Fundamental Misconceptions About How Judges Make Decisions

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This lecture addresses the fundamental misconceptions about how decisions are made in our judicial system.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome to YouCounsel.

Many people who do not have a lot of experience in our judicial system (in our court system) have some fundamental misconceptions / misunderstandings, about how judges decide on different cases.  In those misunderstandings what happens is that they end up losing their case, even though they may have good merit—they may have a good case but because of their basic misunderstanding of how judges decide, they at times end up losing their case.  In this lecture I want to explain some of these fundamental misconceptions and then explain how judges make decisions in our court system.

Before we do that I want you to know that this lecture is not legal advice.  If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

We’ll talk about these fundamental misconceptions and then I will explain to you, how the actual decision-making is done in our courts. Now, with respect to fundamental misconceptions, I am going to give you some of the items that I believe are fundamental.  I have defined it and labeled them in certain ways.  

Number 1: This is called the character reference. Now character reference is where a litigant basically says to the court I’m a good person / I’m an honest person, I’ve never lied, I’m a religious person, I believe in God; whatever, anything that talks to their character.  On the basis of that character, they want the judge to rule in their favor. The argument, essentially, is that I am a good person, I never lie, I am an honest person, therefore you should rule in my favor.  It is very important to understand that character references are 99 percent of the time irrelevant.  The courts do not take that into consideration unless character is one of the issues in that specific case. 

For example, if you are in a breach of contract case – whether you are a good person or not, or whether you are an honest person or not, that people like you is irrelevant.  The question for the court is whether you breached that specific contract in which you are here.  Your character reference and I’ve seen a lot of people even my clients, try to argue this and that, because I’m a good person the judge should believe me, that is not how it works and that is one of the fundamental misconceptions people have about how judges decide.

Number 2: Reference to personal circumstances: For example, if the case against you is that you had a credit card and you took money and paid for certain items and now you are not paying the credit card company which has sued you—making reference to your personal circumstances is not going to help you.  For example, if you come to the court and say I am poor, I don’t have enough money or I have lost my job or I am a single father or single mother or I have little kids and therefore, you should get me off the hook for this payment on this unpaid credit card—that is not going to help you.  Personal circumstances are irrelevant in the decision-making process.  Unless, of course, personal circumstances is one of the key issues in the case, but they are very rare.  A good example that I gave you, was about the unpaid loan kind of stuff, personal circumstances are not what is going to make a judge’s mind about ruling in your favor or against you.

Number 3: People believe that since all judges are honest people, somehow they are going to divine the injustice behind it or behind their situation.  Regardless of the fact that they may not have strong evidence, regardless of the fact that they may not have presented their case in the best light and with the best evidence, somehow the judge is going to see through all of the facts and figure out what is happening behind the scene.  That is not the judge’s role.  That is not what judges do. Judges are not seers.  They are not clairvoyant.  It is not their job to figure out what is happening behind the scene in the absence of evidence. They have to figure out the truth of the matter based on the evidence. They’re not going to discover some reality that exists outside of the evidence that is presented to the judges. 

Number 4: Relating to this point is that somehow people believe that because I’m a good person and because of my personal circumstances and because judges can see through somehow, the judge will become my advocate. The judge is going to come down from the pulpit and help me in succeeding with my case because of all these things, regardless of the fact that my case and also the way it has been presented, i.e., the evidence that has been presented is not helpful to me. That is not what the judges do. The most that I have seen in my experience is that the judge will make a comment to a party saying that: “Mr. So and so / Miss So and so, I suggest that you should seek some professional help, with respect to this case”.

That could mean one of 2 things. One is that your case is terrible. If you continue to proceed in fighting with this case and then proceeding to trial, I won’t have any other chance, but torule against your favor. Why don’t you go talk to a professional and understand how the system works and understand your exposure so that you can prevent that from happening.  Or the judge may believe, that this seems like a better case, there may be some merits to do it. It sounds good but the way you are presenting it, it’s not going to help you. Go find some professional help and try to understand how we decide our cases so that you can present your case properly and that does not mean “go hire a lawyer”, but at least get an understanding, a professional understanding of the system, on how to present your evidence and how to present your case so that you allow the judge to rule in your favor.

 Number 5: Finally, the fifth circumstance is what I call, the David vs. Goliath circumstances. The underlying argument here is that because I am David, therefore, you should rule in my favor. I am David, I am the little guy, I’m fighting against Goliath, this big bad corporation or big bad institution or big bad person or whatever it is, but because I am David, somehow you need to help me out here. That is not what judges do.  Judges do not treat David and Goliath differently. In the eyes of the Judge, David and Goliath have the same values, same respect and same significance. If David has better evidence, David is going to succeed, but if Goliath has better evidence Goliath is going to succeed. It is not a situation where the judges are going to come down from their pulpit and help David because of the smaller size or the smaller resources of David as opposed to Goliath. Ok, so we talked about the fundamental misconceptions.

  Let’s talk about how the actual-decision making works:

1) First point that I want to explain is, that it is important to understand our judicial system is based on adversarial process. The opposite of that is the inquisitorial process in adversarial process, the fundamental concept is that both sides have their own lawyers or own legal professionals or  own case. They are going to present their case to the judge, pursuing their own interest.  When all parties are pursuing their own interests, presenting their best evidence, to get what they want from the court, the truth is going to emerge from that fight between the adversaries. The truth, is going to emerge from that exercise when each party is trying to present their best case, in the best possible manner to the judge.  Once the truth emerges, obviously, the judge  figures that out and then judge rules on that and in the favor of the party that has more merit,.

2) Now, inquisitorial process is different. In the inquisitorial process there is no adversary or adversaries. In that case it’s essentially one person or one body that is tasked to find the truth. Their goal is the search of the truth. For example, in our Canadian system, we have these commissions of inquiry that are made. They are created by the government, oftentimes, e.g.,  Gomery Inquiry or Truth and Reconciliation Commission or the Walkerton Inquiry.  These inquiries follow the inquisitorial process, usually run by a retired judge or someone of that caliber. Their goal is to follow all the evidence. They go where the evidence leads them and then their end game is to find out what happened.Their end game is the truth.  They are not resolving a dispute.  What government does with the final fact finding is is up to the government. The goal of that commission, the goal of that inquiry, is to find the truth.

Adversarial process is not the same. An adversarial process is when 2 parties or 3 parties or even multiple parties are fighting and presenting their case and we’re hoping that the truth will emerge. Now in many cases a truth will emerge in an adversarial process, but in some cases it won’t. So there are advantages and disadvantages of adversarial processes. I’m not going to discuss that today. The point here is that in an adversarial process one of the challenges of the process is that one party may have a lot of resources—financial , they may have competent lawyers, high caliber lawyers, or even a team of lawyers and the other side does not have enough resources. They do not have enough competence or the capability to present their case, in the best light. The challenge in that situation, is that it is possible—not always—but it is possible that the weaker side may not be able to present its case in the best light and therefore  their truth does not emerge the way it ought to have been done, if both parties had  equal fighting capability.  

That is one of the weaknesses of the adversarial process, but that is the process. It is important to understand that, whether you like it or not, that is the process and that is how courts function. In the adversarial system, evidence is the king. I cannot emphasize this enough. Judges make decisions on the evidence that is presented to them. If your uncle who lives in the Bahamas  and you tell the court that my uncle who lives in Bahamas, who is sick and cannot come to the court, but he knows the truth,.he saw the specific instance that you’re presenting to the court and therefore you believe that you should be believed.  The court is not going to rule in your favor because the evidence of that uncle who is sitting in the Bahamas is not before the court. The court is not going to divine some evidence that may have existed. That is not the role of the court. The court is going to make its decision on the basis of evidence.  May the best evidence win.. Therefore, if you are not presenting evidence to the court and you just believe in your heart that unfairness was done to you, that is not sufficient for the court to rule in your favor.

Finally, on this point, I wanted to explain that justice is not the prime goal of the judicial system and this I don’t mean to be crass! I don’t mean to minimize the value of our prejudicial system, but it is a point that it is important for the general public to understand.  This is not a new thing that I’m posting. Legal scholars know about it, academics know about it, judges and lawyers know about it also. Everybody who’s in the judicial system, knows that justice is one of the goals; an important goal, but it’s not the prime goal because the role of the court is resolution of the disputes that is before it.  on the basis of evidence that is presented.  That’s what it is.  In that process sometimes, not a lot of times  but, sometimes the result may not be just.  That is the best system we have and we need to recognize that—that  the role of the court is to resolve disputes on the basis of the evidence that has been presented.

That’s the crux of how the decisions are made. I am really hopeful that if you are a self-represented litigant or you are a person, who has not had a lot of experience with courts, to really understand that this is how the courts function. This is how the judges make their decisions—so that you can present your case on the basis of the evidence you have and present it in a way that you are successful only on the merits of your case.

Thank-you for watching.

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