HALLMARKS OF GOOD LEGAL WRITING*
Law is a profession of words. 2 Words, oral and written, are the staple of our practice. A lawyer who does not write is no different from a doctor who does not use a stethoscope, or an architect who does not draft designs, or a vendor who sells no goods. That lawyer is one in name only. The lawyer who knows enough of law but has difficulty in writing, faces serious problems in practice.
The foremost aim of legal writing is to communicate. Write in such a way that the reader understands what you want to say. There is here an obligation of courtesy—the writer must always consider the reader’s comfort and convenience in mind. Says Brian A. Garner, the American guru on legal writing: “Your readers are the ones, finally, who matter: You have invited them to attend your words, you seek their precious time, and you may even expect to be paid for your efforts. Courtesy requires that you show your readers some grace and consideration.” 3 This is the golden rule of writing: write to others as you would want others to write to you.
Follow Standard English. Standard English, also known as Standard Written English or SWE, is the form of English most widely accepted as being clear and proper. It is a collection of guidelines for communicating effectively. So it is not conventional to write like, say, Jedi Warrior Yoda: “The rule of law follow the Court must,” instead of the conventional “The Court must follow the rule of law.”
Use plain language. “Plain” here does not mean drab or ugly. Plain language is the idiomatic and grammatical use of language that most effectively presents ideas to the reader.” 4 As the starting point and at every point, design and write the document in a way that best serves the reader. Your main goal is to convey your ideas with the greatest possible clarity.” 5 Plain language is conversational language; the words used on paper are the same simple and familiar words spoken within the norms of respect and civility. The writer’s message is caught in one passing.
Obey the rules of grammar. Grammar is not a code of law but a set of conventions, a tool of communication to achieve the writer’s purpose. Some rules of grammar are strict. For one, often violated is the rule that the verb must agree in number with the subject. Plural subjects take plural verbs, singular subjects take singular verbs. It is therefore incorrect to say: “Each of the defendants were [was] required to post bail.” Or, this example found in SCRA: “Moreover, the Court notes that the registry receipts were not even marked as exhibits so that it [these] may be considered as part of the records of the case.” Another rule is to anchor modifiers to what they modify. Correct: “Sustaining a gunshot wound on his leg, the victim fell.” Incorrect: “Being a leader in construction arbitration, we will be honored by your presence [you will honor us by your presence].”
But some grammar rules are plain “superstitions,” the word used by Fowler to describe “unintelligent applications of unintelligent dogma.” 6 Garner lists some of these superstitions: 7 “(1) Never end a sentence with a preposition. The origin of this rule is in the very meaning of preposition: stand before. The preposition stands before the word. This is the rule in Latin. There is no reason to extend it to English. (2) Never split an infinitive. (3) Never split a verb phrase. This happens in a compound verb (ex: have/have been ___). ‘I greatly have been disappointed’ is less natural than ‘I have been greatly disappointed.’ (4) Never begin a sentence with And or But. (5) Never write a one-sentence paragraph. You can use a one-sentence paragraph when you wish to highlight a critical point, or to dramatize the transition from one stage of your argument to another, or to give the reader a rest if your instinct tells you that the reader might be tiring. (6) Never begin a sentence with Because.”
Apply the professional form and tone. Most legal writing is formal so the conventions of formal writing apply. Hence, avoid contractions (“Plaintiff hasn’t proved his case”). Avoid “street talk.” (“The robber was put in the slammer for ripping off a bank”). As one writer observes, the safe tone is one of “measured rationality,” which carries the invitation: let us reason together on the issue. 8 “Target the paper as if the audience were a reasonably intelligent and diligent judge who until now has had little or no exposure to the issue on which you write but who is about to make an important decision on it. Assume this judge has some serious reservations about the position you take, but has not yet made up his or her mind on the subject. Your job is to anticipate and meet all of his or her objections and other concerns.” 9
Use respectful language. Our writing must conform to the basic rules of good manners. Gutter language, sarcastic or insulting remarks have no place in court pleadings. Lawyers have been sanctioned for uncivil writing.
Give Advice in a Commercial Context
Commercial awareness, in its essence, is this: being aware of the commercial context. Sounds obvious, but it’s actually one of the most forgotten elements when it comes to legal writing for business. Too often, lawyers think of themselves as specialist advisers, giving guidance on the letter of the law. But the most effective legal advice is tailored to the client’s needs, goals and objectives (in other words, advice tailored to the commercial context).
So, how to integrate your legal advice and your commercial understanding? A good strategy to adopt is to spend time investigating the client’s business context. Think about what they actually want, what they’re asking for, and only then dive into the relevant law. Once you understand the legal foundation, you’ll then be in a good position to explain it with an emphasis on how it applies to that particular client, in that particular case. Make sure you’re not wasting space on material that is neither relevant nor important – get to the point and deliver the answer.
Know Your Own Writing
Here’s a quick test for you: can you explain your point, in as few sentences as possible, and still capture the essence of what you’re trying to say? It’s often when we try and explain a concept to someone else that we realise we haven’t really understood it ourselves. A fellow student might be a willing participant if you want someone to practice on – or just try explaining it to yourself! If you find that you hesitate, revisit your analysis.
Sounds counterintuitive, but it’s true – the more you understand a topic deeply, the less you’ll need to play around with jargon, long sentences and complicated descriptions. It takes a lot of effort to write with clarity, grace and style – but you’ll be recognised and rewarded for it.
Eloise Skinner is a solicitor at Cleary Gottlieb Steen & Hamilton LLP. Eloise started her journey in law at the University of Cambridge, graduating with a triple first-class degree. Following her studies, Eloise developed an interest in professional development, leading her to become a frequent contributor on careers-related topics for organisations such as The Lawyer , Lex 100 and the Law Society . Her new book, Junior Lawyers’ Handbook, can be purchased here.