I still remember the long nights of studying for the exam in legal theory during my first year at the Faculty of Law. The book I was reading was intended for someone who just started his law studies – long, complicated, and full of barely understandable words. It took me five more years to fully appreciate all the knowledge it contains, and today it holds a place of honour in my small but growing legal library. One of the chapters I had the most difficulties to understand explained how judgements should be written. Six years after first reading all those abstract rules, I found myself working at a first instance court as a judicial trainee.
Firstly, allow me to explain who is a judicial trainee. In Slovenia, a large part of students who graduate from the three law faculties with high grades (GPA), goes to work at a court directly after graduating. There they take part in a program called “judicial traineeship”, which is similar to the Austrian Gerichtsjahr, but lasts twice as long—two years. The traineeship is meant to teach judicial trainees the art and science of writing a sound judgement and verse them in legal logic, both with the aim of preparing them for the State examination in law. Some decades ago, many judicial trainees became court officials after passing this exam, as the prospects of becoming a judge were excellent. However, today the majority of former trainees, after passing the state examination, go on to work for private law firms and companies.
When a judicial trainee first arrives at a first instance court, it becomes clear that the judicial traineeship is not a job in a classical sense – where the main target of the employee should be results. It is instead rather an extension of university, a two-year-long course where the judicial trainee learns how to implement the knowledge gathered at university and explores the ins and outs of the functioning of the Slovenian judiciary. This has its advantages and disadvantages. An advantage is that a judicial trainee can invest energy in fields they find interesting and prepare for the legal state examination at their own speed. A disadvantage is that less self-disciplined and proactive judicial trainees can see the two years pass by without actually learning very much, which is, of course, a waste of time.
An especially important attribute of a judicial trainee should be proactiveness in the sense, that they decide early in the traineeship what and how they want to learn and then form the traineeship according to that. This is especially important as the trainee can choose for themselves– to a certain extend – at which departments of the court (and even outside institutions such as prosecutors’ offices or faculties) they will spend a part of the judicial traineeship. This gives ample opportunities for specialization in areas that the judicial trainee finds interesting (or that will make them more competitive in the job market). However, if the judicial trainee remains passive and does not voice their wishes to the leadership of the court, they will be allocated to a pre-set department.
After a short introduction to legal writing, which in my case had the form of writing criminal judgements that for reasons stated in the Slovenian Criminal Procedure Code, do not require a reasoning, the judicial trainee is introduced to writing full judgements in ongoing and already decided cases. There, the difference between first instance criminal judgements in cases concerning less serious offences and first instance civil judgements, where the value of the disputed object is under 20.000 EUR, soon becomes apparent.
Writing judgements in criminal matters at a first instance court that handle cases of less serious crime demands precision, with little room left for interpretation and creativity. This is because the evidential procedures in such matters are in most cases simple as there is video camera footage or several witnesses who can attest that the criminal act really happened.
However, the writing of first instance judgement in civil cases is as much an exact legal science as it is an art. The cases are much more diverse, and cover a plethora of legal fields and institutes with the most common ones being torts, breaches of contracts, annulations of wills, property disturbances, boundary demarcations, etc. The witnesses called by both sides usually provide contrasting depositions and sometimes plainly lie or other evidence can in some cases be interpreted one way or another. Moreover, although one can always lean on the judicature of High Courts, the margin of appreciation for each author to manoeuvre in is much wider than in criminal cases. Personally, I found writing civil judgements very stimulating, as I felt I had a lot of room to manoeuvre in. Of course, what type of judgement someone prefers is a question of taste.
In my view, two factors are especially important for a judicial trainee, who is just discovering the rules of court proceedings and judgement writing. Firstly, a supervising judge who is willing to invest time and energy to work with the judicial trainee and secondly, the availability of older model judgements. The importance of the first factor is, I believe, self-evident as a judicial trainee without proper guidance, especially at the beginning of their traineeship, will be completely lost in the complicated world of court procedures. Whereas the importance of the second factor might at first not be that clear, so a short explanation should follow. First instance courts handling less serious matters (Okrajna sodišča), usually decide on a limited number of types of disputes that occur most frequently. When one is writing a judgement in a case, it is important to have an old judgement of a similar case to model your own judgement, rather than starting from scratch.
Of course, different judges have different writing styles and which one someone chooses to model their own judgement on, depends in the individual. I personally found my role model in a retired judge, whose judgements are short, clear and concise. One of the most important decisions one must take when deciding on their style of writing judgements is how detailed the reasoning will be, meaning how long the judgement will be. If the reasoning is short, the judgement is more understandable. Still, at the same time, one could not put enough consideration on one of the several dozens of claims the parties have made, which can result in the annulation of the judgement by the High Court. If the reasoning is long, there is less possibility for this to happen, but at the same time the judgement can be too long and less understandable. There is a fine balance between the two that has to be found, and only experience can help in this endeavour. In my opinion, there is a very good practical reason why judicial trainees should write shorter judgements – the legal state examination. There the candidate must write by hand a judgement in 8 hours, which means that longer and more complicated versions of judgements are out of question as it is physically impossible to write them in such a short time. If a judicial trainee develops a style of writing that is shorter and more concise they probably will have no problems with writing a judgement in 8 hours, whereas if they are used to writing long judgements, they might find it difficult to change their writing style after in such a short time.
One of the reasons that the two years spend at a court are viewed by many former judicial trainees as a pleasant experience is also the social element connected with it. Trainees will usually work (of course this varies from court to court) in large rooms called trainee rooms, together with other trainees who work at that court – as a footnote, most of these rooms also have a small coffee kitchen. This gives ample opportunity for socializing and discussing legal and other more general matters in length. From a professional point of view, this socialization is useful as most trainees will in the future meet each other again in courtrooms, whereas from a more personal point it gives the opportunity to develop many long-lasting friendships – and other relationships.
To conclude, in my opinion, each law graduate who has the possibility to become a judicial trainee should seize the opportunity and try to squeeze as much out of the two years spent at a court as possible. They should be proactive, find good model judgements and use the last months of the traineeship to study intensively, but most of all do not stress and worry too much – there will be ample opportunities for this later in the career.
Rok Dacar, research and teaching assistant at the University of Maribor, Faculty of Law