Legal writing is quite a tricky thing to master. In particular, as I’ve written before, young lawyers can face a lot of challenges making the transition from student to lawyer in terms of their legal writing style. Today we’re going to consider how purpose and audience affect your legal writing.
Legalese – A Matter of Understanding
Younger lawyers who work with me must constantly roll their eyes. I am forever handing them back draft letters and telling them they got the tone wrong.
What probably frustrates them more than anything is that on one occasion I’ll hand back the work and tell them “it’s not nice enough” and an hour later I’ll hand them back something on another file and tell them to toughen it up.
It probably drives them batty.
There is, however, a method to my madness. You see, avoiding legalese in legal writing is not a constant – it’s about knowing two variables: purpose and audience.
For any piece of legal writing to work well, it has to meet it’s purpose. The starting point there is that the drafter needs to understand the purpose of the communication before they start.
Knowing that purpose assists in a number of ways. Firstly, it allows for a more succinct piece of writing. Lawyers are known to waffle, and sometimes it’s simply because they can’t decide what their core message is. Determining the core message of the communication allows for a targeted and approach to the drafting. As waffling is a critical ingredient to legalese (the more words the better, remember) if you can avoid it you’re a long way towards the path.
So in all but the most simple letters, try to develop a habit of taking a minute to ask yourself what the point of the letter is. That will allow you to shape up any legal writing in a way that communicates that purpose better. It also allows you to focus your own efforts so you’re not wasting time on things that don’t matter.
Finally, knowing the purpose will mean that you don’t get as many letters back with lots of red pen on them, which is always nice.
The second, and probably most important, part of legal writing is to understand your audience. Different recipients will have different needs when it comes to your writing. A sophisticated client might need a sophisticated letter – perhaps only because they don’t perceive any value in letters written in very plain language (although less common these days). On the other hand, if you’re trying to explain subtle parts of capital gains tax to an unsophisticated client, you’re going to need to take a lot of care with your structure, language, sentences and word choice.
Knowing the audience for your writing also allows you to determine the length and frequency of any explanation that is required.
Let’s take an example. This site is primarily read by law students and lawyers. Therefore, I write in language that I expect will be well received by most people in those categories – generally well educated, good with words, and used to long sentences through their own legal writing efforts. What I write could be considered “legalese” by some readers, but not necessarily others. I suspect my target audience is not at all confused by my language.
However, if this site were devoted to less well educated people or subjects likely to be visited by other demographics, I would use different sentences, different language, and probably a very different approach to the length and complexity of the articles I write.
I should stress that’s not to say you should become arrogant. The fact that your client is not legally sophisticated does not mean they are stupid. It simply means that they don’t deal every day with the things you do, and so you need to use language that they will receive well and readily understand. Don’t forget that legalese isn’t a “better” language – it’s just a different one. What’s really happening is that you’re getting lost in translation.
Avoiding Legalese – consider Purpose and Audience in all Legal Writing
This week, why not try it out for yourself. Despite the fun we’ve had this week celebrating legalese, most of us don’t want to baffle our clients with our language. So every writing task you are given, ask yourself the two questions I have suggested here. See if you can start to appreciate why the same message to different audiences can be drafted in different ways – similarly, two letters to the same client might end up very different if the purpose of the letter changes.
You can find out the fundamentals of legalese here.
Check out the rest of the Legalese Series:
- Celebrating the Incomprehensible
- An Exercise in Legal Drafting and Legalese
- 8 Reasons to Improve your Legalese (Podcast)