The ability to issue an electronic judicial opinion was introduced to the Polish legal order by an amendment to the Code of Civil Proceedings (herein: CCP) – of 29 August 2014, which has been binding since 27 October 2014. The new way of providing grounds for judicial decisions was created by two articles: Article 328 § 11 and Article 331 § 2 CCP. According to the first of them, if the court’s session is recorded using electronic means, the judicial opinion can be delivered after announcing the verdict, and recorded along with the other elements of proceedings in the courtroom. In that case, the judge is no longer obliged to give brief oral reasons for his or her decision (which would be required if the traditional written motives were to be produced as the “main” opinion). Due to the second provision, if the e-motives have been produced, the parties obtain the judgment along with the transcript of the opinion – which is considered to be legally equal to the delivery of the written justification in the traditional model of giving the judicial opinion.
The concept of e-motives
Judicial opinion may be understood as a document or a speech that reflects the reasoning leading to a judicial decision (e.g. a judgment) – but separate from it. Drafting it is considered to be the most demanding and time-consuming part of the judge’s work, significantly extending the burden resting upon him. While the number of cases to be decided by the court is growing, judges only have a certain amount of time and a fixed range of tools with which to fulfil their duties with respect to giving grounds. In search for a remedy to resolve this situation, the legislator came up with the idea of avoiding the need to write a separate judicial opinion, but rather to substitute that by admitting oral judicial opinions in new shape.
From the first glance, it already appears as if Article 328 § 11 and Article 331 § 2 CCP create a new type of judicial opinion. The most explicit argument supporting this thesis has been made by the lawmaker himself – by indicating explicitly the distinct nature of the judicial opinion compared with the traditional model. Before the amendment of 2014 the Polish legal system recognised two kinds of judicial opinion: written judicial opinion and the speech of the judge on behalf of the whole bench presenting the main (core) reasons for the judgement (referred to as the oral judicial opinion or oral motives). The new solution is neither the first of these, nor the second, and is not even a simple mix of them. Due to the novelties of the design and procedural transmission of this type of motives, they are commonly referred to as an “electronic judicial opinion” (or “e-judicial opinion”) to distinguished them from opinions issued in the traditional way, written on paper.
The form and merits
An electronic judicial opinion is a “full” opinion, intended to contain the entire standpoint of the court in the case. In these terms, it is deemed to be fully equal to the judicial opinion in the classical meaning (i.e. the written statement of a court). The obligation to exhaust the full extent of reasoning concerns, without exception, the grounds presented orally (and recorded) in the courtroom – as opposed to the abridged motives presented at the end of the session and designed to provide a brief summary of the court’s reasoning (in many cases addressed to general public, and hence in many cases further simplified in language and merits).
The introduction of the e-judicial opinion to the Polish legal order is likely to change the technical premises of giving judicial opinions. Judges have to prepare at least a draft judicial opinion before deciding the case. It definitely helps them to think the arguments through and to change the decision (if it has not been announced already) if there have been any mistakes in the reasoning adopted initially. For obvious reasons, it would not be possible – or at least would only be possible to a more limited extent – when judges prepared the final motives after issuing the decision (which is the case for the classical written judicial opinion).
The other issues that have been altered by the introduction of the e-judicial opinion is the set of addressees of the motives produced by a court. Generally, the people who are in the courtroom while the decision is announced orally can obtain a full version of the motives, not only an extract of them (in the form of the abridged oral motives in the classical model of giving the judicial opinion). Moreover, the electronic judicial opinion exists in relation to the broader public as a transcript. As it is not available to everyone, like a typical written judicial opinion, meaning that there is a limited scope of people who can become addresses of it (in comparison to the judicial opinion in a strict sense).
The drafting issues
Electronic judicial opinions have also changed the pragmatics of issuing judicial opinions. Taking into account the practical experience developed so far, these changes are, unfortunately, not entirely promising.
The practice of providing e-judicial opinions (still in the rather initial, liquid phase in the courts’ conduct) has revealed one major drawback of this instrument: the pitfalls of the written transcription of the recorded judge’s speech. In practice – in relation to almost all the possible users – the e-opinion functions exclusively through the transcript. It is the only written document served upon the parties, usually the only type of opinion used by the court of higher instance while reviewing the judgment, and finally it is also the only formal standpoint that may be used by external users (e.g. as a point of reference for other courts, as an object of doctrinal analyses, etc.). What should also be borne in mind, the transcript is issued as an official document with an authority equal to other documents produced by the court in the proceedings.
There are many differences between oral and written forms of statements in language (vocabulary, grammar and colloquial expressions), repeating arguments, omitting some issues from reasoning, some aspects while editing the transcription – without paragraphs, with the reflection of some strange sounds from the recording. It is very hard to follow the text of a transcript or simply to follow the reasons for the decision.
There is also other aspect of the problem – the ability to omit factual findings because of delivering that in the first part of the session of the court. On the other hand, when the electronic judicial opinion includes a factual (“historical”) part, there is a danger of focusing on the factual issues of the case, and not enough on the legal matters.
The question of effectiveness
All of these statements lead to the conclusion that electronic judicial opinions may not be a proper solution to facilitate a judge’s work. In the current shape, its effectiveness in this respect seems rather doubtful. Due to its specific nature, there is a strong need to prepare at least a draft of this kind of opinion. As this kind of judicial opinion is issued in special conditions: orally, in the courtroom (in public), only once, in a stressful situation, it may limit control over the final shape and statements of judicial opinion. For this reason, it is in many instances prepared before the session of the court. Nevertheless, the statement of the court becomes judicial opinion only at the moment of its oral announcement, so any previous preparations do not prevent the possible influence of factors inherent for spoken statements.
Moreover, judicial opinions may, from this perspective, double the judge’s work – the opinion is drafted, prepared, delivered and in many cases also transcribed. The tool intended to ease the process of giving judicial opinions may, in this way, have no considerable result, or even make things worse. At the same time, the function of preparing e‑motives and their transcription may work counter-productively, diminishing rather than supporting its legitimacy, and decreasing the prestige of the judiciary as a whole. Due to the unavoidable peculiarities of the spoken language, the recording, as well as the transcript may contain plenty of colloquial expressions, mistakes, retardations, etc. The final result in many instances may be (and indeed is in practice) far from the quality that might be expected from official statements of judiciary – and even far from the proper intelligibility for the receivers not involved in the proceedings.
It is still too early to assess the solution unambiguously. This kind of judicial opinion is fresh and may evolve. Many of the disadvantages can also be improved by the courts themselves, through properly shaping the e-motives, as well as the practice of drafting them. Last but not least, there is a strong need to vest courts with the possibility of editing the transcript (the only “product” of an e-judicial opinion that takes form of a written document), in order to avoid the aforementioned shortcomings of oral statements being reflected in a hard copy document.
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