously, felony fines had no correlation with the attractiveness of the criminal. The study does not make it clear why this is the case.

    Answers to Possible Objections

    • The judges varied in gender and race.
    • There was no correlation between sentencing outcomes and age, gender, and race.

    Weaknesses

    For privacy reasons, the specific crime was not documented.

    The direction of causation is not known. I enter into more depth in the section entitled ‘causation’.

    THE PENNSYLVANIAN STUDY [2]

    In Pennsylvanian and Philadelphian courts, the researcher’s gathered data on 67 defendants. The defendants were a mix of black, Hispanic, and white and there were 15 real judges in total.

    Results & Key Takeaways

    On average (mean), criminals of low attractiveness were sentenced to 4.10 years in prison and criminals of high attractiveness were sentenced to 1.87 years in prison. This equals a 119.25% increase.

    Weaknesses

    All observers were white.

    THE SECOND PENNSYLVANIAN STUDY [3]

    This study was similar to the previous study. The researchers recorded data from real court cases in Pennsylvania. They detailed the physical attractiveness of 60 defendants and their neatness, cleanliness, and quality of clothing. Then, they recorded the judge’s decisions.

    The criminals were charged with a range of felonies, including ‘murder; manslaughter; rape; kidnapping; armed robbery; aggravated assault; indecent assault; arson; burglary; conspiracy to sell/delver heroin, cocaine, hashish, and other elicit drugs; extortion; fraud; theft; and firearms violation.’

    They were also a mix of white, Hispanic and black. 

    Results & Key Takeaways

    The unattractive defendants were punished higher than the attractive defendants.

    Weaknesses

    The study did not give specific results. This is a major disappointment.

    CONCLUSIONS

    Unattractive criminals were punished higher than attractive criminals in three studies. The lowest increase was at 119.25% and the highest increase was at 304.88%.

    REAL JUDGES: VERDICT, GUILTY OR NOT-GUILTY

    There was no association between the defendant’s physical attractiveness and the judge’s verdict. Attractive and unattractive criminals were found guilty at equal rates. Zebrowitz and McDonald [4] also found that the plaintiff’s attractiveness had little to no effects on a judge’s verdict.

    THE BABY-FACED STUDY [5]

    The following study is not directly related to physical attractiveness but it is related to physical appearance.

    Zebrowitz and McDonald measured the effects of defendants with a ‘baby-face’ and the judge’s verdict decisions. This is a strange characteristic to measure, however, the results were significant enough to warrant attention.

    ‘Baby-faced adults tend to have larger eyes, thinner, higher eyebrows, a large forehead and a small chin, and a curved rather than an angular face.’[6] A team of participants sat in 421 cases in ‘6 branches of the Commonwealth of Massachusetts small claims courts. 3 judges heard 51% of the cases and the remaining 49% of the cases were presided over by 22 additional judges.’ ‘62% of the plaintiffs and 78% of the defendants were male. 96% of both plaintiffs and defendants were white, and 81% were between the ages of 21 and 50.’

    Results & Key Takeaways

    The more baby-faced an adult was, the less likely he/she was found to be guilty for ‘intentional actions’ in civil claims. Observe the graph below.

    Interestingly, baby-faced adults had no effects in claims of negligent actions.

    MOCK JURY: SENTENCING

    Before I present the following research, I need to address a major limitation. Jurors do not decide upon sentencing, thus, the following results may not have direct application.

    THE META-ANALYSIS STUDY [7]

    A meta-analysis examined 25 studies on the effects of physical attractiveness on mock jurors. They found that mock jurors gave higher sentences to unattractive criminals than attractive criminals. This was only for crimes of rape, robbery, and negligent homicide. For swindle, the punishment was equal. The physical attractiveness of the victim also had no effects on the jurors.

    THE BURGLARY STUDY [8]

    In this study, the participants were given a burglary scenario along with an image of the criminal. Some received the unattractive criminal and others received the attractive criminal. 10 psychology students rated the attractiveness of the criminals prior to the study to determine attractiveness.

    Then, they were asked to suggest a 1, 5, 10, 15, or 20 years imprisonment.

    ‘[The] participants consisted of 40 Euro-American men, 40 Euro-American women, 40 African- American men, and 40 African-American women.’ A strength of this study is the participants ranged in race, gender, and age.

    Results & Key Takeaways

    The attractive criminal was given an average sentence of 9.7 years, and the unattractive criminal was given 14.7 years. That’s an increase of 51.55%.

    Weaknesses

    The researchers measured more items than simply attractiveness. This means that the 160 participants were not all measured on attractiveness. As they measured 8 different items and only two of them on attractiveness, I infer that the sample size consisted of 40 participants. 

    Jurors may be influenced by the mannerisms of criminals and victims. In this study, photographs were used, thus the jurors could not be influenced in that way.

    MORE STUDIES

    The attractiveness bias may affect civil cases also. Kulka and Kessler presented the participants with an audio-video showing an automobile negligence case. The mock jury consistently awarded fewer damages to the unattractive defendant.[9]

    In Desantts and Kayson’s mock trial, the mock jurors were given a burglary scenario. The only changing factor was the attractiveness of the defendant. The unattractive defendant was given a higher sentence than the attractive defendant.[10] In another mock burglary trial, the jurors gave higher sentences to the unattractive defendant. However, in the swindle trial, higher sentences were given to the attractive defendant. It was hypothesised that the attractive defendant used her attractiveness in the swindle case, and the jurors held this with disapproval.[11] Smith and Hed found the same results. The unattractive burglar was sentenced higher but the attractive swindler was sentenced higher.[12]

    CONCLUSIONS

    It’s clear that mock jurors possess a bias against unattractive defendants.

    For negligent homicide, robbery, burglary, and civil negligence, unattractive defendants were sentenced higher than attractive defendants.

    For swindle cases, attractiveness bias seems to have the reverse effect.

    However, jurors do not make sentencing decisions, thus, these results do not have direct application.

    MOCK JURY: VERDICT, GUILTY OR NOT GUILTY

    There is a clear distinction between what jurors believe to be ethical and what jurors actually decide. One study surveyed a series of mock jurors and found that 93% thought physical appearance should not be considered when evaluating guilt.[13] It’s reasonable to assume that jurors are not consciously associating physical attractiveness with guilt and sentencing.

    THE META-ANALYSIS STUDY [14]

    A meta-analysis examined 25 studies on the effects of physical attractiveness on mock jurors. They found Mock jurors find unattractive defendants guilty more often than attractive defendants. However, the results were not significant.

    THE CANADIAN SEXUAL ASSAULT STUDY [15]

    125 university students participated in this study. All students were white and Canadian.

    The focus was to test the effects of white jury members perceptions of the physical attractiveness of white victims of rape. Were defendants found guilty more often when the plaintiff was attractive?

    Participants read a four-page trial excerpt that included opening and closing statements from the Crown and Defence lawyers, and testimony from both the defendant and the victim. In the excerpt, it is specified that the victim and the defendant are colleagues, and the victim invited the defendant over to her home for dinner. Both the victim and the defendant agree that sexual intercourse occurred, but the victim alleged that the sexual intercourse was forced, whereas the defendant maintained that it was consensual.

    Key Takeaways

    Victim Attractiveness:

    1. 34.8% of men thought the defendant was guilty with an attractive victim and 52.3% of women thought the defendant was guilty with an attractive victim. Most men were not confident in their decision. Women were neutral in their confidence. This means, women were more likely to find a defendant guilty when the victim was attractive.
       
    2. 65.2% of men thought the defendant was guilty with an unattractive victim and 47.4% of women thought the defendant was guilty with unattractive victim. Most men were confident in their decision. Women were neutral in their confidence. This means men were slightly more likely to find the defendant guilty with an unattractive female victim.
       
    3. Men seem to be influenced more by a female victim’s attractiveness than women. Women seem to be more consistent regardless of a female victim’s attractiveness.

    Weaknesses

    The mock jurors were university students and the average age was 20. The victim was always female and white.

    MORE STUDIES

    The attractiveness bias may affect civil cases also. Kulka and Kessler presented the participants with an audio-video showing an automobile negligence case. The mock jury consistently gave more guilty verdicts to unattractive defendants.[16]

    CONCLUSIONS

    Unattractive defendants are found guilty slightly more often than attractive defendants. However, these results are not significant. Many studies found no difference between attractive and unattractive defendants.

    Men are more influenced by a female victim’s attractiveness in cases of sexual offenses. They are slightly more likely to decide in favour of the unattractive victim.

    MOCK JURY: GENERAL PERCEPTIONS

    Esses and Webster’s found that mock jurors perceived the unattractive defendant as significantly more dangerous.[17]

    In Efran’s mock trial, he found that the jurors were more certain of the unattractive defendant’s guilt. When the attractive defendant was guilty, the jurors were less certain of their decision.[18]

    Researchers found that when the victim was innocent and attractive, less evidence was needed to find the defendant guilty. Conversely, when the victim was unattractive, more evidence was needed to find the defendant guilty. However, when the victim was perceived to have contributed to the crime due to carelessness, attractiveness had no effect.[19]

    In a rape mock jury trial, the attractive victim was more likely to be believed to be a victim of rape than the unattractive victim. The unattractive victim was less believed and even thought to have provoked the rapist.[20]

    DEFEATING THE ATTRACTIVENESS BIAS

    There are several factors that can offset the effects of the attractiveness bias.

    THE SLOW THINKING STUDY [21]

    The purpose of the study was to find out whether the attractiveness bias could be reduced by rational thinking.

    124 female students were given a summary of a murder case. Half of the women were given a clear case of murder and the other were give a case of uncertainty, that is, it was hard to determine whether the defendant was guilty. The other factor that changed was the attractiveness of the defendant. One was unattractive and the other was attractive.

    Results and Key Takeaways

    1. The scenario where the criminal is clearly guilty, the women gave higher sentences to the unattractive criminal (24.71 years), than the attractive criminal (15.11 years). This amounts to a 63.53% increase. [See image below]
       
    2. In the case where the criminal’s guilt is unclear, attractiveness had minimal effect on the sentencing amount. [See image below]

    This study suggests that thinking slowly may help reduce the attractiveness bias. It seems that rapid thinking makes one susceptible to such psychological distortions. Even when the defendant is clearly guilty, slow thinking would be beneficial to reduce excessive sentencing.

    Weakness

    Only female students were tested.

    THE REAL CONSEQUENCES STUDY [22]

    Some researchers are skeptical that real jurors will have the same biases as the studies in simulated juries. The term ‘simulated jury’ is misleading. Studies do not ‘simulate’ a jury in the way we visualise the word. Instead, researchers generally gather students, give them a booklet of information, then get them to answer some questions at the end. Simulated juries miss many of the characteristics found in real court cases.

    This study attempted to prove their skepticism. The researchers attached a real consequence to the answers the students provided. One group was told that their verdict would result in the loss or saving of a staff members job. The other group was given the same scenario but no were told that no consequences would result of their verdict.

    Results and Key Takeaways

    83% of the ‘real consequences’ group voted the teacher guilty. 47% of the ‘no consequences’ group voted the teacher guilty. They repeated the studies a few times with variations and received similar results.

    The ‘real consequences’ group retained more of the case information than the ‘no consequences’ group. However, the interest between groups was equal.

    MORE STUDIES

    Mock jurors that deliberate are less likely to be influenced by the attractiveness bias. Thus, mock jurors that make their decision independently, are more likely to be influenced by the attractiveness bias.[23] However, another study found that deliberation exaggerated the effects of the attractive defendant.[24]

    In one study, guilty defendants that smiled received lesser sentences than guilty defendants that did not smile.[25] Another study showed that defendants who displayed high levels of repentance and remorse received significantly lower sentences by mock jurors.[26]

    A LAWYER’S PHYSICAL ATTRACTIVENESS

    IN COURT

    I was unable to find any studies directly addressing the physical attractiveness of a court advocate.

    However, the late David Ross, a QC from Melbourne Australia, believes the physical attractiveness of the advocate is neither a positive or a negative. He writes:

    Good physique is not a necessity. Advocates are tall, short, fat, thin, good looking, plain. No doubt the good looking advocate has some attraction, but being well-favoured is probably the least of the qualities an advocate needs. An unhappy physique or unusual looks are never a handicap to one who has the necessary attributes.[27]

    It must be noted that his belief was grounded in experience, not empirical research.

    IN A LAW FIRM

    I have found no journal articles on physical attractiveness and men in a law firm. Thus, the focus of this section will be on women.

    Peggy Li examined the current scientific literature on the effects of physical attractiveness upon people’s perceptions.[28] Then, she made inferences on how this would affect women in the legal profession.

    It is important to note that the author’s conclusions are predictions. Her article is not an empirical study itself. Nonetheless, the academic journal article was well researched.

    Key Takeaways

    1. Women that are searching for a job in the legal industry may have greater success if they’re physically attractive.
       
    2. Women in the legal profession that are attractive may have more success than their unattractive peers as they are perceived in a more positive light. This is caused by a blend of many factors. 
       
    3. If a woman dresses ‘sexily’, she may be negatively perceived. Both men and women may perceive her as using her body to ‘get ahead.’

    Weaknesses of the Article

    The journal article itself is not an empirical study. Thus, Peggy Li is making an informed prediction.

    All scientific literature that the author referenced are observations on white women. Women of other races may have different conclusions.

    CAUSATION

    I have been writing thus far as if physical attractiveness is causing the above results, rather than physical attractiveness just being correlated. This is in part misleading as scientific causation has not fully been established, or ever will be.

    There are many explanations of the link between attractiveness and litigation outcomes. Here are a few:

    The relationship of attractiveness to litigation processes may be of four basic types.

    First, it may be that persons who are less attractive commit more serious crimes than those who are more attractive. This view suggests that unattractive people are more inclined toward crime, especially violent crime.

    The second view is that criminal actions elicit differential perceptions of objective attractiveness, so that attractiveness estimates are modified by prior knowledge of the actions of the persons being judged.

    Third, attractiveness and antisocial/criminal behaviors are tightly pleached, probably from an early age. Because their associations are routinely high, it is probable that the direction of effects between attractiveness and such behavior will remain unknown.

    Finally, it may be possible that a third variable affects the relationship of attractiveness and criminal accusations/activities. Socioeconomic status, ethnicity, and developmental advantages (e.g., nutrition, schooling) might be such factors.[29]

    And:

    ...the finding of a significant negative correlation between seriousness of crime and attractiveness could possibly suggest that unattractive persons are more likely to be suspected of criminal activity, and consequently charged with a serious crime, than are their more attractive counterparts. Contrariwise, one could argue that unattractive persons are more likely to engage in criminal activities because their lesser endowment in looks obviates legitimate means of value-access.[30]

    However, the incremental changes of the correlation between attractiveness and sentencing[31] weighs heavily on the probability of a causal link (refer to ‘The Misdemeanour Study’ above).

    The association between socioeconomic status and physical attractiveness is probably ruled-out for the following reasons. Firstly, one study found that the defendant’s clothing was not correlated to their physical attractiveness.[32] However, I hypothesise there would be exceptions in extreme circumstances such as homelessness. Secondly, many studies found no correlation between race and physical attraction, thus ruling out the race, socioeconomic status, and physical attraction association.

    While causation is not known, I place my bet that physical attraction will have noteworthy effects on judicial outcomes.

    * * *

    The General Effects of the Attractiveness Bias

    GENERAL PERCEPTIONS OF ATTRACTIVE PEOPLE

    We seem to perceive attractive people more favourably than unattractive people on many measures.

    We perceive attractive people as: more intelligent[33]; more socially skilled[34]; possessing more socially desirable qualities[35]; more appealing personalities[36]; more likely to generally succeed[37]; more altruistic[38]; and more moral[39]. Also, ‘people are more likely to give help to strangers who are dressed neatly and attractively.’[40]

    The converse is also true, that is, unattractive people are perceived as less intelligent, less socially skilled and so on. Interestingly, the effects are heightened by the ‘contrast bias’. When an attractive person is directly compared to an unattractive person, the attractive person is seen as more attractive and the unattractive person is seen as less attractive.[41]

    When a person comes into to contact with an attractive person, it triggers certain parts of the brain.

    Activity in the medial orbitofrontal cortex ("OFC"), the region of the brain associated with processing positive emotions, stimuli, and reward, increases as a function of both attractiveness and moral goodness ratings.[42]

     
     

    Similarly, activity in the insular cortex, a region of the brain associated with processing negative emotions and pain, increases as a result of unattractiveness and negative goodness ratings.[43]

     [Image is taken from  Systematic Meta-Analysis of Insula Volume in Schizophrenia  (2012) by Alana M. Shepherd, Sandra L. Matheson, Kristin R. Laurens, Vaughan J. Carr &amp; Melissa J. Green]

    [Image is taken from Systematic Meta-Analysis of Insula Volume in Schizophrenia (2012) by Alana M. Shepherd, Sandra L. Matheson, Kristin R. Laurens, Vaughan J. Carr & Melissa J. Green]

    ATTRACTIVENESS AND LIFE OUTCOMES

    Not only are attractive people perceived more positively, they outperform unattractive people on several measures.

    Attractive people outperform unattractive people on ‘occupational success, popularity, dating experience, sexual experience, and physical health’.[44] Studies have even found that attractive people have better mental health, both from subjective experience and on objective psychological measures. Lastly, attractive people tend to have higher career positions and earn more money.[45]

    ATTRACTIVENESS AND CAREER SUCCESS

    There are strong correlations between physical attractiveness and career success for both men and women. The attractiveness bias in the workforce is well and truly present.

    Attractive people are perceived as: more hirable as managers[46] and more competent, however, this effect is stronger for males than for females.[47] Attractive people are hired more often, promoted more often, found more suitable, chosen as a business partner more often, and have better performance evaluations than unattractive people.[48]

    Attractive people are chosen for employment more often even when the unattractive people have equal qualifications.[49] Studies have attempted to lessen this effect by presenting more information about the applicants, such as ‘relevant past work experience, relevant college major, interview transcripts, performance reviews’[50] etc. It’s hoped that this will offset the attraction effects. However, this is not supported. More information about the applicants did not ‘even the playing-field’.[51] It must be noted that this is only relevant when choosing between similar prospects. For example, a company would not hire a person with zero qualifications for a position that requires a Ph.D.

    Professionals were affected by the attractiveness bias as much as university students.[52] The experience of the hiring manager did not lessen the effects. 

    There is a silver-lining here. The effects of the attractiveness bias are decreasing over time. The effects of attractiveness were stronger in studies conducted in the 1970’s and weaker in the studies conducted in the 1990’s. It must be noted, that the effects were clearly there in the 1990’s. Thus, while it’s reducing, it still exists. 

    Women and Physical Attractiveness

    In a meta-analysis, the researchers evaluated all the major studies from 30 years of research related to physical attractiveness and job success. The evidence is clear, the ‘beauty is beastly’ effect is not supported.

    The ‘beauty is beastly’ effect tries to argue that attractive women in stereotypically masculine jobs will be discriminated against because their attractive qualities emphasise their feminine qualities. These feminine qualities are seen not to ‘match’ the stereotypical masculine job. Thus, they believe that the masculine woman or the unattractive woman will be favoured. This is false.

    Attractive women will be privileged, even in stereotypically masculine jobs. The author quotes, ‘thus, our results afford no support for the “beauty-is-beastly” perspective: Physical attractiveness is always an asset for individuals.’[53]

    * * *

    Visual Summary

    The following infographic is a visual summary of this article.

    References

    [1] Natural Observations of the Links Between Attractiveness and Initial Legal Judgments (1991) by A. Chris Downs and Phillip M. Lyons

    [2] Defendant's Attractiveness as a Factor in the Outcome of Criminal Trials: An Observational Study (1980) by John E. Stewart

    [3] Appearance and Punishment: The Attraction-Leniency Effect in the Courtroom (1985) By John E. Stewart

    [4] The Impact of Litigants' Baby-Facedness and Attractiveness on Adjudications in Small Claims Courts (1991) by Leslie A. Zebrowitz and Susan M. McDonald

    [5] The Impact of Litigants' Baby-Facedness and Attractiveness on Adjudications in Small Claims Courts (1991) by Leslie A. Zebrowitz and Susan M. McDonald

    [6] The Impact of Litigants' Baby-Facedness and Attractiveness on Adjudications in Small Claims Courts (1991) by Leslie A. Zebrowitz and Susan M. McDonald

    [7] The Effects of Physical Attractiveness, Race, Socioeconomic Status, and Gender of Defendants and Victims on Judgments of Mock Jurors: A Meta-Analysis (1990) by Ronald Mazzella & Alan Feingold

    [8] Defendants' Characteristics of Attractiveness, Race, And Sex and Sentencing Decisions (1997) by Andrea DeSantis & Wesley A. Kayson

    [9] Is Justice Really Blind? - The Influence of Litigant Physical Attractiveness on Juridical Judgment (1978) by Richard A. Kulka and Joan B. Kessler

    [10] Defendants' Characteristics of Attractiveness, Race, and Sex and Sentencing Decisions (1997) by Andrea Desantts, Wesley A. Kayson

    [11] Beautiful but Dangerous: Effects of Offender Attractiveness and Nature of the Crime on Juridic Judgment (1975) by Harold Sigall & Nancy Ostrove

    [12] Effects of Offenders' Age and Attractiveness on Sentencing by Mock Juries (1979) by Edward D. Smith & Anita Hed

    [13] The Effect of Physical Appearance on the Judgment of Guilt, Interpersonal Attraction, and Severity of Recommended Punishment in a Simulated Jury Task (1974) by Michael G. Efran

    [14] The Effects of Physical Attractiveness, Race, Socioeconomic Status, and Gender of Defendants and Victims on Judgments of Mock Jurors: A Meta-Analysis (1990) by Ronald Mazzella & Alan Feingold

    [15] The Influence of Defendant Race and Victim Physical Attractiveness on Juror Decision-Making in A Sexual Assault Trial (2014) by Evelyn M. Maeder, Susan Yamamoto, & Paula Saliba

    [16] Is Justice Really Blind? - The Influence of Litigant Physical Attractiveness on Juridical Judgment (1978) by Richard A. Kulka and Joan B. Kessler

    [17] Physical Attractiveness, Dangerousness, and the Canadian Criminal Code (2006) by Victoria M. Esses & Christopher D. Webster

    [18] The Effect of Physical Appearance on the Judgment of Guilt, Interpersonal Attraction, and Severity of Recommended Punishment in a Simulated Jury Task (1974) by Michael G. Efran

    [19] Beautiful and Blameless: Effects of Victim Attractiveness and Responsibility on Mock Juror’s Verdicts (1978) by Norbert L. Kerr

    [20] Rape and Physical Attractiveness: Assigning Responsibility to Victims (1977) Clive Seligman, Julie Brickman, & David Koulack.

    [21] What is Beautiful is Innocent: The Effect of Defendant Physical Attractiveness and Strength of Evidence on Juror Decision-Making (2015) by Robert D. Lytle

    [22] Guilty or Not Guilty? A Look at the "Simulated" Jury Paradigm (1977) by David W. Wilson and Edward Donnerstein

    [23] Attractive But Guilty: Deliberation and the Physical Attractiveness Bias (2008) by Mark W. Patry

    [24] The Emergence of Extralegal Bias During Jury Deliberation (1990) by ROBERT J. MacCOUN

    [25] Attributions of Guilt and Punishment as Functions of Physical Attractiveness and Smiling (2005) M.H. Abel & H. Watters

    [26] Communication and justice: Defendant Attributes and Their Effects on the Severity of His Sentence (1974) by Steven K. Jacobson & Charles R. Berger

    [27] Advocacy by David Ross QC

    [28] Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys (2015) by Peggy Li

    [29] Natural Observations of the Links Between Attractiveness and Initial Legal Judgments (1991) by A. Chris Downs & Phillip M. Lyons

    [30] Defendant's Attractiveness as a Factor in the Outcome of Criminal Trials: An Observational Study (1980) by John E. Stewart

    [31] Natural Observations of the Links Between Attractiveness and Initial Legal Judgments (1991) by A. Chris Downs & Phillip M. Lyons

    [32] The Impact of Litigants' Baby-Facedness and Attractiveness on Adjudications in Small Claims Courts (1991) by Leslie A. Zebrowitz and Susan M. McDonald

    [33] The Attractive Executive: Effects of Sex of Business Associates on Attributions of Competence and Social Skills (1985) by Midge Wilson, Jennifer Crocker, Clifford E Brown, & Janet Konat

    [34] The Attractive Executive: Effects of Sex of Business Associates on Attributions of Competence and Social Skills (1985) by Midge Wilson, Jennifer Crocker, Clifford E Brown, & Janet Konat

    [35] The Attractive Executive: Effects of Sex of Business Associates on Attributions of Competence and Social Skills (1985) by Midge Wilson, Jennifer Crocker, Clifford E Brown, & Janet Konat

    [36] Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys (2015) by Peggy Li

    [37] Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys (2015) by Peggy Li

    [38] Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys (2015) by Peggy Li

    [39] Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys (2015) by Peggy Li

    [40] Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys (2015) by Peggy Li

    [41] The Effects of Physical Attractiveness on Job-Related Outcomes: A Meta-Analysis of Experimental Studies (2003) by Megumi Hosoda, Eugene F. Stone-Romero, Gwen Coats

    [42] Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys (2015) by Peggy Li

    [43] Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys (2015) by Peggy Li

    [44] The Effects of Physical Attractiveness on Job-Related Outcomes: A Meta-Analysis of Experimental Studies (2003) by Megumi Hosoda, Eugene F. Stone-Romero, Gwen Coats

    [45] The Impact of Physical Attractiveness on Achievement and Psychological Well-Being (1987) by Debra Umberson & Michael Hughes

    [46] Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys (2015) by Peggy Li

    [47] The Attractive Executive: Effects of Sex of Business Associates on Attributions of Competence and Social Skills (1985) by Midge Wilson, Jennifer Crocker, Clifford E Brown, & Janet Konat

    [48] The Effects of Physical Attractiveness on Job-Related Outcomes: A Meta-Analysis of Experimental Studies (2003) by Megumi Hosoda, Eugene F. Stone-Romero, Gwen Coats

    [49] Sexism and Beautism in Personnel Consultant Decision Making (1977) by Thomas Cash, Barry Gillen, & D. Steven Burns

    [50] The Effects of Physical Attractiveness on Job-Related Outcomes: A Meta-Analysis of Experimental Studies (2003) by Megumi Hosoda, Eugene F. Stone-Romero, Gwen Coats

    [51] The Effects of Physical Attractiveness on Job-Related Outcomes: A Meta-Analysis of Experimental Studies (2003) by Megumi Hosoda, Eugene F. Stone-Romero, Gwen Coats

    [52] The Effects of Physical Attractiveness on Job-Related Outcomes: A Meta-Analysis of Experimental Studies (2003) by Megumi Hosoda, Eugene F. Stone-Romero, Gwen Coats

    [53] The Effects of Physical Attractiveness on Job-Related Outcomes: A Meta-Analysis of Experimental Studies (2003) by Megumi Hosoda, Eugene F. Stone-Romero, Gwen Coats

    Book Summary - The Tools of Argument: How the Best Lawyers Think, Argue, and Win

    The book, The Tools of Argument, contains a plethora of thinking tools that will assist the legal practitioner to construct better arguments. The following book summary presents the most important ideas in a condensed 8-minute read.

    The author, Joel Trachtman, is an International Law professor at the Fletcher School of Law and Diplomacy in Massachusetts, USA.

    Now, let's begin.

    Fundamentals of Legal Thinking: Analysis & Synthesis

    The basic logical form of legal thinking is:

    If X, Y, Z, then A.

    Analysis:

    Separate the components of a crime or claim, named ‘elements’, then analyse each element separately.

    Synthesis:

    After the analysis is complete, observe whether all the conditions are met for a crime or claim to be made. Generally, if any of the elements are missing, then the legal claim will fail. This process is named 'synthesis'.

    Example: ‘...if the elements of the crime of murder include intent, causation, death, and lack of excuse, we analyze each of these components separately and then synthesize the analyses for a complete understanding.’

    Argument Structure:

    In the first paragraph, or section, of your argument, break the crime or claim into elements: analyze the claim. In subsequent paragraphs or chapters, examine each element separately to determine whether it is factually satisfied. Once you are finished, it is easy to “synthesize” or look at all the elements and see whether they comprise the crime or claim in question. This is the concluding paragraph or chapter.

    The Incompleteness of Law

    There are two forms of incompleteness. (1) The meaning of a word and (2) the law cannot anticipate all possible circumstances in the future.

    This can include statutes, case law, and contracts.

    All laws, and all contracts, are inevitably incomplete. They cannot be written in advance specifically to anticipate every possible circumstance. Courts or other decision-making mechanisms may be assigned the job of completing the contract or the legislation ex post. Other times there is no legal or contractual rule to apply - a gap in our structure of rules.

    The Loose Thread Strategy

    Identify a gap in the opponent's argument, attack it, and don’t let go.

    ...more often than not, there may be gaps in the chain of logic or evidence. Once we find a gap, we just need to attack it until the entire argument falls. My late colleague, Keith Highet, one of the United States’ greatest practicing international lawyers, referred to this as the loose thread strategy: pull on it and the fabric of your opponent’s argument unravels. Highet was a bulldog who would clamp the opponent’s loose thread in his teeth and pull viciously and happily.

    3 Logical Fallacies

    1. Ad Hominem

    Ad hominem is the fallacy where one discredits the source rather than discrediting the argument itself.

    Example:

    Argument → 'My expert opinion is that the defendant took inadequate care to prevent the injuries that the plaintiff sustained.'

    Counterargument → 'You are a socialist.'

    Counter-counterargument → 'My political perspective, religion, nationality, or sexual orientation are all irrelevant to my expert opinion, which is based on the application of a special methodology and years of experience.'

    An Exception: Bias

    It is appropriate to impeach an expert witness on the basis not only of the quality of the witness’s expertise and preparation but also on the basis of apparent bias. For example, if the expert witness has appeared many times in similar matters, always on the same side, opposing counsel may point out that this expert witness appears to have a bias and may even have been hired in consideration of the bias.

    2. Affirming the Consequent

    A to B, does not equal, B to A.

    An “if-then” statement has an antecedent (if) and a consequent (then). If the if-then statement is true, every time there is an antecedent, there will be a consequent. But it will not necessarily be true that every time there is a consequent there is also an antecedent - other causes might result in the consequent.

    Example: (i) If she is a lawyer, then she is expert in the law. (ii) She is expert in the law. (iii) Therefore, she is a lawyer.

    You can readily see that expertise in law does not necessarily constitute someone a lawyer. Many politicians, journalists, judges, and scholars become experts in the law without becoming lawyers.

    3. The Red Herring

    A red herring is committed when one uses facts that are not relevant to issue at hand, and yet acts as if they are. It's almost like a form of psychological distraction.

    Example:

    Argument → ‘Facts X, Y, and Z are the basis of my claim against you.’

    Counterargument → ‘In this type of case, X and Y are relevant, but Z is not. And without W, they are insufficient to complete a claim against me.’

    Avoiding Precedent

    1. Distinguish Between the Precedent and Your Case

    Example: The past case is different to this case, therefore the past case is not applicable.

    2. Find Exceptions:

    Find cases that are exceptions to the rule.

    Procedure Arguments

    1. Forum Shopping

    Different courts can result in different outcomes.

    The plaintiff usually gets a first shot at determining where the case will be brought, and sophisticated plaintiffs will choose the court that will apply the law that will result in their victory.

    For example, lawyers know that in an interstate or international case, there is a question as to what is the applicable law: the law of party A’s home (say, Kansas), the law of party B’s home (say, Japan), the law of the place where the transaction occurred (say, France), or something else. They also know that different courts have different approaches to determining which law to apply. Furthermore, different bodies of law may have sharply different approaches to determining responsibility. Depending on which court you are in, one law might apply as opposed to another, and the law that applies could determine who wins.

    2. No Jurisdiction

    Courts are agents of the state, authorized and empowered by the state to decide specified cases and to mete out punishment or remedies as appropriate. All courts are limited in their jurisdiction— in their power to hear and decide cases.

    Why challenge jurisdiction when the next court will do the same job anyway?

    First, if the case can be thrown out of one court, it increases the litigation expenses to the plaintiff significantly - the plaintiff might simply give up. Second, the alternative court might apply a different and more favorable set of legal rules, and a skilled lawyer representing the defendant will ensure that this is so before seeking dismissal in the first court.

    3. Court Bias

    Argue that the court is bias against you, and should not be able to run the case. This can occur in two ways: 1) pressure the opposition to withdraw 2) pressure the judge to recuse herself.

    Example:

    Chevron began in the 1990s by arguing that the U.S. courts were the wrong place to hear [their] case about environmental harms in Lago Agrio, Ecuador.

    Chevron’s motive was to avoid according the plaintiffs certain of the benefits of being in U.S. courts: liberal rules for gathering evidence against the defendant, contingency fees so that poor plaintiffs can afford to engage lawyers, class actions so that many plaintiffs can band together, and, most importantly, large judgments.

    But despite the disadvantages of litigating in Ecuador, the plaintiffs prevailed and won an $18 billion judgment.

    Then, Chevron in effect reversed course, arguing that Ecuador was, as it turned out, a terrible place to litigate, with corrupt and biased judges. 

    4. Reframe the Case

    The person who makes the complaint has an opportunity to frame it in the light most favorable to him. While this does give a great deal of power to the plaintiff, it is available to the defendant to reframe the case, adding other issues to consider, and claim that they constitute exceptions to the rule or defenses to claims of violation of the rule. Or, the defendant might argue that the case is not the type of case that the plaintiff framed at all but a different kind of case.

    Example:

    Argument → ‘Fire retardants are needed to prevent fires.’

    Counterargument → ‘Fire retardants cause cancer and brain damage.’

    Counter-counterargument → ‘Restrictions on the use of fire retardants will disproportionately harm minorities.’

    5. Counterclaim

    While it is definitely true that two wrongs do not make a right, it is possible that my obligation to compensate you for the wrong that I did you can be counterbalanced, and reduced, by your obligation to compensate me for the wrong you did me.

    Factual Arguments

    1. Find Missing Links

    The evidence may become unreliable if your opponent cannot establish that it was gathered properly or preserved properly.

    Was it legal to video tape these events? We have a video of the defendant pulling the trigger, but how do we know the gun was loaded or the videotape was produced at the time the victim was shot? Are we sure there was not another shooter? How do we know the videotape was not subject to tampering later?

    2. The Brandeis Brief

    The Brandeis Brief means applying policy oriented and non-law arguments in a brief.

    More than a century ago, a young lawyer from Boston was confronted with the task of convincing the U.S. Supreme Court that when the U.S. Constitution guarantees all citizens equal protection under the law, equal does not actually mean equal.

    The lawyer needed to convince the court that when the citizens are female, the protection must be greater than for males, at least when it comes to working in a laundry. Indeed, the argument was that “equal protection” means unequal treatment. In order to win his case, the lawyer needed to convince the Court that an Oregon law prohibiting women from working in any “mechanical establishment, or factory, or laundry” more than ten hours during any one day did not violate the rights of women.

    What was the young lawyer to do? If he simply argued to the Court that, in his experience, women were delicate flowers requiring nurture and sunlight - rather than drudgery - then, although he might well have received wise nods of agreement from the nine elderly male justices he sought to convince, he risked the justices concluding that their wives and daughters might find such chauvinism offensive, and to avoid unpleasantness at home, the justices might be inclined to decide the case against his client.

    No, he needed to provide the justices with something other than personally-held beliefs on which the justices could hang their bowler hats when they returned to hearth and home.

    The lawyer, Louis Brandeis, who eight years later would himself become a member of the Supreme Court, assembled all of the extant social science research on the detrimental impact of long work hours on the health of women. As a result of this evidence, the Supreme Court upheld the Oregon law.

    Trustworthiness AS a Long Term Strategy

    Lying = short-term win, for long-term loss.   

    You may win a case by lying, however, this can result in a bad reputation. Overtime, you will become known as untrustworthy and this can negatively affect your future persuasiveness.

    ...an experienced lawyer will never lose sight of the crucial importance of maintaining the judge’s trust in his credibility and that of his witnesses. If a decision-maker concludes that a witness is not to be believed with regard to one matter, then, human nature being what it is, the decision-maker will view the remainder of the witness’s testimony through a lens of heightened skepticism, if not insurmountable disbelief.

    The best attorneys - the cream of the persuasive crop - also recognize that the credibility of the legal advocate is itself crucially important. If a lawyer loses the trust of a decision-maker in one dispute, the lawyer’s ability to persuade that decision-maker in subsequent disputes will be compromised. This is the lesson of the story of “The Boy Who Cried Wolf.”

    Furthermore, decision-makers, be they judges, bosses, or prospective partners, do talk to one another. One of their favorite topics of discussion is the reputation in the community of the legal advocate for telling the truth. Ethical considerations aside, if you hope to be a persuasive advocate for your own interests or the interests of others, lying to win the argument in which you are currently engaged is not worth the price of losing one’s reputation for truthfulness.

    * * *

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