Should A Lawyer Have A “Writer’s Mind”? [Part - 1]
Quite often we hear of the phrase “you write like a lawyer”. Clearly, lawyers are associated with intense, dense, jargon- ridden, complex content. The truth is legal writers are faced with more challenges than other writers.
The challenge lies in writing cogently and with persuasion on complex matters with high stakes for readers who are not entirely familiar with the nuances of legal writing.
Not only do lawyers have to focus on the law, they also have to “think like a writer”.
Although it is common for lawyers to not think about their writing as clearly as they think about the law, legal professionals can no longer afford to ignore the trend towards clear language bereft of jargon. ‘Clients demand it, and courts reward it’ is the new mantra.
Lawyers, as also legal scholars and law students, draft a wide range of written matter in the form of briefs, opinions, contracts, letters, e-mails to name a few, and hence practical advice and tools for improving their writing is always welcome.
In today’s sophisticated law practice, thinking clearly and mastering the usual writing tips is not enough. What is needed is the understanding of principles that govern how the human mind absorbs information, and then apply these principles while drafting – and, even more importantly, while editing!
The twin task of dealing with the complex legal subject matter and then shaping it into a crisp piece, with which the reader can establish a connection without getting lost in the legalese, is challenging to say the least. For meeting this challenge, a legal writer has to focus on three key questions: [Thinking Like a Writer- A Lawyer’s Guide to Effective Writing and Editing by Stephen Armstrong and Timothy P. Terrell (2003, second edition)].
- How do you think: Law school and the subsequent years of training train to “think like a lawyer”, i.e., be logical, meticulous and accurate-hallmarks of the practice of law. What gets lost in the process is clarity, as analysis takes precedence. This thought process results in language being used in a manner that is alien verbiage for a layman. Thinking clearly is as important as thinking rigorously.
- What is your writing like: A critical skill for any writer, especially a legal writer, is being able to write clearly about complexities. Considering that the readers can be impatient, writing must be cogent. In other words, the writing must be structured in such a way that it focuses the reader’s attention to the crux of the matter.
- Are you being practical and engaging: While pursuing any legal document, the reader primarily has one question on his/her mind: “how will it help my situation?”The writing must be practical and valuable from the reader’s perspective. This is possible only if the document is engaging and caters to the reader’s objective(s).
Thinking like a lawyer vis-a-vis thinking like a writer
Regardless of the criticism that legal thinking produces obfuscatory prose, the ability to think like a lawyer gives clear advantages over other writers. The general perception that legal reasoning is merely applying the “right rule” to the “right situation” does not give the complete picture. Besides the knowledge of “legal rules” and/or “legal principles”, what is also required is the ability to apply specific and general propositions, both in the writing and in the law.
Specific or particular rules can be applied appropriately only if they are placed in the context of the broader principles. Lawyers have to rely on this interplay at all times for applying the law correctly in the face of conflicting or even lack of precedents.
While years spent in the law school give a detailed understanding of how the vast array of statutes, regulations, precedents are structured; from a writing perspective, the chances are that a lawyer’s approach is not coherent and comes across as a bag of random advice(s). This lack of coherence in legal writing can be disastrous. While working on a draft, the failure to (a) organise thoughts; and (b) pay attention to stylistic choices, means that most lawyers do not improve as writers. How to think about the law comes naturally to a lawyer, but for bringing the same acumen to the writing, a lawyer has to reflect and understand what exactly “thinking like a writer” entails.
When one learns to think like a writer, almost everything that one encounters takes on a new dimension and has a profound effect on the work. In what way does a writer think differently from others? A writer by habit is more observant to the surroundings, including people. This ability is of immense help in developing new ideas. Everyone has to pay attention to surroundings in their day-to-day lives, but most of it is at a superficial level. In that sense, a writer does not just observe “what's going on”, he/she also actively looks for the explanations.
This ‘enquiring mind” of the writer - that of asking questions -enables him/her to raise those very questions in the work and seek their answers.
Observing the surroundings, remembering details, developing questions and answering them are all an intrinsic part of a writer’s thought process.
- Think critically
Writers are also able to identify and challenge assumptions that others either ignore or take for granted. Critical thinking skills are needed to challenge assumptions. Reading philosophy is helpful in this regard.
One can also start by looking for the possible reasons why ordinary things happen as they do. Writers look for reasons beyond what is apparent on the surface. Regardless of what the subject of writing is, reading about history helps to expand the understanding of social development. For thinking critically, it is especially important to identify and challenge our own prejudices – deep-rooted ideas which are uncomfortable to examine. Confronting those can lead us to potentially fresh ideas. It may not change your point of view, but it will help you understand the reasons for it more fully.
Ø Be sensitive
Writing can be an emotionally draining exercise/ experience. It is this emotional sensitivity which gives depth to the writing. Most people try not to be too affected by the emotional impact of the world (around them). A good writer, however, needs to break down such defences(s). This can be particularly difficult since social norms brand “being emotional” as a sign of weakness. But a good writer knows how to be sensitive without being overwhelmed. At times, writers use their writing as an outlet to release stress in other areas of life. One thing is certain - writers live and breathe their writing.
Cultivating Effective Written Communication Skills
The written word is a critical tool of the legal profession. Words are used to advocate, inform, persuade, and even instruct. The evolution of an astute legal writer involves going through a process of “intellectual growth”. First and foremost, a lawyer knows that what appears to be a simple issue can, in fact, be a complex one. Hence, he/she is first and foremost concerned with logical reasoning and accuracy. Coherence and persuasion in the writing is a secondary consideration. And to be coherent and persuasive, a lawyer has to learn to think like a writer. “To think like a writer” means thinking from the perspective of the reader. In other words, the reader must be able to easily understand the approach adopted by the writer.
Capturing the reader’s’ attention
Legal writers know that despite the earnestness of the readers, they will not pay undivided attention to every page of the document, unless the writing is able to establish a good first impression- that the document is worth the effort of reading! The first task of a good legal writer is to get the reader’s attention by relating it to the latter’s situation/problem. The second task is to approach the writing in an organised manner. A document of any length and importance should establish some key aspects:
- It has something relevant to offer.
- It understands the reader’s expectations.
- It speaks to the reader in a language he/she understands.
- It effectively sums up the point.
For many readers, ordinary clarity - clarity based on logic - is not enough. What is needed is “super-clarity”- clarity so obvious that it is revealed to the reader at a first glance.
This is because most readers experience problem in grasping unconnected details.
They will remember details better if they fit together to form a coherent pattern of facts, logic and the objective. They want the document to unfold in a methodical manner - be it a legal analysis or stating of the facts. Super-clarity requires, (a) each sentence to be clear; as well as (b) the entire document to be organised.
A.Clarity can be created in each sentence by using some basic techniques, viz:
- Be precise/concise.
- Avoid jargons/legalese.
- Use active, not passive voice.
- Eliminate nominalisations and use strong action verbs.
- Write short sentences.
(i.i) Precise/Concise [The art of writing concisely has been discussed in detail in section II.].
A legal document which conveys the message in a limited space is more useful than the one which runs into several pages. Stretching your sentences and paragraphs with unnecessary words or pointless content only obfuscates what you want to convey.[ See Legal Writing Mistakes to Avoid, Richard Heinrich, One Legal, 2016,] Writing can be streamlined by following a few rules:
- Choose active voice, over passive.
- Use concrete rather than abstract language.
- Cut out all word-wasted idioms which are pervasive in the practice of law (for instance, “he was aware of the fact that” instead of “he knew”).
“Any profession has its jargon… I can’t bear it. I don’t even like legal Latin. If you can say it in plain English, you should,” Ruth Bader Ginsburg, US Supreme Court Justice, once famously said.
In The Elements of Legal Style, Bryan Garner writes: “In legal writing, jargon consists mostly of stilted words and phrases — blemishes, not graces — such as aforesaid, arguendo, hereinafter… Most hoary legal phrases have little or no substantive purpose. They sometimes mar the substance by suggesting precision where in fact an ambiguity lies.”
A simple way to eliminate legalese is to stay away from redundant couplets. Don’t say “null and void” when just “null” is enough. Don’t write “convey, transfer and set over” when just “convey” suffices. Some legalese does exist in statutes and should be thus retained, but the vast majority practically serves no purpose. Cut them out from the writing.
(iii.i) Active and Passive Voice
It is advisable to use active voice in legal writing. [See amongst others, The Legal Writing Handbook, Laurel Currie Oates & Anne Enquist, 5th edition, 2010] When writing in the active voice, the subject of sentence does the acting. In contrast, in the passive voice, the subject is acted upon. Since the active voice is clearer and more concise, legal writers are suggested to use it. Moreover, passive voice reverses the natural, active order of sentences.
Here is an example:
Passive voice: It can be determined that the rule is violated by prosecutors when they fail to research adequately. (17 words)
Active voice: Prosecutors violate the rule when they fail to research adequately. (10 words)
In some other forms of passive voice, the writer leaves out the subject, expecting the reader to fill in the missing information:
Passive voice: Every week, all confidential material was shredded and discarded. (But who shredded and discarded the material?)
Active voice: Every week, the company shredded and discarded all confidential material.
(iv.i) Nominalisations and Action verbs
The use of nominals (nouns with verbs inside) “is perhaps the best sign of poor legal writing” [Refer Eliminating Nominalizations/Buried Verbs in Legal Writing, Matthew R. Salzwedel, July 2012.]. Nominals are hard to read and make sentences longer.
A nominalisation is a verb that has been turned into a noun. For instance, as nominalisations, the verbs “state” and “assume” become the nouns “statement” and assumption.” One of the best ways to improve writing, legal or otherwise, is to use active verbs instead of nominalisations.
Garner’s Legal Writing in Plain English [Bryan A. Garner, First Edition, 2001] and Garner’s Advanced Legal Writing & Editing [Bryan A. Garner, Seminar Textbook, 2017] set out a list of nominalisations and the action verbs they should be replaced with. Some of these are given below:
- In violation of — violate
- Provide an illustration of — illustrate
- Undertake the representation of — represent
- Furnish an indemnification to — indemnify
- In mitigation of — mitigate
- Conduct an examination of — examine
- Make accommodation for — accommodate
- Make provision for — provide for
- Make a contribution — contribute
- Provide a description of — describe
The words in bold are preferred to the phrases that precede them because the latter are shorter and more direct (action verbs).
(v.i) Short sentences
While some sentences can be shorter and some longer, the average sentence length of a readable piece of legal writing should not be unduly long. The notion that long sentences are intellectual and short sentences reflect a simple mind is a myth. In fact, short sentences (and paragraphs) reflect efficient use of the language by the writer. A long, well-written sentence (or a long, thoroughly developed paragraph) is perfectly valid, but using a lot of both makes the document harder to read. For a writer, it can be hard to be brief and clear or be ‘succinct’, but from the reader’s perspective ,it is ideal!
(B) Organising the document
Organisation is the key to successful legal writing; a proper structure guides the reader and promotes readability.
The best documents contain a structured table of contents, with each major topic heading discussing a different issue or making a different point. Similarly, under each major heading, each minor heading should support the major point and likewise for every sub-heading under a minor heading.
Further, introducing the subject in an introductory paragraph; using transitional phrases like “moreover, “furthermore,” “however,” “in addition,” etc. between each paragraph; introducing each paragraph with a topic sentence, and limiting each paragraph to one topic and summing up the message with a concluding sentence, make the document methodical. Avoid the unrestrained approach of making a point over and over again in every section of the document, as it makes the writing cluttered.
There are certain guiding principles which help a legal writer to produce a concisely written work. These tips are extremely helpful in mastering the art of writing concisely [Refer to Concise is Nice! An Aid for Writing Concisely, Writing Center, Georgetown University Law Centre, 2010 Update; Conciseness in Legal Writing by Lisa Mazzie Hatlen, Marquette University Law School (Wisconsin), 2009.].
For writing concisely, the writing style has to be restrained/controlled. Choosing a direct and lucid style reduces volume. Having said that, writing a brief document demands more than just a concise writing style. The sheer scale or volume of the document can be also controlled through the scope and depth of the analysis (in the document).What also considerably affects the length of the document are the choices made with regard to the scope of analysis (i.e., choosing relevant and less relevant topics) as well as the depth of analysis (i.e., choosing to devote significant space to case facts and reasoning) in the document.
Concise writing through stylistic choices
- Use concrete language instead of abstract language. Abstract language gets to the point only after going around in circles! While abstract language refers to intangible and vague concepts; concrete language is plain and direct. To give a simple example:
Abstract: To excel in law school, you should consider working hard on the assignments received and preparing your mind for the rigors of the law.
Concrete: To excel in law school, you must attend every class, do your reading, and take notes.
- Use active voice, instead of passive voice. As also discussed in Section I, using passive verbs is equivalent to using “wasted words”. The sentence should focus on three key elements, the actor, the action, and the object of the action. For instance, “the evidence was suppressed by the court” is passive, and “the court suppressed the evidence” is active. In another example, "In 1998, only ten executives were covered by Article 10" is passive. To turn this into active voice, the real subject (i.e. Article 10) must be made the actor: "In 1998, Article 10 covered only ten executives".
- Keep subjects, verbs, and objects together (preferably at the beginning of the sentence). Readers tend to look for the subject, verb, and object of a sentence to make sense of the document. Using descriptive phrases or combining several ideas in one sentence, runs the risk of separating these parts of speech, making the writing hard to read. Make two or more sentences out of what was one, if needed.
- Omit needless words/phrases. Words which fall into this category include ‘actually’, ‘really’, ‘virtually’ and ‘certainly’. Phrases like ‘it is important to note’, ‘it is significant that’, ‘it is obvious that’, ‘it may be argued that’ are also unnecessary. While ‘an adequate number of’ can be simply changed to ‘enough’; ‘for the reason that’ and ‘to the effect that’ can be changed to ‘because’ and ‘that’, respectively.
- Avoid nominalisations. Lawyers tend to not use verbs to describe regular actions, and instead use nominalisations. A nominalisation is a verb that has been turned into a noun. For instance, act becomes ‘take action’, assume becomes ‘make assumptions’, and conclude becomes ‘draw conclusions’.
- Avoid idioms which contain superfluous language. While the reader may understand their meaning, such language takes up extra space and adds little value. “He was aware of the fact that” is verbose and “he knew” is concise.
- Avoid using a string of words with the same or nearly the same meaning. Using what is called a “redundant synonym” takes up additional space in the sentence, besides confusing the reader. The readers of legal writing try to look for meaning in each word and phrase, but this exercise will be strained if the writer unnecessarily uses redundant synonyms, like ‘last will and testament’; ‘confessed and acknowledged’; ‘made and entered into’; ‘convey, transfer, and set over’; etc. Although some of these examples are traditional legal phrases, they are nonetheless, redundant.
- Avoid compound constructions, i.e., three or four words if they can easily be replaced with one or two words. Lawyers have a tendency to use dense language.
For instance, “at the point in time” can be replaced with ‘then’; “by means of” with ‘by’; “in accordance with” with ‘under’, to name a few.
- Avoid excessive case quotations: Excessive quoting of cases interrupts the flow of the content. Paraphrasing of case quotations is advised.
- Avoid expounding:
Use short sentences. A concise writing explains “complicated ideas simply”. Long sentences/passages make writing hard to understand. Such sentences are not clear as they club many ideas together, making little sense to the reader. It is best if reading does not become tedious.
Use simple words instead of fancy words: Fancy words like “predicated and initiated” can be replaced with “decided”; and “relative to” with “of”.
Delete words that have little or no meaning: Some examples are: ‘in the process of’; ‘it is clear that’; ‘personal opinion’; ‘actually’ etc.
Change negatives to affirmatives. Avoid writing in the negative; write in the affirmative. ‘Not different’ should be ‘similar’; ‘not many’ should be ‘few’; ‘not include’ should be omitted.
A word of caution: Writing concisely does not mean downsizing the document. Important ideas should be expressed in sufficient detail to ensure reader’s understanding. Once that is done, cut down the unnecessary content from your writing.
Illustration of concise writing [See Legal Writing in Plain English: A Text with Exercises, Bryan A. Garner, 2001]
To be Continued...
Richa has over 10 years of experience in legal writing and editing. She completed her Masters (LLM) in Commercial Laws from the London School of Economics and Political Science and is a qualified Solicitor in England and Wales. Richa started her career with SNG & Partners, an established pan India banking law firm. She went on to pursue her keen interest in legal research and writing as the Senior Legal Editor with LexisNexis India. Her subsequent stint as the Consulting Editor of Lex Witness, India’s first Magazine on Legal and Corporate Affairs, honed her analytical understanding of legal subjects. She was also involved with setting up of Live Law. A ‘hands-on’ mother of two young children, Richa is currently based with her family in Singapore.
The author would like to thank Prof. Shamnad Basheer for his support and encouragement.