Mastering the Art of Legal Writing

An average lawyer writes more in their lifetime than an author. A literary bent of mind inevitably helps lawyers draft and argue better. Literature is often used by judges to explain the law to common man. The best example is that of late Justice VR Krishna Iyer, whose inimitable style of writing judgments reflected literary merit. Legal writing and research, in varying degrees, are the alpha and omega of the legal profession. They are an indispensable skill for a lawyer or a legal scholar to cultivate, compete, survive, and flourish in this profession. However, legal writing is an art which always allows scope for improvement. The challenge in legal writing is for the written piece to respect the fundamentals of high-quality writing, i.e., plain , clear[1], concise and precise text[2]. Further, vetting the text for spelling, grammar and syntax is a must for any form of legal writing. Incidentally, reading can have an exceptional influence on improving one’s writing. While there can never be enough guidance on ameliorating one’s legal prose, one may consider the following key principles to master the art of legal writing[3]:

1. Know your Audience

Before finalizing the tone of the written piece, ask yourself, “who is the audience to these words?” A jurist? A student? A policy drafter? If nobody is in sight, create the person in your head that could be the prospective reader of the article. Now, tether your article to the benefit of this person. For instance, a brief submitted to the court must advocate and persuade. A memorandum to a client must analyse the issues solicited, report the state of the law on a subject matter, and recommend the most appropriate course of action. Thinking from the reader’s perspective makes it easier to use the language which is reader friendly and decide the length of the article keeping in mind the reader’s time.

2. Eliminate Distractions

It is a possibly flawed understanding that multitasking gets more work done. Legal writing is the writer’s brainchild. The scholar must devote abiding attention to the research and writing at hand to reproduce his thoughts in the most articulate and cohesive manner. The best written pieces necessitate complete attention of the writer. Thus, put distractive elements such as technology, disturbances from other deadlines and emergencies aside. Devote the mind space purely to the task at hand to produce clear and comprehensive thoughts.

3. Ideas become Scholarly Articles

It is often said that the reason why an idea occurs to us, is that we have it within us to execute the idea. Ideas represent the lacunae in the existing understanding of the common readers. Thus, the moment an idea occurs, jot it down where you are most likely to revisit it. It could be a scratchpad or your phone; note it where you can safely compile and revisit it. Ideas are points where a legal writing piece can commence to take shape from. Ensure that the ideas which occur to you at random find a secure place to be clearly expressed and refined for future use. Inspiration comes when you least expect it. One trick is to always note down one’s thoughts in the moment they occur to you, lest they disappear from your memory.

4. Legal Research is the Cornerstone

Legal writing is an outcome of extensive legal research. While legal research merits a discussion at length on its own, for now it is sufficed to state that the foundations of legal writing are adept legal research skills. While the legal scholar is free to assimilate facts and to produce his/her rational opinion, they must back it up by literary sources which expound, support, refute or shape their thought and opinion. The writer must be clear on whether the source holds value as precedent or is merely persuasive in nature. Present a balanced point of view. Do not feel obliged to present just one side of the coin instead acknowledge the legal research available in a wholesome manner and present conflicting or unfavourable views which could challenge the ideas of the written piece. However, in citing judgements, as a rule of thumb, more recent rulings are always more preferred compared to much older cases. It would help to develop a habit to refer to physical compendiums of judgements. These tend to be significantly more detailed and will help you understand the subject matter more thoroughly.

5. Structure the writing

Any written work should have an introduction, an exposition, analysis, and a conclusion. Punctuating the writing through headings adds greater clarity[4]. Limit each expository paragraph to one idea or closely related ideas. Link those ideas of one paragraph to the next one. Pay attention to font size and para length[5]. Moreover, since it is better to be strictly adherent to the guidelines of respectful academia, a scholar must cite all their resources. It is unlawful in various jurisdictions to borrow words written or spoken, without giving due credit to their author. In brief, it makes for a poor scholarly attitude. Thus, when in doubt, always cite the sources.

6. A Heading Speaks a Thousand Words

Choose the most deserving title to your written piece. It should be impactful enough to make the reader want to read the entire article. It should be promising enough to speak for the contents of the article. The title of the written work must be directional, clear, and crisp, instead of vague, lazy and winding. For instance, someone is unlikely to click on an article titled, ‘Arbitration update’ or ‘Insolvency Laws’ unless by mistake a reader clicks on it or if it comes from a renowned source or authority in the subject.

7. Illustrate, Question, Engage

While the introduction of the written piece could captivate or bore the prospective reader, the writer must know that most audiences do not bother to read the article to the very end. What could possibly make the exigent reader find the article worthy of their time and attention? Not merely a catchy introduction, but perhaps an appropriate image that goes with the gist of the scholarly piece. Illustrating the article helps the reader visualize the information they are attempting to navigate. Moreover, when they come across rhetorical questions through the article they read, they are compelled to wonder more, engage more and contemplate more[6].

8. Brevity is the soul of wit

Mark Twain was so right when he said: “I apologize for such a long letter – I did not have time to write a short one.” At all cost, repetition should be avoided. Every word written in the article, or an opinion must only further the motive of the legal scholar. Legal writing must remain free from blind adaptation of worn-out writing habits. These habits could be using complex sentences, redundant vocabulary, and verbosity. Pompous language could dissuade the reader from ever engaging with the writer’s future works on a bad day. Additionally, well intended legalese[7] could leave the reader completely befuddled as to what the author is trying to convey. Write and expand bullet points, exercise brevity[8] through the entire written piece, omit the unnecessary words to keep the written piece more effective.

9. Use action words

It is a weak construction to state that ‘the claimant was not honest’, if the author could have stated that ‘the claimant lied’. Both sentences convey the same meaning, only the latter does it more directly. Endeavour to utilize words which help visualize the act being spoken of. For instance, replace ‘very angry’ with ‘enraged’, ‘silly’ with ‘preposterous’ while keeping in mind the magnitude of the action the writer wants to refer to.

10. Avoid passive voice

The usage of passive voice[9] leads to the sentences becoming winding and long, testing the attention span of the reader. Instead of saying, ‘a crime was committed by the defendant’, the same could be rephrased as ‘the defendant committed a crime’. The usage of passive voice is an announcement of the sloth of thinking process and must be weeded out.

11. Edit, rinse, repeat

Amongst the grave errors committed by writers, instances of misplaced punctuations threaten the credibility of the writer. Performing at least two cycles of editing the written piece, vetting it for errors, for quality of language and for appropriateness of citations add value to the author’s work. It is preferable also to edit the written piece only after the body of the text is ready, to optimize time and ideation of the author. One can never edit a piece enough, but a few cycles of editing are quintessential to do justice to the written piece. Nevertheless, always encourage editorial input by a third-party. Remember, that here is always scope for improvement. Over time, the caricature of the thought process and ideation of the author become evident to their avid readers.

Conclusion

Legal writing is a mirror that is held back at the author who thence learns of their own thoughts and ideas. In doing so, ameliorating legal writing skills help the author identify the evolution of their thought. Legal writing could possibly be done not for an audience, but rather for personal consumption. It is a measure of the author’s patience to express in written words, with adeptness and precision. Legal writing could be a possible representation of the author’s philosophy and remains one of the most important skills within the legal profession today.

† Advocate and Registrar at the International Arbitration and Mediation Centre, Former Partner Advani & Co., e-mail: <advocate.tariqkhan@gmail.com>.

†† First year Law Student, Campus Law Centre (CLC), University of Delhi.

[1] Cardozo, B.N. (1986). Law and literature and other essays and addresses. Littleton, Colo.: F.B. Rothman

[2] Antonin Scalia and Garner, B.A. (2008). Making your case : the art of persuading judges. St. Paul, Minn.: Thomas/West.

[3] Khan, A. (2011). A Compendium of Legal Writing Sources. [online] papers.ssrn.com. Available HERE [Accessed 11 Mar. 2022]

[4]. Hardwick, L.B. (2008). Classical Persuasion Through Grammar and Punctuation. [online] papers.ssrn.com. Available HERE  [Accessed 11 Mar. 2022]

[5] Shapo, H.S., Walter, M.R. and Fajans, E. (2013). Writing and analysis in the law. St. Paul, Mn Foundation Press.

[6] White, J.B. (1985). Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life. The University of Chicago Law Review, 52(3), p.684.

[7] Lifting the Fog of Legalese. (n.d.). [online] Available at: https://cap-press.com/pdf/1549.pdf [Accessed 12 Mar. 2022].

[8] Charrow, V., Erhardt, M.K. and Charrow, R. (2007). Clear and effective legal writing. Austin, Tex.: Wolters Kluwer Law & Business, Aspen Publishers.

[9] Fischer, J. (n.d.). Montana Law Review Why George Orwell’s Ideas about Language Still Matter for Why George Orwell’s Ideas about Language Still Matter for Lawyers WHY GEORGE ORWELL’S IDEAS ABOUT LANGUAGE STILL MATTER FOR LAWYERS. [online] Available at: https://scholarworks.umt.edu/cgi/viewcontent.cgi?article=2041&context=mlr [Accessed 12 Mar. 2022].