Why is legal writing so hard? For anybody who is not a lawyer and doesn’t have to do legal drafting, you’ll just have to trust me – it really is.
Despite its challenges, the most effective lawyers are those who appreciate the importance of great legal drafting, and actively implement strategies to improve their drafting skills.
The best way to do this is not with tricks and gimmicks, but with attention to the fundamentals of good legal writing.
One of the burdens that young lawyers in particular face is trying to get a product (whether it be letter, pleading, brief to a barrister or a submission) that will be signed off by their supervisor.
If there is any frustration in this process, it ordinarily doesn’t arise from changes to the legal points or conclusions reached – it comes from changes to form, rather than substance.
Legal Drafting Requires Knowledge of your Audience
As with many aspects of being a lawyer, legal drafting is not about the drafter – it is about the recipient. That should be the starting point of any document that you are producing.
You’re not normally writing for your ego, your boss (within reason) or your university lecturer. You’re writing for your audience.
Judges, clients, colleagues, opponents, journal readers – they all have different experiences, perspectives, and knowledge. The more you know about your audience, the better you will be able to write for their benefit. Don’t forget that sometimes you will have more than one audience to cater to as well.
Although the concept is broad, here are a few examples of how knowing your recipient is important:
- A sophisticated client (let’s say a bank) will not always require complex explanations of otherwise straightforward tasks. If you are discussing bankruptcy with the debt collection department, you will probably assume a certain amount of background knowledge without waxing lyrical about the ins and outs of the bankruptcy process.
- Letters to “once off” or unsophisticated clients (say an individual requesting advice on a taxation matter) might require changes in terms of the language used. Tone down the complexity, use a different sentence structure and avoid the use of industry specific jargon.
- In Court submissions generally the look and feel of these documents is set. However, the content still needs to be importantly considered. In this case, don’t forget that your job is to persuade, not to advise. You are trying to explain to the Court why it should accept your approach to a particular set of facts when applying the law. Both parties will know the law and both will know the facts that are asserted – each, however, will have materially different submissions. Your job is to make your side of the argument persuasive, while still ensuring you comply with your duties of frankness and candour.
Good Legal Drafting has a Defined Point
By far the worst drafting that exists is the long-winded waffling style of legal letter that we’ve all seen (and occasionally written).
Such a style has one major problem – it lacks a discernible point. Many words are used, and they are frequently eloquent and delightful.
Unfortunately, whatever point we were trying to make in the task becomes lost in a maze of unnecessary ink.
Often, this is a result of the writer not figuring out in advance what the point of the document actually is. If you take a minute beforehand to ensure you know what the primary point of your document, paragraph or letter really is, then you can ensure your drafting is refined and targeted to that end. Of course, a complex document might have multiple points – but that doesn’t mean you have permission to go down every rabbit hole your brain takes you to.
Hot Tip: After you have produced your document, make sure you go back and check it. If anything you have written is not necessary to make your point/s – then take it out.
Have a Defined Structure
Even the shortest document should have a good structure. Moreover, the framework of your product will dramatically impact the effect you have.
Should your primary point be made first, or last? Is an executive summary necessary?
How much detail is needed?
Does X need to precede Y, or is the opposite more appropriate?
The answers to these questions depend upon the nature of the task and its audience. No matter the subject, however, a deliberate and meaningful structure has to be considered. If your words have just fallen onto the page then step back – think – and ensure the big picture is correct.
Words are one of our primary tools as lawyers. We use them frequently, but if we don’t take the time to hone them they will become dull, and we’ll make mistakes.
I’m sure you know that Latin in almost all contexts is out.
But what about jargon? Technical language? Should you paraphrase legislation or quote it?
The talent of the best advocates in the world is that they can take a complex subject and express it in simple terms.
That does not mean using childlike language. It means simplicity of expression, concise use of language and an appreciation of the subtle message that one word will send, where another would not.
It’s harder than it seems. But simplicity will always be more powerful than complexity.
The Best Legal Writing is Authentic
Authenticity of expression (in particular when writing to clients) is a critical component of relationship development.
This is where phrases like “we note that” and “be advised that” really drive me nuts.
Nobody talks like that. Nobody writes like that in the real world.
So why, when lawyers decide to write, do these ridiculous phrases creep in so frequently? In fact, I dislike it so much I made a video about it:
Unless the situation calls for it (pleadings, Court submissions are obvious exceptions) your writing style should be, as close as possible, authentically you. Your clients will love you for it.
How Long Should a Legal Letter Be?
Only as long as it needs to be. No more. No less.
The Best Sentence Structures in Legal Drafting…
This really goes along with both having a point, and simplicity of expression.
Young lawyers have a tendency to graduate with an amazing talent to string concepts together. The result is that within a single sentence I can find 3, 4 or more ideas. If you want to make a point, then make that point.
Then make another one.
Effective Legal Drafting has a “Call to Action”
It’s not just marketing hype – most legal writing needs to end with a discernible call to action.
What is that? It’s the thing that you want the recipient to do.
You might want:
- the Judge to make particular orders
- the other party to acquiesce to your demands
- your client to give you certain instructions.
If I can’t get to the end of your letter and know precisely what will be happening next and what I need to do – then you’ve forgotten a critical element.
I don’t like to get caught up on this (especially since I am a frequent breaker of this rule) but you’ve got to read things before submitting them.
The most common errors are found in the parts that get less attention – the address block, the subject line, the “your reference” parts, the footers.
Beyond that, though – check for apostrophes, plurals, missing words (want to get sued? Try forgetting the word “not” in a bad place).
A little attention to these topics will put the polish into your final product.
Pay attention to what happens to your drafting. Where does the red pen find itself most often? What is unclear to your supervisor? What questions get asked?
Does your client always call you, confused, straight after receiving your letters?
These are all fantastic guides to the places you need to improve your legal drafting, and paying attention to them will see you improve.
Of course, sometimes it will be a style difference and you need to decide what matters more – maintaining your style, or getting something signed and out the door.
8 Core Legal Drafting Tips
My main tips for effective legal drafting (whatever the document might be) are these:
- Know your audience – if you don’t know the client then you might just have to take a stab here, but try and make an assessment of the client’s sophistication and desired inclusions.
- Know the purpose – what is the document for? Is it to advise, update, remind, encourage, exhort, justify, complain or cover the firm’s backside? What ever it is – if you don’t know the purpose of the letter, how can you achieve it?
- If in doubt, use shorter sentences rather than longer ones. A former partner I worked with continually threatened to ban me from using the word “and”. Distressingly, I think he was probably on to a good idea…
- Don’t use words that do not add anything to the letter. Nifty phrases like “we advise that”, “we note that” are all the rage – and are almost always redundant. Primarily these phrases pop up when somebody doesn’t know how to start their sentence and fears that without a nice little introduction the letter will seem abrupt. Sometimes that is right – but normally it is not.
- Assume your document will end up in front of a judge. It doesn’t matter what area of practice you are in, there is always a chance that one day a judge will be looking at your document and assessing how it impacts on a decision. Make this your yardstick – if you don’t want it read out in Court while you are standing there, don’t write it down!
- Don’t use jargon if at all possible.
- Don’t use case citations most of the time. Law school has taught every student that their legal knowledge must be displayed through a ponderous swathe of legal citations. This is false. In fact, ordinarily case citations are an annoying distraction from the content of the letter. Citations do have a place, but should be used judiciously in most correspondence and documentation (Court submissions are an obvious exception).
- Read it all a second time – properly. I confess that I have failed in this on a number of occasions, and I always regret it when the Partner finds a simple typo that I should have corrected which delays my letter going out.
There are some general legal drafting tips for those looking to produce a quality document.
Need any hints or advice on your legal drafting efforts? Let me know in the comments – what do you struggle with?