One of the things that many recently employed graduates and newly admitted lawyers struggle with is their legal writing style.
In my view there are a few reasons for this, but one major contributor is that writing university assignments and Practical Legal Training assignments are designed for a completely different purpose and with different factors in mind than any form of actual legal writing in practice. In short, university has trained you to write in legalese. It has not, however, embarked on proper communication skills training.
With that in mind, I thought it might help a few people out if I set down some thoughts on key differences between writing for academic purposes, and legal writing for commercial purposes. You see, legalese has no place in practice (except for fun). If you want to improve your communication skills you need to ensure that your legal writing is up to scratch.
DISCLAIMER: lawyers have opinions about these things. The ones below are mine. Your boss might have others.
1. We Don’t Care How Much Law you Know
The purpose of an academic assignment is fairly simple: demonstrate your knowledge and application of the legal area in question. The questions and fact scenarios are specifically framed to allow you to do that. In fact, the entire scene is there to make you write in legalese. That is NOT the purpose of any legal writing that you do for a client. Internally, you might have a research memo or something which requires this, but it’s the exception rather than the rule.
People, clients in particular, usually want only one thing: the correct answer.
Of course you need to be prepared to back it up and explain how you got there, but don’t give a client a 20 page advice where the answer could be said in 2. Using more words than is necessary in a written advice is a core component of legalese.
Example: A client brings in a contract dispute and wants to know if they have a case. As a student in “assignment mode”, you would write about offer and acceptance, consideration, intention to create legal relations and the like. You might cover off on estoppel as well, just to show how much of a gun you are. As a lawyer, if you handed me an advice with all those headings and they weren’t relevant to the issues I would throw it in the bin and make you start over.
To advise a client you need to hone in on the relevant questions that actually mean something. Then you need to answer them. The client doesn’t care about periphery, they want to know what the actual issues are, what their prospects are of getting what they want, and generally how much it’s going to cost. In our example, the only time you mention offer and acceptance is if that is an ACTUAL ISSUE.
2. Time is Of the Essence
For all intents and purposes, for assignment work you have an unlimited amount of time. I’m not talking about the period between the task being handed to you and the date it’s due (or the part when you start at 10:00pm the night before when it’s due 9:00am the next morning), I’m talking about the actual number of hours you can spend on it. There is no measure on assignment work which allows you to judge whether you have worked efficiently or productively, or whether you have just stuffed around for 10 hours in a row to produce something that could have been done in 2.
Legal practice is less forgiving. You DO have a time limit. Even if you aren’t told how much time to spend, there is still an expectation in the mind of the person who asked you to do the task (whether it be partner, senior lawyer or client).
Why? Because generally in law firms time is, quite literally money. If you spend 10 hours on a 2 hour task then you are costing somebody 8 x your hourly charge out rate. Maybe it’s the client, maybe it’s the firm – but somebody pays for your inefficiency. This is true irrespective of how your firms bills. You cost money now. Your time has an associated cost, and an associated value. Don’t underestimate either on the basis that “it’s OK they can just write it off anyway”.
How can you overcome this? Know exactly what you are doing. Know how you are going about it. Plan specifically how long you think it should take to accomplish it. If it’s a novel task that you have no idea about, then ask. It’s well known that we will fill up whatever time we allocate to a task – so allocate what is reasonable, then get on with it.
3. Legal Writing is just trying to write like a Normal Person
Nothing annoys me more than reading something written in legalese for a client. It’s infuriating. The days of “we remain, dear sir, your faithful servant” and the “15th ultimo” are gone. Be grateful for that, and make sure you improve your communication skills at least enough to get you within 100 years of now. Just because Lord Denning wrote in a particular way doesn’t mean you can pull it off.
I’m not talking about your vocabulary here. I’ve been known to use some complex words from time to time (although sometimes that’s just for fun). I’m talking about waffling sentences that don’t mean anything, and unnecessary formality which adds nothing to the content of the communication. Just say what you need to in a civil and understandable way. The trick of legal writing is to sound like you’re not a lawyer. Legalese is the domain of pretenders – you are a real lawyer.
4. Avoid Redundancy
I have some pet hates here, but I’m not going to list them. Instead I’m going to say this: if a word or phrase adds no meaning to the communication at all, then remove it. Try it one day; just cross something out and see how much more snappy your letter looks without it.
A few people become concerned here that letters which are short and sharp sound impolite. I disagree, however it is a matter of knowing your recipient, and adjusting accordingly. In my experience most clients, other practitioners and judges appreciate somebody who gets to the point rather than waffling on.
Legal writing has no place for excess fat – it just costs people money and time.
5. Strike the Right Tone
This can be a hard one when you’re not necessarily writing to your own clients, but you need to learn which tone is appropriate for which recipient. Sometimes the context can assist: for example, emails are normally less formal than letters or faxes.
Often the tone is about the nature of the task. Advice work is generally formal, whereas a short note seeking instructions or passing something on may not be. You need to be polite, but to the point.
Bonus Tip: Sometimes Writing Won’t Do
One of the biggest challenges for young lawyers is to learn when to pick up the phone rather than send an email.
If it’s internal within your firm, phone or face to face is almost always better unless there is a good reason not to. If you are disagreeing with a client, or admitting to a stuff up, then phone is probably better than email or letter because you can read the tone of the conversation and adapt accordingly.
If the news is bad, often a phone call is better to raise the topic followed by a letter with the necessary detail. A phone call can soften bad news, communicate sympathy or empathy, respond more quickly and gauge reaction better than an email. The times I have chosen not to do this and gone the cowards path of sending an email or letter, have almost always gone less well than when I’ve started with a phone call.
So with all these tips about legal writing, one of the best tips is that sometimes writing isn’t the best mode of communication. I’ll bet you don’t speak in legalese, do you?
Hop to It Then
So – off to another week now. As you write this week try to think about these tips and how they might help sharpen up your skills in all aspects of legal writing. Hopefully they will help minimise red pen on your letters.
Got any more tips that you’ve learned yourself? Let us know in the comments.