Tracks of my tears – part 2

Sorry if this is teaching some of you to suck eggs, but yesterday’s post seems to have prompted a lot of ‘How do you…?’ and a lot of ‘I didn’t know it did that’ around track changes, so I thought I’d seize the moment and show you. Switch off now if you know it all already. There are more interesting things to read on a Sunday morning.

Here goes. My screenshots are on word on a mac. If you are using a PC or an old version of word things might look different but it should be basically the same. Don’t ask me about PCs!

Open up a word doc. Look for the REVIEW tab on the top menu. That’s where all the track change settings live. In the screenshots below I’ve pasted my original post in word and made some minor edits to them like adding in a line that says ‘adding a para’ or the words ‘new numbered para’.

If you click on review and then click on tracking you will get some options for tracking, which can themselves be clicked on (FIG 1).

FIG 1

If you are on a mac it might be easier to use the split screen function (mac calls it ’tile window’) to scroll down this post and check it out in word as you go.

Split screen

To use split screen by the way, press and hold the green button in the top left of your browser window (or your word window, depending on what you want to show in your split screen) and select ‘tile screen to left‘ – it will move your window to the left and on the right will show you other things you have open which you can place on the right hand side of your split screen. I use this so I can see my xx notes on one side and my running notes of a hearing on the other. No idea if / how you can do this on a PC, but you can probably just resize your individual windows and line them up next to one another. See FIG 2.

FIG 2

How to choose how much markup (tracking) you see

FIG 3

You can choose simple markup (as at FIG 3), all markup (full red squiggles experience), no markup (as edited) or original (without changes). If change tracking gives you a migraine, choose simple markup. You can see where changes have been made without all those red marks everywhere confusing your brain. You can right click the little red lines in the border to see what the changes are. I suggest you choose ‘all markup’ before sending a revised draft to an opponent, so they can see what you’ve done easily and don’t inadvertently miss any. They can always change to simple mark-up if they don’t like it (and now you can tell them how, like an IT Guru).

 

 

 

Here is what it looks like if you select no markup. You can see the edits but they aren’t highlighted so you’ll need to take care not to miss any (FIG 4).

FIG 4

Inline or balloon?

You can also choose where you see the markup on your page – in line with the text or to one side (in a balloon). Change this setting by clicking the dropdown : mark up options > balloons and selecting show all revisions in-line or show revisions in balloons. Here is what inline looks like (FIG 5) – my renumbering caused by me adding a line is showing up within the paragraphs.

FIG 5

 

 

Here is what the same edits look like if you select the balloon option (FIG 6).

FIG 6

 

It is also possible to change the colours that your tracking shows up in by selecting markup options > preferences. I didn’t know this till today. I’m considering changing to purple. See FIG 7.

FIG 7

What else?

Oh yes, accepting changes

Accepting or rejecting changes

You can review a document and, if you are happy with all of it just select ‘accept all changes and stop tracking’. Hey presto – you’re done! OR, if you want to go through one by one there are various ways of jumping from one edit to another, accepting or rejecting individually.

FIG 8

Firstly, accept and move to next – shown here (FIG 8). Once you’ve accepted one, clicking the green accept tick will automatically accept the change you are on and take you straight to the next so you can easily keep clicking and moving forward until you get to the change you need to reject or make further edits to. This is what I use.

 

 

 

Alternatively you can use the previous and next change buttons and right click each edited bit of text to accept or change (FIG 9).

FIG 9

 

 

 

 

 

 

 

 

FIG 10

A different way of doing it is to use the little forward and back icons shown in Fig 10, which show you each edit in highlighted blue – like when you select text with your mouse – as you click through.

Finally, you can use the review function. This is useful if you are editing a longer document with multiple editors and lots of comments in it, but probably not necessary for drafting orders. See Fig 11.

FIG 11

 

 

 

 

Right, I think that’s enough of the dull but useful for a Sunday morning. I’m off out for a run – hoping that I don’t fall over. Have been back from boating holiday for 48 hours and still have the swaying sensation of being on a boat, which is…interesting… Happy tracking!

 

P.S. In the course of writing this post I used the ‘markup’ function for the first time. I think it’s a mac thing – but it’s v useful. If you go to file explorer and select gallery view you can also use ‘markup’ to draw neat little circles and arrows on a screenshot to show people where to look. And of course to screenshot its : ctrl+cmd+4 (on apple). Fig 12.

FIG 12

 

 

P.P.S. Sorry about the woeful formatting on this blog post – it’s not irony, it’s just that wordpress is notoriously bad at layout when you are inserting multiple images. I know from bitter experience that however I lay it out they won’t show where I expect them to and there will be lots of unexplained blank gaps. Hence the use of ‘FIG 1’ etc rather than ‘below’ or ‘above’, as the relevant image will inevitably be above if I say below. Sorry if it sets off your OCD. That’s life…

The tracks of my tears…

It is a truth universally acknowledged that in every case someone or other will get wiggy about the use of track changing. Or, failing that, someone will get wiggy about the failure of someone else to use it.

Me, I’m in the track changes camp. I am saddened to learn from twitter that I am on the wrong side of a wide river, and judging from recent twitter discussions on the topic it is a river that flows with irritation and disgust.

So I thought that the best thing to do was to stir the pot a little by telling you all why my way is the best and the rest of you are all wrong. Frankly, I feel I’ve little to lose since twitter is suggesting that I am the WORST kind of opponent and you all hate me anyway.

So, here is my approach to amending draft orders. It’s been nice knowing you… Don’t @ me.

  1. My name is Lucy and I am a track-change-aholic. Yes, the track change function in word is imperfect, and can create a sea of red marks if you aren’t careful – but it is the only reliable way of making changes that are visible to those who need to see them – and it is a standard way of doing things that is transparent to all. The red marks might be annoying but there is nothing more annoying or discourteous than a covert amendment to an order. Occasionally, if I know I am on a case with someone who can’t or won’t cope with track changing I might be persuaded to manually mark all edits in a colour or a highlight, but that is both time consuming and you risk inadvertently forgetting to mark something, introducing unseen changes that someone later gets a cob on over. Although, on a more grouchy day I might instead strongly suggest that you ditch pages on your ipad and use word like the rest of us, because that is the sole reason why you ‘can’t see track changes’. Those people who respond to your email attaching a nicely track changed email asking you to spell out AGAIN what those changes are because their device is not set up correctly (or because of PEBCAK) are BAD. BAD. PEOPLE.
  2. The only time I might not use track changing is if I am accessing your draft from my phone or in a setting where I can’t edit directly, and then I might just list the edits I need in a list in an email – but only if the changes are simple. I’m not going to give you a list of fifty edits and make you add them in yourself of course – that would be mucho annoying. I also might avoid track changing if there are different versions floating around or if others are pinging around lists of edits and there is a risk of it all getting more confused…So I’m not a track change fanatic, but it is generally kinder and more courteous to make the changes you want in a reversible and visible way.
  3. Yes, I will edit your draft order – if you have a typo, if your sentence doesn’t make sense, if it doesn’t correctly record my position, or some other event or fact, if it leaves out something that should have been in or if it adds in something we hadn’t agreed. Those who get offended at this can eat my shorts. That’s the job. We all have that responsibility to ensure the order is accurate and protects our client’s interests. To the people who think that as applicant it’s ‘their order’ and they are responsible – well no, it’s not. There is a collective responsibility and if an order goes in that is word salad or inaccurate it reflects badly on us all. If there is a bit that is not agreed it’s your responsibility to alert the judge. And seriously, there is no shame in it – we are all under huge pressure to draft at speed. We all get things a bit wonky. So what? That’s the beauty of collective responsibility. I’m not going to let you send in a disaster zone of a draft and you wouldn’t let me submit one either, would you…Would you?
  4. No, I won’t be intentionally messing with your formatting – unless the numbering has gone awry (or I’m trying to correct a stupid formatting glitch that happens spontaneously whenever you breath near a document derived from a judicial issue template, or maybe if a cross reference doesn’t make sense. When tracking is on word will show a load of format changes that are just artefacts of any new paragraph or return action, rather than some deliberate passive aggressive tidying. Don’t get your wig on because of these – they aren’t a subliminal insult about your font choice or your competence. It’s just word being word. Just accept the changes and move on with your life.
  5. And when I’m drafting? Well firstly, I won’t be going all primadonna on you if you correct my mistakes or add in things I missed out. I’m not precious. Thanks for sharing the collective responsibility to get it right. 🙂 Frankly, I don’t even care if you change my calibri back to TNR, or fix the sodding wrong numbering introduced by the stupid glitchy templates – crack on if it helps your OCD. But don’t mess with my CORRECT AND INTRICATELY STRUCTURED nested sub paragraphs in the child arrangements order bit. Those are a work of art alright?
  6. Also, no, I won’t be waiting for an indeterminate period before e-filing. I will tell you when I plan to e-file (hopefully a reasonable balance between needing to get it done asap and real life) and if I haven’t heard back by the deadline, tough. If it’s a crazy deadline just say so. Also, that includes the ridiculous approach some people take to agreeing every line of every iteration of a draft case management order with the lay client after the hearing – just don’t be that person. The order is the order, you should have your client’s instructions on this and they don’t need to ‘approve’ your drafting or checking if the order reflects the judge’s intention. Don’t make me rely on rule 29.11(3)!!! If we’re stuck I’ll list what we’re stuck on and invite the judge to sort it. I’ll let people know that is the plan before I do so, so that their comments can be incorporated in an even handed way.
  7. However, I will be silently seething if you haven’t bothered to reply or read the draft and then 20 seconds after the judge has approved the order and sent it to the court office you email to say something is wrong with it. But I’m not gonna have a pop at you about it about it because in truth, we’ve all been there.
  8. Finally, PLEASE don’t slip in things that weren’t raised in the hearing or discussed at all at the drafting stage when the client and judge have gone. If I have instructions I will happily agree a minor addition as long as its flagged with the judge – but don’t just slip in something you know hasn’t been raised and I haven’t asked my client about. As frustrating as it may be I can’t just agree something on the basis that my client would probably agree it if I had asked them.
  9. Oh and finally, finally please don’t be correcting my grammar. Providing its not street slang and it is coherent we’re good to go.
  10. And finally finally, regardless of who is drafting, I won’t be getting in a massive long tortured squabble / wrangle with you about the precise wording of the order, by means of interminable email ping pong, if I can avoid it. If we don’t agree, let’s just agree to disagree, highlight or list the things we’re stuck on and ask the judge to sort it. Life is too short. The fact that one person has the unenviable task of preparing a draft, coordinating edits and e-filing it doesn’t mean that person gets to unilaterally dictate what goes in it. It also doesn’t mean you can try and bully your oppo into agreeing something they don’t or can’t agree by just insisting on your version. If it isn’t agreed it just isn’t. That’s what the judge is for – ultimately it’s their order.

Happy drafting campers. See y’all in September. Remember, drafting is not a competition or an exercise in trying to annoy or take offence. It’s just a bit of a pain in the behind that we all have to endure, and we should all try and make it as smooth and painless as possible so we can wrap things up and move on. Virtual hugs, colleagues. Promise I’ll write about something serious next time…

That Homer moment…

Just like Homer Simpson, we’ve all had that moment where we have let slip what we really think or someone has heard something that we never intended them to hear. Unlike Homer, most of us can distinguish between our own internal monologue and audible speech, but we do all sometimes slip up, sometimes with consequences far more serious than an episode of The Simpsons.

https://www.youtube.com/watch?v=F69DQupMiZM

(the above is a clip of the Homer moment that I’m thinking of, but my embed function is a bit glitchy so you may need to click and view it on the youtube site to watch).

The judgment of the Court of Appeal last week following a case in which the trial judge made comments about the mother during a break in her evidence, that unbeknownst to her were audible to participants via the video link is a pretty awful example of one such mistake. It will understandably evoke strong feelings and criticism. (You can read the judgment here : C (A Child) [2020] EWCA Civ 987 (24 July 2020)).

From a technological point of view this sort of mistake is an easy one to make, regardless of its grave consequences in this instance (the trial has had to abandoned 3 weeks in as the case now needs a fresh judge as the comments gave rise to an appearance of bias, and the child the case is about will inevitably suffer significant delay in decision making as a result – perhaps delay in reunification with a parent, perhaps delay in being placed with an adoptive family – either way, not good). In my own direct experience since remote working became the norm as a result of covid I can think of a number of similar errors (a guardian saying ‘oh shit’ loudly when her wifi was intermittently not working – which unfortunately was working at the moment she uttered the expletive, a colleague muttering the F word thinking he was muted but being heard by the judge, a party’s legal representative describing her client during a break as ‘not very bright’, when said client was still on the link, and advocate starting to take her client’s instructions during a break without muting herself). The frequency of these mistakes will reduce with familiarity and practice (and no doubt as a result of reading this judgment), but their consequences have potential to be significant, and to have profound effects on the confidence a party has in their lawyer, the judge or the process as a whole.

But in some ways these are not new issues at all. I’ve written before about the dubious practice of advocates holding audible discussions in public waiting areas (sometimes unavoidable, sometimes just careless), about the impression to the lay parties that is given when advocates huddle, chuckling at some unheard in-joke or engage in banter in the moments between the active parts of the hearing. And we’ve all had at least a near miss with the ‘reply all’ function on email. We were all quite capable of thoughtlessness, insensitivity or causing inadvertent hurt before lockdown happened. And sometimes, not often, a judge will openly say something pejorative about a party in a moment of frustration whilst the hearing is ongoing (and in such cases sometimes the decision is overturned on grounds of actual or apparent bias or a recusal application succeeds).

I want to write though about what this unfortunate overhearing of judicial comment does and does not signify. Because whilst we can all agree that the fact this happened is pretty awful for everyone concerned, and whilst I guess the content of what Mrs Justice Judd said will be shocking to non-lawyers, I am not sure it will be as shocking for lawyers or judges to hear – or at least it won’t be understood in quite the same way. And I thought it might help to explain why.

In his book The Modern Judge, Sir Mark Hedley (retired High Court Judge (Family Division), says

Our system…is so constructed that fallible judges hear and consider evidence often given by very fallible witnesses. We should not be surprised that getting to the truth is easier said than done…

The case is over, the witnesses have all been heard, the documents read and counsel listened to; All now eagerly await the coming judgement. Young barristers are often disappointed to discover that what is troubling the judge is not there learned submissions on the law, but the dispute over what actually happened. it is at this point that the criminal judge breathes a sigh of relief and passes the baton onto the jury. … In all other cases, however, the judge must decide the facts. How, then, do they go about it?…

Our tradition puts a significant emphasis on seeing and hearing the witnesses, thereby acknowledging that in decision-making there is a real impressionistic and intuitive element. I have certainly found that to be so, and it is not always easy for the judge to explain why one witness has been accepted rather than another, other than to say that, after reflection, the evidence of one is preferred to that of the other dash an explanation that the appellate courts have made clear is acceptable.

Later he says :

It is also the case that, whoever might know the actual truth of a particular fact, it will not be the judge. The combination of those factors – the need for decision, the fallibility of the process and the elusiveness of the truth – means that the whole process is very seriously and inevitably open to error: social justice is human, but would any society want it otherwise and, indeed, what alternative might there be? …

Trust is essential, but it must be deserved, too. There is a requirement on judges not only to act with integrity (and to be beyond corruption), but with a real understanding of the needs and aspirations of the society they serve. I go further. I do not think that the powers we have been discussing can be effectively exercised without an understanding of that society and a genuine empathy with humanity, even when it goes horribly wrong. The recluse and the cynic have no place on the bench. A humane understanding of people, a deep sympathy with human fallibility, and a desire for a just and ordered society must be indispensable features of the judiciary. It is the combination of humility in our approach to a case and confidence in deciding it that should be the hallmark of the judge. Only so can judges deserve, enjoy, and retain the trust of the society among whom we are authorised to exercise these extensive and remarkable discretionary powers.

Both Hedley J and Judd J are known for their kindness and humanity. I have no doubt but that Judd J will have been mortified upon finding out what had happened, which is why she was the one who raised the question of recusal, albeit that she later concluded having heard the request of some parties for her to continue that she should not recuse herself – until the Court of Appeal intervened.

On twitter when the judgment came out one person said, not unreasonably :

Judges – I thought, perhaps naively – are trained to actively work against those natural tendencies to decide one way or the other before the conclusion of the case. I don’t imagine it’s at all easy, but I thought that was the actual point of the job.

https://twitter.com/louisetickle/status/1286928266855690240?s=20

 

Of course they are trained in fair process and evaluation of evidence – although ‘judgecraft’ is an emerging discipline. But it would be a mistake to think that a judge’s brain works fundamentally any different than the rest of us, however clever they are. Judges are not like some set of electronic weighing scales where the screen is blank and the circuits inactive whilst the cradle is loaded with assorted facts – nothing happening until the load is complete and someone presses the power button. The judicial brain is processing information continuously throughout a trial, absorbing, calculating, recalculating, adjusting – because it is a human brain.

So. A judge IS trained to avoid reaching a firm conclusion before ALL the evidence has been read and heard and before it has been properly analysed and weighed. But that doesn’t mean that the judge has no impression of the evidence before the end of the case – a judge has to be very cautious about expressing those impressions by speech or other means during a trial, lest that gives an impression of bias or prejudging, and because in any event the impression at moment A may be quite overturned by subsequent evidence or an overview of the weight of the evidence at the end of the case – and thus may not be is in the judges’ mind at point B, and may be different again at the point of judgment.

Judges are trained hold their impressions in abeyance until all the evidence is in and they can reach a reasoned and balanced conclusion. That doesn’t – and couldn’t – mean they don’t form impressions, provisional views along the way. But judges don’t generally express those en route because those views may change and evolve – and it’s an important part of the trial process that they should do so where the evidence points in a different direction. A fair judicial process is one of continual evaluation of evidence, adjusting over the course of a trial.

Judges are specifically cautioned against delivering a decision before they have fully considered their reasons – precisely because a judge can be clear in her mind that she is going to do X, but the process of analysing and setting out the evidence and applying the law can reveal that X was in fact the wrong answer – and thus the decision will be Y. Thus the judge will evaluate how much weight to attach to perhaps a strong subjective impression of a witness as against some more objective evidence – and the conclusion may not match the initial impression.

So, whilst Judd J’s overheard comments are rightly a recusal matter – because they were overheard and because people cannot be expected to put out of their minds what was said – the fact that she had formed some impressions by week three of the trial is not in itself surprising or unusual.

There are times when, to the experienced eye of lawyers at least, it is possible to discern which way the judicial wind is blowing – or at any rate to think one can predict from the judicial visage whether the wind is favourable or not. But such guesswork is often a subtle combination of prior knowledge of the individual judge and the lawyer’s ability to read the weight of the evidence, as it is to interpret the reactions, facial tics or soft behaviour of the judge as the individual case progresses. And in any event it is often proved wrong when judgment is delivered.

It is worth remembering also that there are times when, a judge will make a careful intervention to explore a particular point or to tentatively express a provisional view in order to ensure that all bases are covered or to help lawyers focus on the points which are likely to be useful to the court – to focus the evidence and questions on or away from a particular point and to avoid wasting time on points the judge has already understood. Such indications will always be carefully dressed with phrases such as ‘Of course I haven’t formed any concluded view on x but I’m not sure that this line of questioning is going to assist me’ or to a witness ‘Now Mrs Y I haven’t made any decisions at this stage but you told me xxx. Can you help me understand that?’

Those interventions are a sign of an active and engaged judicial brain, constantly chuntering away processes the inflow of information and trying to ensure all relevant questions are answered and irrelevant material is avoided – they are essential to case management and the trial process – and they are often a way of ensuring that a party is given a fair opportunity to address a concern that is forming in the judge’s mind before they reach a concluded view. However good a judge’s in-court poker face may be (and some are better than others), off the cuff expressions of frustration or doubt in the private of a judges’ chambers are in reality the flip side of that very necessary process, however unfortunate and upsetting their accidental broadcast may be. Even if not all judges express their thought processes verbally mid trial, those thought processes will be going on silently inside the judicial brain box, and the judge’s view of a particular witness or a parties case will ebb and flow.

Lawyers know about this process of ebb and flow too – a parent lawyer’s case is never so rosy looking as at the end of the Local Authority’s evidence, and it often takes a nosedive about five minutes after the client gets in the witness box. What looks like a strong case can crumble in seconds and the wind can turn chill very quickly. Lawyers too are constantly re-evaluating their prospects of success, re-evaluating their trial tactics and the emphasis they will take in questioning and submissions – the process is a mirror of that being undertaken by the judge. Neither lawyer nor judge can treat a case as static – a trial happens in real time, because human beings are not predictable and you never know what a witness will say or do. If live evidence did not inform the decision, what would be the point of a trial at all?

So, whilst the Court of Appeal in the specific case obviously had to conclude, in fairness to the family concerned, that a fresh judge was needed, we should perhaps in fairness acknowledge that the overheard words were likely to be a snapshot and an impression rather than a conclusion, however much they may have been felt as prejudicial and as if the judge had made her mind up. None of us can assess whether or not there was any justification in the judge’s thoughts and feelings at that moment, nor can we run the counter-factual to know if she would have softened her view further down the line. That is a futile exercise to an outsider, and my remarks are not really about the specific case as they are about the broader judicial exercise that this fits within.

I for one have no objection when a judge offers some carefully worded assistance to lawyers and parties about what issues are troubling them, which parts of the evidence they are struggling to understand or accept, and which matters they will need further help on – as long as it is made clear that the judge’s mind remains open to persuasion or change as further evidence and submissions are received. Inscrutable, poker faced judges who never intervene or give any clues are difficult tribunals to appear before – you don’t know where you are, and the advocate is never sure whether or not she is wasting her breath on a particular topic (whether because the judge has already got the point or is simply not going to take it), and is always worried she may be neglecting to cover some point that the judge needs help with. It makes the crafting of submissions acutely difficult, and can make for some unexpected results at the end of the day. It can make it difficult to manage expectations.

There we have it, my ponderings on the judicial process, prompted by Judd J’s massive clanger. I hope that for those not used to court process it might explain a little bit about what (I think) is going on behind the judge’s eyes as the trial progresses. And perhaps we might try to give all concerned the benefit of the open mindedness we also expect from our judges.