This article is a humble effort on the given topic as a learner. It is an effort on a subject, which as a part of legal profession; I know is the one of the most important but yet an underrated area known as Legal Writing. Public perceives legal professionals to be good draftsmen. However, it’s a fact that time devoted towards developing art of legal drafting by legal professionals is much lesser than the time devoted towards analyzing and interpreting laws. In our education system also, much lesser time is devoted towards teaching of drafting skills to students in legal field.
In a Research Paper "Improving Legal Writing: A Life-Long Learning Process and Continuing Professional Challenge" (2005) Suffolk University Law School Faculty Publications. Paper 21 by Vinson, Kathleen E., it was said that
“Writing skills do not get the recognition, priority, and resources they deserve even though they permeate the daily life of lawyers in every facet of the legal profession.”
The paper further quotes that
“Lawyers need to practice, refine, and further develop their legal writing skills as if their professional life depended on it because it often does. Law is a profession of words. Thus, written communication skills, rather than substantive legal knowledge, are deemed to be one of the most important skills necessary for beginning lawyers.”
Common questions which are paramount for every legal professional in developing art of legal writing are
a) What are the common rules for Legal writing?
b) Whether Legal writing involves ornamenting document with technical and complex words.
c) Whether Legal writing requires knowledge of advanced English grammar.
d) Whether Legal Writing is something which is out of reach of a common legal professional?
This article is an effort towards finding answers to above questions and also to analyse characteristics, process and do’s and don’ts of legal writing with references to scholarly articles and legal judgments and common grammar rules cited at different places in the article. Although, article seeks to identify common rules for legal drafting, but still exceptions cannot be ruled out.
i) Importance of good Writing skills
Ann Handley, CCO of Marketing Profs who also writes at AnnHandley.com said that,
“Words matter. Your words (what you say) and style (how you say it) are your most cherished (and undervalued) assets.”
It’s an undisputed fact that writing is an art. Just like the poets and novelists and fine art artists portray the world in new ways, writers also belong to same category that may mesmerize and leave the reader spellbound with their skilled writing. A good writer with his articulated writing grabs the attention of the readers and establishes connect with the reader in a manner similar to the poets, novelists and fine art artists.
It was said by Kyle Wiens, the CEO of iFixit (the largest online repair community) and founder of Dozuki (the software team behind iFixit) about how written words project the writer’s image in the physical absence of a writer.
“They are a projection of you in your physical absence. And, for better or worse, people judge you if you can’t tell the difference between their, there and they’re.”
In a Research Paper "Improving Legal Writing: A Life-Long Learning Process and Continuing Professional Challenge" (2005). Suffolk University Law School Faculty Publications. Paper 21 by Vinson, Kathleen E., it was quoted that
“Indeed, writing skills are fundamental to success in the legal profession and serve as the foundation for effective communication;”
It further went on to provide that
“Good legal writing includes the effective communication of legal analysis, rather than just technical proficiency with rules of grammar, syntax, and punctuation”.
It concluded as follows:
“However, to be an effective writer, in addition to mastering the complexity of the law, lawyers need to continue to master another stage of development — the ability to communicate their analysis of complex legal issues in a clear, concise, and logical manner that meets the reader’s needs.”
People might be expert in legal field but if they fail to equip themselves with writing skills, their legal skills would also fall short of delivering the desired results. Take an instance wherein, fairly lengthy written submission is submitted before a legal authority. Supposedly, it contains say certain basic errors pertaining to punctuation marks, framing of sentences, use of passive voice etc. Further, say reader’s also fail to understand what the writer wants to communicate to them. In such a situation, even though writer might be having expertise in legal field, his efforts will not yield him desired results.
Therefore, good legal writing forms foundation for effective communication and is a necessity in moving ahead in legal profession.
ii) What is Good Legal Writing:
What exactly is good legal writing or drafting? Once understood, it would help in charting out the path we need to pursue for improving legal drafting. The initial thought which comes to the mind is what should be the yardstick for analyzing good legal writing. Whether it should be based upon the achievement of the purpose of writer in writing the document or it should be reader’s assessment of document fulfilling the expectation of the intended audience.
Professor Mark K. Osbeck discusses this question very aptly in a published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review. The writer first discusses effective document and a well written document and then carves out distinction between the two styles of document as follows:
a) Writers’ perspective: Document serving writers purpose is an effective document but not necessarily a well-written document:- Professor Mark K. Osbeck analyses whether the fact that legal document achieved purpose of writer in writing the document can be the key criteria to decide what is good legal writing.:
“In other words, it seems plausible to assert that a well-written document accomplishes (or is reasonably calculated to accomplish) the writer‘s purpose in writing the document. If, for example, the writer‘s purpose in writing a brief is to persuade the court, then under this criterion, the brief is well written if in fact it persuades the intended audience (i.e., the court).”
However, it is not always true that only a well written document persuades the reader and achieves the purpose of the writer. A document although poorly written may still serve the purpose of the writer of convincing the judge and a document although well written may not convince the judge and therefore will fall short of serving the purpose of writer.
“For instance, a brief that takes advantage of a judge‘s known predilections or prejudices can be an effective document, even though it is poorly written; so too can a brief that is deliberately unclear.”
The writer’s perspective in legal writing may be biased in achieving the result in favour of his client howsoever possible and does not necessarily emphasizes on a well written document. Therefore, fulfillment of his perspective may always result in an effective document but not always in a well –written document. Thus, if the written document fulfills the purpose of the writer, it would be an effective document but it cannot be always said that such document would be a well written document.
b) Reader’s perspective: Document fulfilling the expectation of intended audience is a well-written document
Before moving on and discussing why readers perspective has been preferred for assessing whether a document is well written or not, observations in following two judgments highlighting the frustration of the readers in an inappropriately drafted legal document by the counsel is as follows:
The Ninth Circuit in United States of America in the matter of N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997) declared the famous “slubby mass rule”:
“In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief….Enough is enough."
The same rule was again applied in the matter of Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) and the observations regarding the written submissions were again very explicit as follows
“The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to the record.”
It went on to further provide that
“Bare assertions and lists of facts unaccompanied by analysis and completely devoid of case law fall far short of the requirement that counsel present “appellant’s contentions and the reasons for them.”
In yet another case of Henderson v. State 445 So. 2d 1364 (1984) Jacob HENDERSON v. STATE of Mississippi. No. 54662. Supreme Court of Mississippi. February 8, 1984 categorically said as follows:
“It is very poor English. It is impossible English….”
It further went on to provide that
“It's archaic. Even Shakespeare could not understand the grammatical construction of this indictment.”
It’s common while assessing any field of art, that it’s neither the perspective of the person who created the art and nor the perspective of the entire population who observed the art, which would be relevant to decide whether it’s a well crafted art or not. It’s the perspective of the intended audience for whom the art has been created, who would decide whether it’s a well crafted art. If it’s designed for public at large then it would be general public and if it is designed for specific audience, then specific audiences would assess the art. The creator of the art cannot live in an isolated world where he himself appreciates his art but it’s the intended audience for whom the art has been created, who would decide that whether the art meets their expectations and serves the purpose and thus is a well crafted art or not.
Mark K. Osbeck in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review said that
“Rather, lawyers and judges read legal documents because they need to extract information from these documents that will help them make decisions in the course of their professional duties.”
For e.g. lawyers write legal submission to serve following two purpose, one being to let the judge know about the facts of the case and second to provide an analysis of the legal principles on the facts of the given case so that the case may be decided in favour of his client. Another important issue to be considered here is that generally, the reader of the legal document has limited time available.
Therefore, if purpose and context of writing document is tilted so heavily in favour of reader of document, then document should be classified as well written when it satisfies the reader’s requirement. Hence, if reader is able to understand and extract required information for decision making from the written document in the limited time available with him, document would be classified as well-written document.
“..Legal reader‘s purpose for reading the document is to extract information that will facilitate the reader‘s decision-making. And thus, the legal reader will regard a document as well written if and only if the writing facilitates that decision-making. Good legal writing, therefore, is best understood as writing that helps legal actors make decisions in the course of their professional duties.”
If the readers have to slug out the information from the document, then even though the document might be serving the purpose of the writer and thus effective document but it would not be a well written document. The primary reason would be the failure to accomplish the purpose of the person for whom it is written. It has been categorically provided by Mark K. Osbeck in his work as follows:
“But it is the readers who determine whether the document is regarded as well written, based upon their perception as to whether the writing meets their expectations. If the readers determine that the writing style tracks their needs and interests, and therefore advances their purpose for reading the document, then it will be considered a well-written document. The writer‘s purpose and the writer‘s own assessment are immaterial. This is true not only of legal writing, but of all writing. At bottom, good writing means writing that fulfills the expectations (i.e., satisfies the needs and interests) of the intended audience.”
Conclusion: It would always be the reader’s perception which would decide a well written document. Legal writing which fulfills expectation of the reader and allows him to extract the relevant information in the time frame available with him, would be good legal writing and one that makes the reader slug out information and fails to let the reader understand what the writer is actually trying to convey would be hailed as an ill-written document.
(iii) Characteristics of Good Legal Writing:
Once ascertained, good legal writing has to be seen from the perspective of reader, factors which enable readers in extracting required information from the document and makes decision making easy for them would be the critical factors for determining primary characteristics of good legal writing.
Mark K. Osbeck in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review provided four essential characteristics of good legal writing as follows:
a) Good legal writing is clear
b) Good legal writing is concise
c) Good legal writing is engaging
d) Good legal writing is elegant
1. Good legal writing is clear:
Brian Garner and Justice Antonin Scalia in their book Making Your Case claimed that
“One feature of a good style trumps all others. Literary elegance, erudition, sophistication of expression-these and all other qualities must be sacrificed if they detract from clarity.”
Mark K. Osbeck in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review provided as follows
“But it is important for the legal writer to keep in mind that clarity is the paramount goal of legal writing, since readers can only make effective use of a document to aid their professional decision-making if they understand the writer‘s message.”
The writer writes a document to communicate to the reader. If writer is not able to establish communication with the reader clearly, then basic purpose of writing document would be defeated. Thus, to understand what clarity would mean in terms of legal writing, we would have to first ascertain the basic purpose for which the document is being written and probable class of audience of the document. These two factors would decide what clarity would mean for a particular document.
Mark K. Osbeck in his published work further provided following examples as follows
a) An associate reads an opinion in order to better understand the law and to better predict what a court is likely to do in a given factual scenario;
b) A partner reads an associate‘s memo in order to gain a better understanding of the legal challenges facing the client; and
c) A judge reads a brief in order to better understand the facts and the lawyer‘s arguments.
In all these given circumstances, both purpose of writing the document and class of audience are very different. Thus while writing the document, it would all depend on adopting different strategy for different situations i.e. horses for courses. Following are some rules which would enable writer in devising a strategy to make writing clear and easily understood by the readers of the document under different facet of legal professions:
a) Basic grammar rules should be followed: As a grown up professional, we tend to brush aside rules of English grammar treating them as something meant for the people engaged in English literature writing. This is one of the biggest myths. Advance rules of English grammar may not be entirely relevant to us but basic rules for grammar like appropriate use of tense, proper use of verbs, proper arrangement of words etc. make our writing relevant and effective. Any ignorance of basic grammar rules would only render the readers’ experience a nightmare and may sometimes result in catastrophe.
Basic grammar rules are used by readers while reading the document, as thumb rules and not as exceptions. They are normally not expected to be broken. If the writer deviates from these basic rules, it would leave the readers confused and readers would find it hard to understand what the writer is trying to communicate.
b) Use of ordinary words and simple sentence structures. There is always an apprehension and inclination while writing a document to use legal jargons and legalese. The writer believes that these words are necessary to be used in legal writing to express the views more clearly. It’s not always the case and more than the legalese, its simple language and sentence structure which enhances the quality of legal writing.
Richard Wydick, states in his book Plain English for Lawyers that ―“Good legal writing is plain English”
Lord Denning M.R. said, "If you were seeking to see what different principles should be applied, the first would be to recommend simpler language and shorter sentences. The sentence, which goes into ten lines, is unnecessary. It could be split up into shorter ones anyway, and couched in simpler language. Simplicity and clarity of language are essential."
The writer should know at the start of the document that whether he is writing to express or impress. The writing made for the purpose of impressing is laden with heavy words, legal jargons, verbiage and is complex. The writer who is writing to express should be clear and simple.
However, what would be meant by plain and simple language would depend upon the nature of audience for whom document is intended. The associate reading a document would not easily understand the legalese i.e. the legal terminology used in legal field however same legal terminology used by the legal writer in a written argument before the judge would make communication of the matter more clear and easy to understand. Imagine excessive use of legal terminology by the writer in a legal opinion given to the client. The client would scratch his heads and come out with nothing however the same language, if used before a judge would comprehend him the matter clearly. Thus the context in which the document is being written and proficiency of audience in legal and technical language would be relevant in determining what would be meant by plain and simple language.
However, use of legal terminology would be required at some places to communicate the matter more precisely. Mark K. Osbeck in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review provides a very interesting example In this regard
“An emergency-room physician, for example, is not likely to tell the on-call cardiologist that the patient has a rapid heartbeat. Rather, the physician is likely to report that the patient has a ventricular tachycardia because that is the level of specificity the cardiologist requires. Likewise in the context of legal writing, it is sometimes clearer depending on the audience for a lawyer to use terms of art such as preliminary injunction, promissory estoppel or quantum meruit than to try to translate those concepts into plain language.”
Following is the test provide by the learned author in using the technical terms in legal writing:
i) When you use distinctive technical or legal terms, consider whether the terms add any value beyond their ordinary-language equivalents.
ii) If not, use the ordinary term. If so, then consider the nature of the audience to determine whether the increased precision resulting from the technical term outweighs any loss of clarity that may result from using a term that may not be familiar to all members of the in-tended audience.
iii) The benefits of using precise technical terms, in other words, must be balanced against the benefits of using language that is clear to a broader audience.
iv) Technical terms may sometimes aid precision, but they also inhibit clarity if the reader does not understand them.
c) Avoid using unnecessary or clutter of words:- William Zinsser, author of On Writing Well, defines clutter as "the laborious phrase which has pushed out the short word that means the same thing.”
The clutter of words is a bunch of words used together instead of a single or a short word with same meaning For e.g. use of “a great number of” instead of “more”, “absolute guarantee” instead of guarantee, “at 12 noon” instead of “noon”.
In an article on good legal writing by Carole Lewis, Judge of the Supreme Court of Appeal, South Africa, she wrote that
“Omit unnecessary words: examples abound in legal writing: ‘the question as to whether’ instead of simply ‘whether’; and ‘the fact that’ can almost always be left out. And why refer to all rights and entitlements and interests when rights cover the latter two? The idea is to obviate clutter: the more the eye sees the less it absorbs.”
Why we should use “cease and desist” when we can instead use “stop”. Both the words used in the given phrases mean the same thing but it is believed by using multiple words for one single word, preciseness is being achieved. However, the results used by use of Clutter of words is sometimes other way around and instead of preciseness, things are made complicated and unnecessarily lengthy.
As a general rule and leaving apart exceptions, one must avoid use of synonyms and multiple words in place of single word. The basic idea to avoid clutter of words is to be clear and simple.
d) Appropriate use of repetition of words to make the view point clear: Writers often avoid using the words repetitively and prefer using variation of same words at different places. However, this use of variation or avoiding the use of same words at different places can be very harmful and may render the meaning of the draft turn on its head or leave the reader confused about what the writer is trying to say. For e.g. synonyms are used in varied context at many places in English language and reader might consider the meaning of the synonym in a context different than the one in which used by the writer.
“The Writing Process”, paper released by the Capella University aptly describes importance of repetition of important words and avoiding the document to be made into a thesaurus as follows:
· Repetition of and referral to key words and phrases signals to the reader that renamed concepts are important.
· Writers use repetition for emphasis.
· Consistency of word choice prevents confusion. Readers don't have to keep asking, "Is that writer addressing the same topic?"
· Repetition appeals to the ear and makes prose seem to flow.
· Repetition weaves the elements of different paragraphs together. Try drawing lines between repeated words in succeeding paragraphs.
However, this comes with a rider that the writer should not overdo repetition which may irritate the reader and would affect the conciseness of the document and may make the document less engaging. Hence, balance has to be maintained by the writer between using repetition of words and overdoing such repetition.
2. Legal Writing should be concise:
Conciseness has been defined in The Elements of Style (Third Edition, 1979) written by Professor William Strunk in 1929, and updated by his former student, E B White, Strunk as follows:
‘Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell.’
The word “concise” often takes color from brevity or being short. It is not brevity, but it’s the context in which the document is being written and how efficiently it conveys the meaning to the intended audience.
For e.g. judge in a legal matter may have a limited time for reading written submission of the counsel and understanding the matter and extracting required information for delivering the judgement. In a matter covered by an earlier judgement, he may be more interested to know straightaway reference to the earlier decide case law and throwing the entire legal history before him would only make the conciseness of the document go awry. However, a complex matter or idea may require long and detailed writing.
A very interesting example was quoted Mark K. Osbeck in his published work on “What is Good Legal Writing and why does it matter? in the Drexel Law Review in this regard as follows:
“efficiency means not using ten words to say what can just as well be said in six words, while employing the appropriate level of detail means not telling someone about the history of watch-making when they ask what time it is.”
Thus, conciseness is not being short but how efficiently the writer conveys his viewpoint that no word is wasted and every word works towards making the writing clearer to the intended audience. Conciseness is always relative looking to the
a) Interest and needs of the audience, and
b) Complexity of the matter involved.
If the matter is simple one, generally shorter legal writing may be required. However, if the matter is a complex one, detailed submission would be work. Therefore, efficient draft is not brevity but it is enabling the reader in extracting required information for the purpose of professional decision making without wasting reader’s time is always appreciated and it makes use of the limited opportunity available with the writer to the best extent possible. It’s like walking on a tight rope wherein you have to balance yourself by achieving conciseness of the writing without affecting meaning of the content and to make the most of the time span available with the reader of the document.
The question now arises is how can we concise legal writing. This the most typical part of legal writing to concise a lengthy document. For that you either need to be a good editor or required to have a good editor. Ann Handley, CCO of Marketing Profs who also writes at AnnHandley.com said that,
“Good writing has a good editor. Writers get the byline and any glory. But behind the scenes, a good editor adds a lot to process.”
The Late Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit was brought a draft opinion by one of his students and he replied as follows:
"Nice draft, Gene. Now go back and read it again. Take out every paragraph you don't need, then every sentence you don't need. Then go back and take out every word you don't need. Then, when you're done with that, go back and start the whole process all over again."
It would be appropriate to refer to the observations in the article on good legal writing by Carole Lewis, Judge of the Supreme Court of Appeal, South Africa, she wrote that
“It is often said that it takes longer to write a short argument or judgment than a long one. That is because the shorter work requires more thought. And culling or editing a piece makes one think again. The obvious truth is that the shorter work is better because it has been more carefully considered and structured. Brevity is an art that I think we should all attempt to achieve. It leads to simplicity and clarity which in turn lead to better writing and reading.”
Editing or making the document concise is an art wherein you identify the scrupulous material in the document, which even though removed would not affect the meaning and the content of the legal writing. The writer should have the knowledge of the unnecessary material in the document and for that he should have a very good editing mind. The writer has to treat every word like a diamond in the jewel and make it speak for itself and words should never be wasted. Judgmental call has to be made by the writer to decide what can be weeded out without impairing the meaning of the document.
3. Good legal writing is engaging:
Writer Don Murray Good once said that
“writing serves the reader, not the writer. It isn’t indulgent. “The reader doesn’t turn the page because of a hunger to applaud,”
Lord Denning, a well-known British jurist, described the importance of engaging the reader as follows:
“No matter how sound your reasoning, if it is presented in a dull and turgid setting, your hearers—or your readers—will turn aside. They will not stop to listen. They will flick over the pages. But if it is presented in a lively and attractive set-ting, they will sit up and take notice. They will listen as if spellbound. They will read you with engrossment.”
Legal writing should be engaging to keep the reader interested and hold on to the reader. Without being engaging, entire exercise of readers of reading the document would be laborious and would make their work harder of extracting the necessary information. If the reader restricts his involvement to flicking of pages, no matter how clearly and concisely one has written the document, document would fail to achieve its intended result.
· How to make writing engaging
Mark K. Osbeck in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review provided following inputs in this regard:
a) Introduction of each document: Introduction of the document is something which catches the attention of the reader and gets hold of him. A well written introduction has the ability to such an extent that once the reader reads the introduction, he is forced into reading the entire document. Introduction is one such paragraph which creates an aura that first impression is the best impression. Introduction should contain broad reference and substance of subject matter and how writer intends to move ahead. “The Writing Process”, paper released by the Capella University provides an insight about the critical issues in Introduction of a document as follows:
“Writing paragraphs for the body of your essay can be difficult enough, but introductions present special challenges. In an introduction you must gain your reader's attention, identify the subject of your essay, and present the basic substance of your argument for the essay. “
Introduction should be crisp and should contain most relevant content. The paper suggests and alternative strategy preferring to write the introduction, once the entire write-up is finished as writer would then be able to express his thoughts in a better and concise manner.
b) Using varied sentence structures: One way of engaging readers is to use varied sentence structures. Excessive repetition of words and long and tedious sentences only make the reader bored from the document. Sentence structures which differ in length and have smooth transition, keep the audiences engaged with the document. It also depends on the ability of the writer to use expressive words. Some of the examples can be replacing weak verbs with more stronger and specific verbs, combining short and vague sentences to form a more specific sentence without making the sentences long and tedious, avoiding excessive use of words like “there is”, “there are” in sentence etc.
c) The writer using his own voice: J.B. White, has described the development of an authentic writer‘s voice as central to the enterprise of becoming an effective lawyer:
“Law, as you can see, is for me a kind of writing, at its heart less of an interpretive process than a compositional one. The central task for the lawyer from this point of view is to give herself a voice of her own, a voice that at once expresses her own mind at work in its best way and speaks as a lawyer, a voice at once individual and professional.”
Does that mean that speaking language and writing language of the writer should be the same? No not necessarily. It only means that the reader should feel that the language used by writer is expression of his own mind on the given subject. The language having writers own voice reflects individual characteristics of the writer and the reader starts to build an image about the writer. This enables the reader in establishing connect with the writer and once established, it would tantamount to engaging the reader in the writing.
d) Tone used in the legal writing: Mark K. Osbeck in the published work on “What is Good Legal Writing and why does it matter? in the Drexel Law Review provides a very interesting example In this regard
“Suppose, for example, that a plaintiff‘s lawyer sends a demand letter to the defendant that is otherwise well written (i.e., is clear and concise), but its tone is too matter-of-fact or even friendly. The letter would more effectively engage the reader if its tone were more serious so that it evoked some concern on the defendant‘s part as to the consequences of not settling. Otherwise, the tone interferes with the content of the letter, and the writer‘s message gets diluted. “
Thus, subject matter and the writing style of the writer should be in sync with each other otherwise the reader would feel disconnect from the document and would be at cross roads understanding the basic purpose of the document.
4. Good legal writing is elegant
If one has to express what elegance means, then it would be the writing which leaves the readers “spellbound” or “mesmerized” and makes the reader stand and applaud. Elegance or beauty for that matter is a subjective matter i.e. a particular thing can be elegant for one person and not of much interest for another. Generally speaking, elegance is something which has an aesthetic quality and artistic flair. Mark K. Osbeck in the published work on “What is Good Legal Writing and why does it matter? in the Drexel Law Review provides a very interesting example In this regard
“A utilitarian object such as a chair or a watch is not considered museum-worthy merely because of its functional qualities; instead, it is principally the artistic quality of the design that makes it a great watch or a great chair. So too with writing: great writing transcends its functional purpose and exhibits an artistry not found in ordinary writing.”
What is elegance in legal writing has been provided by Williams and Colomb as follows:
“a balance and symmetry among its parts, one echoing another in sound, rhythm, structure, and meaning”.
Whether elegance is essential in legal writing? The answer to the question lies in the fact that some of the great legal writings have become immortal because of the way they have been written. Elegance makes the reader remember writing for a long time. Any Legal writing which satisfies its functional purpose is not required to be elegant. It can satisfy its core functional purpose by being clear, concise and engaging. However, good legal writing extends beyond its functional purpose and becomes great when it contains a touch of elegance and makes the reader say what a beautiful piece of writing. Elegance is a journey of transforming good writing to great.
It is important to consider the context in which the legal writing has been written, before considering whether elegance is essential in a particular document. An advice to the client is not required to be elegant as primary requirement is a straight advice. Elegance might not be a necessary trait for an office memorandum as it needs to convey the matter to the office staff clearly. However, a scholarly article on a legal matter may require elegance as a necessary trait to have readers remember it for a long time. It all lies in the context of legal writing and elegance would be the “X” factor in the document written by the writer.
(iv) Process of Writing:
“The Writing Process”, paper released by the Capella University aptly describes the mindset of writers and the crossroads at which they find themselves as follows:
“Consider this writer. She sits down to write, taps out a sentence or two on her keyboard, stops, rewrites the sentence, stops again, deletes, and on and on. She is exhibiting the symptoms of the Write and Rip Disease—trying to organize her thoughts, say something meaningful, and edit—simultaneously. No wonder writing stresses her and takes forever. That writer compares to a driver who jumps into a car and tries to drive with one foot on the accelerator and the other on the brake. Then he wonders why he is making so little progress. “
It’s very common during the writing process that when we go through the written draft in midst of writing the document, it’s felt that whatever we have written is having no relevance and it needs a complete overhaul. We delete it and start writing again, falling short of achieving anything.
The process of legal writing has been described in “Madman, Architect, Carpenter, Judge: Roles and the Writing Process” by Betty S. Flowers. This piece of writing has been referred to as one of the most innovative way of narrating the process of writing. Article provides that a writer needs to play following roles for completing the process of writing a document:
· Tug of War between the Madman and the Judge
While we start writing, it always happens that we tend to write whatever comes to our mind, which sometimes may have little relevance with the topic. We are only concerned with putting forward whatever thoughts come to our mind. This is called the role performed by us of a Madman. The qualities of Madman have been described by Betty S. Flowers as follows:
“One is the energy of what I'll call your 'madman.' He is full of ideas, writes crazily and perhaps rather sloppily, gets carried away by enthusiasm or anger, and if really let loose, could turn out ten pages an hour.”
The other person who comes and simultaneously interferes while the Madman is at work and feels whatever has been written is awry and needs complete overhauling is called the Judge. Judge would want to adjudicate the written matter concurrently whilst Madman is at work and would not allow him to move further before making him realize that everything written till now is rubbish. The qualities of Judge have been described by Betty S. Flowers as follows:
"The second is a kind of critical energy-what I'll call the 'judge.' He's been educated and knows a sentence fragment when he sees one. He peers over your shoulder and says, 'That's trash!' with such authority that the madman loses his crazy confidence and shrivels up. You know the judge is right-after all, he speaks with the voice of your most imperious English teacher. But for all his sharpness of eye, he can't create anything.
These are two opposite energies working against each other and unless separated, there would always be a tug of war between the Madman and the Judge to let go lose the other person. Madman wants to write as much as possible and Judge wants to cut the unnecessary weeds before even they are finished. This leads to the writer reaching nowhere. The idea is to separate them somehow from each other.
"So you're stuck. Every time your madman starts to write, your judge pounces on him.
“The Writing Process”, paper released by the Capella University aptly describes the mindset of a writer who is trying to write the first draft as follows:
“The legendary baseball player, Yogi Berra, exclaimed, "I can't think and bat at the same time," when his coaches urged him to think as he was batting during a serious slump. So too, you shouldn't be trying to edit when you are getting your first draft down.”
· Introduction of Architect and Carpenter to separate Madman and Judge
What to do in such a situation. Betty S. Flowers suggests separating the Madman and Judge by involving two characters between them i.e. Architect and Carpenter. Now ask Judge to take a back seat and assure him that his services would definitely be availed but at a later stage. This has been described by Betty S. Flowers as follows:
"And the trick to not getting stuck involves separating the energies. If you let the judge with his intimidating carping come too close to the madman and his playful, creative energies, the ideas which form the basis for your writing will never have a chance to surface. But you can't simply throw out the judge. The subjective personal outpourings of your madman must be balanced by the objective, impersonal vision of the educated critic within you. Writing is not just self-expression; it is communication as well.
· Allow Madman to do what he knows the best:
This has been described by Betty S. Flowers as follows:
"So start by promising your judge that you'll get around to asking his opinion, but not now. And then let the madman energy flow. Find what interests you in the topic, the question or emotion that it raises in you, and respond as you might to a friend-or an enemy. Talk on paper, page after page, and don't stop to judge or correct sentences. Then, after a set amount of time, perhaps, stop and gather the paper up and wait a day.”
Madman should be allowed to do his part of work and do what he knows best i.e. to unleash his emotions, thoughts, vision etc. in an unrestricted manner. This would bring all the ideas and thoughts going in the mind of the writer on surface which would be presented before the Architect for further action. However, role of Judge would not start before Architect and Carpenter complete their share of work and neither the judge should be allowed to interfere.
· Introduction of the Architect builds the Broad structure of the Document
The real life role of Architect is to plan the things, arrange the things in logical manner and to advise and oversee personnel to complete the work. In the given context, Architect would go through all what has been penned down by Madman, pick the relevant ones and arrange them in order so that the matter strictly adheres to topic and entire structure shows smooth transition and flow. Architect is not concerned about executing the finer details himself and is concerned with the sketch of broad structure of the document. The qualities of Architect described by Betty S. Flowers are:
"The next morning, ask your 'architect' to enter. She will read the wild scribblings saved from the night before and pick out maybe a tenth of the jottings as relevant or interesting. (You can see immediately that the architect is not sentimental about what the madman wrote; she is not going to save every crumb for posterity.) Her job is simply to select large chunks of material and to arrange them in a pattern that might form an argument. The thinking here is large, organizational, paragraph level thinking-the architect doesn't worry about sentence structure.”
· Carpenter Executes the minutest of the details through finest of the methods
Now comes the Carpenter, as in real life, he executes the things as provided by Architect. He picks the broad scheme of things, executes the finer details and lends final shape to the object as finalized by the Architect. The basic difference between the working of Architect and Carpenter is wherein Architect is concerned with the broad scheme of things like the paragraphs, arranging the material into the pattern etc. but the carpenter is more concerned with every minute things and their execution i.e. structure of sentence, transition between the sentences and how sentences fits into the broad structure of paragraphs as framed by the architect and lends meaning to the same. This has been described by Betty S. Flowers as follows:
"No, the sentence structure is left for the 'carpenter' who enters after the essay has been hewn into large chunks of related ideas. The carpenter nails these ideas together in a logical sequence, making sure each sentence is clearly written, contributes to the argument of the paragraph, and leads logically and gracefully to the next sentence. When the carpenter finishes, the essay should be smooth and watertight.”
· Judge eradicates the minutest of the defects and brings to the fore final document
The final role is played by the judge. Role of the judge is to polish the document and is the final checkpoint. The shape given by the Carpenter is checked for every minutest detail by the judge starting from the punctuations, spelling and grammar etc. Role of the judge has been described by Betty S. Flowers as follows:
"And then the judge comes around to inspect. Punctuation, spelling, grammar, tone-all the details which result in a polished essay become important only in this last stage. These details are not the concern of the madman who's come up with them, or the architect who's organized them, or the carpenter who's nailed the ideas together, sentence by sentence. Save details for the judge."
Conclusion: Madman and Judge have always been with us as partners while writing. As a writer, we face this problem and have to curb our instincts of correcting the matter while writing the draft of the document. The idea is to hold the Judge back to work on the smooth and watertight content provided to him once Madman, Architect and Carpenter have performed their roles. Each and every player has to play his role as and when turn comes and role of any of the player should not be missed and should be completed in right earnest, to make the writing reach a logical end.
v) How to write a Legal Document
The writing process in general may be laid down as follows:
· Preparation of Legal Writing:
a) Prepare an Outline: Think before writing. One has to lay down the thought process and prepare a broad outline keeping in mind the goal of writing the document. Writer with clear thinking would be able to write his thoughts logically. The points which have to be kept in mind before preparing an outline are nature and purpose of document, basis of forming the opinion and content to support the opinion and its basis.
b) The entire process of legal writing has been broken into following phases by Danielle Pineres in “Ten tips for transitioning to legal writing” as follows:
· Research again,
· Proofread and finally
· do it all over again after you have received feedback.
The author provides that it is very rare that a legal document is written in one go. It has first to be researched, pre-written and a draft needs to be prepared. The matter needs to be researched again on the basis of the draft prepared. This research would enable the writer to think and re-organize the matter once again in a manner best suited for the document. Once, document is re-organized then it is revised and proof read and if need be the entire process is again revisited.
c) Chronological Story of the Facts: The writer needs to prepare chronological story of the facts and once the chronological facts of the story have been prepared then apply law to the facts. This would enable the writer in understanding facts to get hold of the matter. Chronological facts would save the writer from the risk of missing the facts from considering while preparing the legal document.
d) Preparation of 3-4 main points and further sub-division in small sub-groups: The initial response to the draft to be prepared should be preparation of 3-4 major points and then the same may be divided into further sub-groups. This would enable the writer in logically sequencing the matter.
e) Thinking over the arguments against the case: Once the broad outline and arguments of the case have been given a thought, writer should spend some time in writing the arguments against his case. The writer needs to pretend that he is the person arguing against the case and needs to raise and consider every uncomfortable question which may arise before him. This would allow the writer to either reconsider the arguments or modify the arguments appropriately so as to cover those grey areas as well.
· Preparation of Initial Draft and points to be considered while writing:
In an article “Bird by Bird: Some Instructions on Writing and Life, by author Anne Lamott, key process of writing an initial draft were highlighted as follows:
“For me and most of the other writers I know, writing is not rapturous. In fact, the only way I can get anything written at all is to write really, really shitty first drafts.... Start by getting something—anything—down on paper.... The first draft is the down draft—you just get it down. The second draft is the up draft—you fix it up. You try to say what you have to say more accurately. And the third draft is the dental draft, where you check every tooth, to see if it’s loose or cramped or decayed, or even God help us, healthy.”
It is said that preparation of the first draft would amount to 50% of work being completed. Few relevant points for preparation of the Initial Draft are as follows:
a) Mention Facts of the Case: The writer should narrate facts of the case in an easy and clear manner which would help in applying the law to the facts in hand. Preparation of chronological facts earlier at the starting helps writer in describing the facts in an appropriate manner.
b) Beginning of each paragraph should indicate that the writer has moved on: Beginning of each paragraph signals to the reader that a new step in the development of the argument has been reached and should showcase smooth transition from one argument to another. The first sentence of the paragraph should be able to demonstrate the main idea of the paragraph and what the writer intends to press upon or highlight in the paragraph.
c) Clear Sentences and Points Heading: There should be clear sentences and point headings so as to enable the reader in understanding the entire argument. The paragraph headings and various subgroups formed out of the main point acts as a catalyst in getting the reader to understand the flow of content throughout the argument.
d) Break the Paragraphs in case of long and complex matters: Breaking long and complex sentence results in better understanding of the document by the reader. Long and complex sentence gets the reader bored and they lose interest in the arguments which lead to the loss of the litigant. Sometimes, complex set of arguments may require creating an exception to the general rule and breaking long paragraph, inspite of no new argument being raised or no transition in terms of subject being made between the two paragraphs.
e) Concluding each point with a conclusion before starting a new point: Each previous argument should end with the conclusion before the writer intends to raise a fresh argument and aptly clarify to the reader that writers has concluded the previous argument and has now raised a fresh argument . “The Writing Process”, paper released by the Capella University aptly describes how conclusion of one point should be the starting of the new point:
“Can you prove that A caused B? That your Evidence A actually bolsters Argument A? Are you building an argument step-by-step or will the reader have to hunt-and-peck for information? Will your reader buy your conclusions based on the argument you have developed?”
f) Organization of Material so as to serve the need of the user: Document should be so arranged that it serves the needs of the user. It is aptly clear that the writing is analyzed from the perspective of the reader and if the document is not arranged as per the need of the reader, in my view it would not achieve the desired results for the writer and in turn the litigant will suffer.
· Revising and Editing of the Draft:
“The Writing Process”, paper released by the Capella University aptly describes the process of revision as follows:
“Revision means looking at a paper like an outside critic and finding opportunities for cutting, adding to, reordering, or rewording a draft. It requires writers to reconsider the big picture of their drafts. “
It further provided that-
“Be prepared when you revise to cut whole sections of what you have written. Conversely, once you look again at your paper, you might want to add new sections. Perhaps you decide to reorder previously written ones. In other words, revision means rethinking everything and staying open to making significant changes, if necessary.”
Thus when we sit to revise and edit the document, we should be more open to corrections and play the role of the architect and the judge profoundly as described above. Some of the important part of the process of revision and editing are as under:
a) Elimination of the Unnecessary Part of the writing: It has to be remembered that every word in the document should speak and the effort in the final editing should be done in a manner to remove all the unnecessary paragraphs, sentences and words although retaining the meaning of the document. More the document is concise, better is the document. Long sentences, clutter of words, verbiage, legalese etc should be avoided to make the document crisp and straight forward. It might be possible that while editing we might come across that some of the important topics have no information and while some other irrelevant topics have much more information. Good editing knows what to and what not to edit, delete and insert.
b) Find the errors rather than readers highlighting the errors: It’s better that even the last remaining error in the document is traced by the writer. Editing and proofreading requires the person carrying out to be on his toes and look for faults to the minutest of the extent possible. Endeavour of the writer should be to find the errors himself rather than the reader highlighting the problems.
c) Grammar and Spell Check: Writer while conducting final editing of the document should proofread check because it’s the subtle errors which may change the meaning of the document on its head. These errors also irritate the readers and make them ponder upon the meaning of each sentence.
d) Read one more time: This is one thing which we should not miss. The time when you think that the editing is complete, give it a last read. This would give you an idea and the comfort that no error has been left.
(vi) Do’s and Don’ts in Legal Writing:
· Use of Active Voice Rather than Passive Voice: Use of Active Voice makes the meaning of the sentence clear without making the sentence longer. The sentence remains a crispy and short without compromising anything on the meaning of the sentence. For e.g.
a) Use of Passive Voice: The case was argued by the plaintiff himself.
Use of Active Voice: The plaintiff argued the case
b) Use of Passive Voice: Income Tax Return was filed by X.
Use of Active Voice: X filed the Income Tax Return.
c) Use of Passive Voice: It must be done by you.
Use of Active Voice: You must do it.
· Use positive voice rather than negative voice: The writer should use positive voice rather than the negative voice. Use of positive voice makes the reader know what is rather than what is not. Some of the examples are use of words like writer should use ‘dishonest’ instead of ‘not honest’; ‘trivial’ for ‘not important’; ‘forgot’ rather than ‘did not remember.’
Use of double negatives should be avoided in legal writing. Use of double negatives baffles the reader about what the writer is trying to communicate. Instead of using the double negatives, positive word can be used by the writer. For e.g. use of words ‘common’ instead of ‘not uncommon’, ‘significant’ instead of ‘not insignificant’, use ‘capable’ instead of ‘not incapable’ etc.
· Unnecessary words which generally do not add any meaning to the sentence but only lengthens the sentences should be avoided: These words are sometimes called as “Empty Words”: The best thing is to delete the word which does not add anything to the sentence said by noted writer and editor William Zinsser. Some of the examples is like use of ‘this case’ rather than ‘in the instant case’, ‘now’ instead of ‘at this point in time’, ‘although’ instead of ‘despite the fact that’, use of ‘shortly’ instead of ‘in the near future’, use of ‘how’ instead of “the manner in which’ etc.
The use of words such ‘the fact that’, ‘It should be noted that’, ‘I would like to point out that’, ‘I would argue that’, ‘In fact, ‘the course of’, ‘It has been determined that’ can almost always be left out in general cases. These are often termed as throat clearing words For e.g.
a) It should be noted that, plaintiff made the ……
b) We can straightaway start as “ plaintiff made the….
The idea is to use simple language in a concise manner wherein the meaning may be communicated easily to the reader.
· Legal writing should avoid indentation and great white spaces: The idea is that legal writing should be engaging and if the reader has to turn the pages after reading every 10 lines on a page, then it will not only frustrate him but also make the writing less engaging. In an article on good legal writing by Carole Lewis, Judge of the Supreme Court of Appeal, South Africa, she wrote that
“Formatting of documents results in single points with many subpoints stretching over many pages and leaving much white space on the margins and in between points. It is distracting for a reader to have to turn several pages in order to read one idea. Legal writing should not look like a statute or a mathematical table.”
· Legal writing should avoid using capital letters,: It is often tendency in writing to use different fonts, bold, italics, underlining or capital letters either individually or through more than one method for the words emphasized. The text is easily readable with minimum use of capitalization and highlights. Capital letters and highlights do not get attention but they break the concentration of the reader. However, writer may require the use of highlights and italics in paragraph headings or sub-headings.
· Use of Footnotes: This is an area where the opinion is divided. Some of the authors have suggested use of footnotes whereas others have suggested otherwise. In an article on good legal writing by Carole Lewis, Judge of the Supreme Court of Appeal, South Africa, she wrote that
“Footnotes are useful for references or citations. Counsel use them increasingly in heads of argument, and judges in judgments. In my view, footnotes are a distraction and should be used sparingly. If something is worth saying then it should be in the body of the text. It is difficult for the reader to move between text and footnotes. If there is argument in a footnote, or even a quotation, the reader’s train of thought may be broken by moving between the logic of the text and the distraction of the footnote.”
However the other side of the argument says that references or citations used in the middle of the write up breaks concentration of reader and reader tend to skip unnecessary area. This process of reading and skipping renders the exercise of the reader less engaging.
The opinion stands divided but little tilted in favour of avoid using of footnotes. Concluding, although it is suggested minimizing use of footnotes but it all depends on the writer’s choice, which way he sees the use of footnotes.
· Legal writing should avoid contractions: Contractions are shortened version of words which are used in written or spoken. For example: ‘Don’t’ and ‘can’t’ are contractions of “do not” and “cannot” etc. The use of such shortened versions is generally made in informal interactions and thus they are considered as inappropriate in legal writing.
· Use of words ending either with ise or ize: Writers often face the dilemma of using words ending with “ise” or “ize”. Use of words ending with “ise” represents UK Popular press and similarly words ending with “ize” represents American English. For example realise or realize, apologise and apologize and civilise or civilize etc. It is suggested that one of the styles should be opted and then persisted upon by the writer.
· Use of Citations: It is often thought that more we use the citations, more it would be better. In that process, we sometimes provide a clutter of citations which may or may not be of our help. General rule for using of citations is that firstly we should be thorough about the reference used in legal writing and secondly, most appropriate ones should be used by us. The reader also finds it very frustrating in finding the relevant citations out of the ones mentioned.
· Avoid Nominalizations: Good Legal writing should avoid nominalizations. Nominalization is an act whereby a verb is converted to a Noun and one more verb is added to the sentence to take place of verb converted to Noun. For e.g. normally we say that “X made a collision”. In this sentence, the word “collide” is already a verb, but it is changed to a Noun by converting it to “collision”. Now another verb “made” is added to the sentence to show what action has been taken. It would have been very simple to say that “X collided”. Another example can be to use word “apply” instead of “submission of application”. Nominalization should be avoided and the sentences should be straight to show who did what and what action was taken to do it.
· Use Short sentences rather than long and ever running sentences: One of the examples have been provided by Volokh and Tanford, writers of the book “How to write good legal stuff”. They provided following example in their book about the sentences which keep on running with several qualifying phrases as follows:
"The court in Chester v. Morris, a case involving a similar traffic accident, held that a person riding a bicycle must adhere to the same standards as a person driving a car, although it limited its holding to the facts of that case, which included the fact that the bicyclist was intoxicated."
They provided that the good writers break long sentences in short sentences and write the above example as follows:
"Chester v. Morris involved a similar traffic accident. The court held that a bicyclist must adhere to the same standards as a person driving a car. The opinion is limited to situations in which the bicyclist is intoxicated."
This would lead to better understanding of the matter for the reader. Therefore reader should use short sentences and avoid sentences running on and on.
· Meaningless use of Adverbs which we think make our case stronger should be avoided: It is observed sometimes that the writers put certain adverbs in the sentences in order to make the case stronger which is only meaningless and does not adds any value to the sentences. Some of the e.g. of avoiding such a sentences are use of words “important”, “true” and “obvious” instead of “extremely important”, “absolutely true”, “clearly important”, “manifestly obvious”. It can be observed that use of such words do not add any value to the sentences but only make the sentences long.
· Connectives: Connectives are used in English Language for smooth transition from one sentence to another and from one topic to another. Use of connectives is important to showcase the reader that two things are connected and write-up coming up is an extension of the previous one. Famous English Writer Bryan Garner provided following examples of connectives:
When adding a point: also, and, in addition, besides…
When giving an example: for instance, for example, for one thing.
When restating: in other words, that is, in short, put differently, again…
When introducing a cause: because, since, when.
When introducing a result: so, as a result, thus, therefore…
When contrasting: but, however, on the other hand, still, nevertheless…
When conceding or qualifying: granted, of course, to be sure, admittedly…
When pressing a point: in fact, indeed, of course, moreover.
When explaining a sentence: that is, then, earlier, previously…
When summing up: to summarize, to sum up, to conclude, in short…
When sequencing ideas: First,…Second,…Third,…F
Conclusion: Entire process of legal writing requires writer to play different roles and be ready to research, draft, revise numerous times. It’s one long journey and very rare that legal writing is completed in one go. Legal writing aims to make the readers understand the subject and enable them in extracting required information in the limited time available. Good legal writing always takes into account probable audience and context in which subject is being written. It should be clear, concise, engaging and elegant. Elegance never means use of Legal Jargons, Legalese and Verbiage. Advanced Grammar rules may not be entirely applicable in legal writing but basic grammar rules should be followed and writers should not be carefree about the basic grammar rules. A misplaced use of comma can render meaning of the sentence turn on its head and may cause huge legal implications. However, I would again repeat that these are general rules and specific situations may result as an exception to the general rules.
More one practices Legal writing, better they become in legal writing. It’s all about art of expressing yourself and you would get to know and express yourself better as you go deep down into the journey of writing. Practice makes one perfect. So keep writing and keep discovering yourself.
By- Arpit Haldia