THE SKILL OF LEGAL WRITING
Kalyan Jhabakh, Partner, Surana & Surana
I am a huge believer of the maxim “verba volant, scripta manent” which means spoken words fly away, written words remain!
The Essence of Legal Drafting
A well-drafted document in my opinion can make or break a case. A legal document, regardless of whether it is a plaint, affidavit or contract serves two purposes – informing and engaging both the client and the court about the legal issue. It is essential for lawyers and judges to draft all legal documents with clarity, such that the essential facts are conveyed even to a layman who may be reading it.
It is thus imperative that one refrains from using legalese or legal jargon while drafting a legal document. A legal document strewn with unnecessary and complicated phrases loses its purpose if the meaning is not conveyed to the reader in its entirety.
Legal drafting skills are also important as they ensure that the legal document is structured properly. This guarantees effectiveness and authenticity. For instance, overusing negative statements can make a document appear aggressive and confrontational. Hence, it is important to be cautious while one drafts legal documents, so that its balance and structure are maintained.
While most legal documents have a particular template format that can be referred to, be it a notice or a plaint, legal drafting also includes the art of drafting authentic documents. This means drafting the document on a case-to-case basis instead of blindly following a particular template. The lawyer is also to ensure that all facts, statements and law put into the document are verified and supported by evidence, case law or statute.
Common Concerns Associated With Legal Writing
Over the years, a multitude of law students have come to me for internships. While many of them are excellent researchers, I have noticed that a majority of them lack the skill of effective legal writing as the same is not emphasised upon or given any importance in the law school curriculum. A few of the concerns associated with legal writing include:
• too much verbosity
• lack of focus and clarity
• failure to identify the issues
• poor grammar
• lack of overall organization and structure
What Makes A Legal Document Well-Written?
Many a time, we construe a well-written document to mean one that accomplishes the writer’s intended purpose. While this definitely makes the document effective, it does not necessarily make it well-written. On the other hand, a document can be well-written even though it does not advance the writer’s purpose. For instance, if plaint has weak legal arguments, it is not going to convince the court, even if it is well-written.
Effective legal writing involves looking at the needs and interests of the reading audience. The content of a legal document must be understood by the audience who is reading it. The legal reader’s purpose for reading the document is to extract information that will facilitate decision-making. Hence, a document is well-written only if it facilitates decision-making. A lawyer must therefore identify his target audience as a first step.
Clarity is Key
Recently, Supreme Court Justice MR Shah while hearing a SLP, stated that he had to use tiger balm after reading an incomprehensible judgment passed by the division bench of the Himachal Pradesh High Court. In contrast, in another case, the Punjab and Haryana High Court approved a lower court judge’s use of simple language- observing that simple language is the strength of any writer.
Clarity is key to legal writing. To obtain clarity, the writing requires proper grammar and punctuation Another method to maximise clarity is to use ordinary words and simple sentence structures, ie, plain language.
A fundamental quality of good legal writing is conciseness. Concise does not merely mean brief, rather it is efficient. Concise writing conveys the writer’s points without the use of redundant words, and with adequate detail. Concise writing is writing that is as simple as possible without restricting the amount of information conveyed.
Engage The Reader
Good writing also engages the reader. It encourages the reader to engage with the material by agreeing with it, disagreeing with it, generating the reader’s own ideas, etc. In other words, it stimulates the reader’s thinking. And it is this quality that separates truly good legal writing from merely competent legal writing.
The Art Of Persuasive Legal Writing
Legal writing includes explaining the legal theory and the factual background such that it constitutes a coherent and credible whole. That means making choices. You may have to make choices between inconsistent legal theories or cull out the weak points. It is also important to not get carried away. The ease of electronic editing has made it easy for us to copy and paste large chunks of information, even if it is irrelevant to the case. Resist the impulse to put your reader through everything you had to learn to write the brief.
Tell A Story
Humans have since time immemorial resorted to story-telling to understand facts and resolve issues. Everything in the law is also a story. Hence, the winning legal document is the one that tells the most persuasive story. Anyone reading your document should be able to understand what the case is about without having to look at anything else. Additionally, the statement of facts should be explained such that it makes the reader take your side.
Connect the Facts to Legal Principles
Principles will have meaning only in the context of actual facts and events. Your job as a legal writer is to connect the legal principles to the specific facts of your case, such that it compels your reader to apply it the right way.
Make Your Writing Standout
In order to make your writing stand out, you need to first have a theme or a strong central idea to your legal document. Second, start strong and end strong, ie, start and finish with your two best arguments. Finally, illustrate what you have to say. We often underestimate the effectiveness of examples. Every point worth making is worth illustrating. By keeping these tips in mind, one can ensure that all legal documents drafted by him/her are well-written and also effective. Like in any other skill, practice makes perfect, therefore I urge all of you to actively engage in legal writing and drafting, or in other words- storytelling.