INPRIS on Legal Opinions in the Polish Court System—A Conference Note

8 October 2013. INPRIS, in partnership with the THEMIS Judges’ Society, held a conference on ‘Legal Opinions and the Effectiveness of the Polish Judiciary’ under the auspices of the Supreme Court of Poland—the first public discussion of its kind in the country.

Timothy Don-Siemion

The conference was motivated by the fact that the legal opinions delivered by the Polish judiciary are often criticized for their lack of concision and insufficient clarity—a situation that has developed to the point where a growing number of judges have expressed their resentment of written opinions and are demanding the option that legal opinions be given exclusively orally. The participants of the conference examined the benefits of high-quality legal opinions both for the authority of the justice system and for civil society, and compared the Polish experience with international best practice, including in particular the legal opinions of the Supreme Court and other courts of the United States.

The conference, which was held at the Supreme Court of Poland, comprised 150 participants (with such honorable guests as the President of the Polish Constitutional Tribunal Andrzej Rzepliński and his predecessor Bohdan Zdziennicki) and twelve speakers (among them Presidents of the Supreme Court: Tadeusz Ereciński and Lech Paprzycki), who were divided into two discussion panels. 

The first panel, which discussed legal opinions from the perspective of the judiciary, examined the legal and precedential requirements that judges must meet when drafting legal opinions, and found that judges were most burdened by the demands imposed by current practice, and thus, that new models for the drafting of legal opinions are needed.  In particular, the panel noted that the current system of incentives within the judiciary rewards judges who write opinions that are least likely to be overturned by a court of appeal, often to the detriment of their clarity and accessibility to the parties, to legal counsel and to civil society. 

Several participants noted the benefits of clear and convincingly argued legal opinions for the authority of, and public trust in, the judiciary, as well as for the standardization of case law and legal practice.  Some panelists concluded that, given current trends and the relative scarcity of high-quality written legal opinions, permitting judges to restrict themselves to oral opinions would open the door to a still greater decrease in the quality of the communication between the judiciary and society as a whole.

The second panel discussed legal opinions from the perspective of civil society and the parties to court proceedings.  The panel noted that the current standard of legal opinions in Poland, and their targeting toward higher courts, rather than interested parties in society, is damaging to the interests of the great variety of NGOs, both those monitoring the judiciary and those carrying out analysis and educational roles, which frequently draw on court opinions in the course of their work. 

The participants of the panel discussed the institution of legal opinions in Anglo-American legal culture as a model from which valuable lessons could be drawn, as concerns in particular the role of judges in society, the accessibility of judicial opinions to the public and judiciary’s high linguistic standards.  The panelists concluded that written legal opinions in Poland ought to be written in a manner friendly to the public, even where the adjunct oral opinion may be less accessible, and closed the discussion by examining a set of guidelines for legal opinions being prepared by the Polish Academy of Sciences.

INPRIS is currently summarizing the conclusions of the conference in a policy paper. Summaries of several of the panelists’ contributions are located in the conference materials (available only in Polish).