Should A Lawyer Have A “Writer’s Mind”? [Part - 2]
Getting Reader’s Attention
Lord Denning, a celebrated British jurist, once famously said:“No matter how sound your reasoning, if it is presented in a dull and turgid setting, your hearers—or your readers—will turn aside. They will flick over the pages. But if it is presented in a lively and attractive setting, they will sit up and take notice. They will listen as if spellbound. They will read you with engrossment”.
It is believed that lawyers have the privilege of a captive audience because the reader(s) cannot refuse to read documents/correspondence simply because it is dull.
But to be honest, no document can guarantee to capture and hold a reader’s attention from its beginning to its end, unless it “engages the reader”.
Can lawyers create prose similar to other quality non-fiction writing—the one which captures and holds readers’ attention, even their imagination? Answering this question calls for a change in “how lawyers think”.
Understand Your Readers
Focusing on the substance comes instinctively to lawyers. But prior to that, focus on what tends to be ignored or is put on the back burner, i.e., the reader’s expectations and requirements. For the readers — clients, judges, other lawyers — taking out time to read and contemplate is not always easy. Step into the reader’s shoes as you draft and edit. Think about their time demands and their goals, and if you can meet the two through informative, coherent and creative writing, then it will go a long way in capturing their attention.
Credibility – Reader should trust you
A sure-shot way to lose the reader’s attention and interest is to give a reason to distrust (the writer). Since a writer’s credibility is paramount, do not assert something that is not adequately supported. Quote accurately. If there are any loopholes or weaknesses in the case, acknowledge the same and deal with them. Omitting key facts can backfire because the writer‘s credibility suffers if the reader gets the sense the writer is hiding something(Legal Writing: Process, Analysis and Organization, Linda Edwards (5th ed. 2010), 225–26).
Tap your creativity
Legal writing belongs to that unappealing category of “non-fiction prose” where laws and facts cannot be conjured or made up. But it does not mean that legal writing should be dry. Even in this genre of “structured writing”, it is possible to create something original. “Creativity is the power to connect the seemingly unconnected”( William Plomer) and connecting the ‘seemingly unconnected’ is integral to “thinking like a lawyer”.
In legal writing, the process of relating concepts and facts to one another is a creative process. Once you treat your legal writing as an act of creativity, your engagement and enthusiasm will reflect in the writing, thereby helping to hold your reader’s attention.
To capture and hold the reader’s attention, the writing must engage the reader. There is substantial literature on “what makes writing engaging”( What is "Good Legal Writing" and Why Does it Matter?, Mark Osbeck (2012) 4 Drexel Law Review 417 – 467).
As with other types of writing, using a variety of sentence structures can make the text more engaging. Repetitive writing is tedious. What is needed is ‘appropriate variation’ in the pattern of the sentences, with smooth transitions between sentences [For creating a sense of flow in writing (i.e., cohesion between sentences), see Style Lessons in Clarity and Grace, Joseph Williams & GregoryColomb, (10th edition, 2010), at 68–69].
Another aspect of engaging the reader is individuality in writing. In legal writing this can be constrained due to professional tone and uniformity in the style of writing adopted by lawyers, but legal writers need not stick to excessively rigid style.
Legal writing can also be made engaging by incorporating humour, especially for “softening the blow of a harsh statement”. The use of humour should, of course, be occasional and in the right context. Sometimes the subject matter may make humour inappropriate or in bad taste [See Judicial Humor: A Laughing Matter?,Marshall Rudolph, (1989) 41 Hastings Law Journal 175, 179 (lamenting the excessive and inappropriate use of humor in judicial opinions)]. In such a situation, humour is counter-productive, for it has the effect of disengaging the reader.
An equally important aspect of engaging writing is the writer‘s ability to tell a compelling story. Law is inherently tied up with real life events of real people. Legal documents do not just concern arcane legal concepts; rather, they concern the problems and challenges people face in their everyday lives, individually or collectively [The Plot Thickens: The Appellate Brief as Story, Kenneth D. Chestek, (2008) 14 Legal Writing 127, 130. “Law, and the legal system, should be about people. It is a tool to enrich and order peoples’ lives. So why do legal briefs focus so much on the abstract law and overlook the people?”)].
The legal writer who can effectively communicate factual information through narrative is more likely to engage the reader‘s attention than one who merely states the facts in cut-and-dried manner.
A growing body of literature shows that most people, including judges, make decisions more readily on the basis of stories that they can relate to their own experiences than they do through argument, statistics, or logic [What is "Good Legal Writing" and Why Does it Matter?, Mark Osbeck (2012) 4 Drexel Law Review, 450].
A legal writing which appeals to the reader also goes beyond the three fundamental qualities of clarity, conciseness and persuasiveness. This separate aesthetic quality has been referred to as “elegance”.
We cannot deny that there is something about the modulation of the sentences, the collocation of the words, and the clarity of the descriptions that appeals to our aesthetic sensibilities, even if the same is difficult to analyse.
However, the questions of ‘when’ and ‘to what extent’ elegance is appropriate in legal writing has to be considered. It is easy to appreciate the value of elegance in a Supreme Court judgment/ruling, especially on a matter of social significance.
But trying to achieve elegance in routine legal documents is an entirely different matter. In the majority of legal writings the sole aim is to convey complex information to help the client or the senior lawyer to make quick and appropriate decisions.
Hence, evaluate the context of a given document for determining whether elegant writing is appropriate. Keep in mind that the client is least interested in bearing extra cost for a legal document that is ‘elegant’ or ‘literary’.
Having said that, a lawyer need not consciously control his natural aptitude or flair for elegant writing.
Occasionally, for instance in a brief/document concerning a matter of larger public interest, the context may be appropriate for a legal writer to draft the document with a touch of elegance!
To sum up, keep in mind your reader at all times. A writing that is compelling, reader-friendly, and educates the reader on the issue at hand - is the kind of writing that commands the reader’s attention. And capturing and holding that attention is a major, necessary step toward “persuasion”.
Art of persuasive writing
The goal of persuasive legal writing is obvious-the reader must adopt the lawyer’s position. What are the ingredients of persuasive writing? Is persuasiveness a single quality/trait, or a combination of many things coming together?
There is no "quick fix" when it comes to persuading a court [Five Steps towards Persuasive Writing, Evan Schaeffer, Illinois Bar Journal,6/98].
An important step is to ‘adopt the right tone” in the writing. Tone is a difficult concept to define, but essentially it involves ensuring that the subject matter of the document and writing style are in sync, so that they reinforce each other‘s effect on the reader [For “tone in legal writing”, see Using the Elements of Rhythm, Flow, and Tone to Create a More Effective and Persuasive Acoustic Experience in Legal Writing, Bret Rappaport, 16 (2010) Legal Writing 99–107].
The tone could be objective, respectful, professional or condescending, self-righteous and even bitter!
But bear in mind that the reader must not be alienated. A good start would be the one which rationally states the position. After all, an objective, rational tone is usually the most persuasive.
For example, a plaintiff‘s lawyer sends a demand letter to the defendant that is clear and concise, but its tone is too matter-of-fact or even friendly. The letter would engage the reader better if its tone was more serious so that it evoked concern on the defendant‘s part as to the consequences of not settling. Here, the tone interferes with the content of the letter, and the writer‘s message gets diluted.
It is said that law is akin to a story. Hence, the writing too needs to tell a persuasive story. A story which should make any reader listen attentively to your side. It should be persuasive without being argumentative. But is it possible to be persuasive without being argumentative? The answer lies in the secret to persuasive writing [The Art of Persuasive Legal Writing, James McElhaney, The ABA Journal, January 1996].
Firstly, know that the reader of your writing is primarily (a) intelligent but ignorant (and if the subject matter is complex, the reader will probably be learning about it for the first time from your writing); and (b) hard pressed for time. The reader can easily be distracted from, or disinterested in, your papers. Therefore, your writing cannot be confusing, or ambiguous or aggravating [Persuasive legal writing starts with knowing the reader, Ted Pelletier, www.plaintiffmagazine.com, December 2014].
Secondly, facts (as opposed to opinions) convince the reader. Don’t interpret the facts, state them. Understate rather than overstate. Avoiding interpretation/characterisation is one of the keys to good legal writing/editing.
While editing your draft, cross out every modifier—adjective and adverb—which you can. While nouns and verbs are essential, adjectives and adverbs are often unnecessary and get in the way of conveying the message. Legal principles only have meaning in the context of facts i.e., actual events. A lawyer is expected to tell the story in a way which “compels” or persuades the reader to apply the principle/rule the right way.
Thirdly, make use of common sense. Some ideas can sound incomprehensible if they are written in a grandiose manner. For instance, “authentication is no cure for irrelevance” can be said more clearly in common language viz., “it does not matter how reliable the proof is, if it does not have anything to do with the case.”
Let’s look at some key tips for persuasive writing:
The reader should not be made to look for meaning in the writing. There are some pointers which can help in avoiding ambiguity:
- No unnecessary words: “Unnecessary words waste space and the reader’s time, and they make strong writing weak.” [Gary Blake & Robert W. Bly, The Elements of Technical Writing 65 (1993).] Writing should be shorn of all unnecessary details, words and redundant language.
- Choice of words: The word used should mean what the writer thinks it does! If the writer is uncertain, chances are that the reader would be too. If the reader is expected to decipher or look for the meaning of words used, it will slow down his/her reading.
- Be wary of words with alternate meanings: To give an example, legal writers like to use the word “as” to mean “because”: “As the court has already ruled on this issue, the motion should be denied.” Interestingly, the word “as” also means “at the same time.” The reader’s first impression of the sentence could easily be “At the same time the court was ruling….” Use of such words/expressions may affect the reader’s comprehension and should be avoided.
- Use lists, numbers etc: Thoughts and (by default) writing must be organized. If there are four specific reasons why your position should prevail; then specify that and list the reasons. After listing, discuss each reason under a separate heading and/or in a separate paragraph.
The thumb rule is that the reader should not be made to “dig through other documents” to find something that the writer needs the reader to see.
- Cross-references: It strains the reader to sift through multiple documents. Don’t make the reader go to a different document to find another citation there and then open a third document to find the evidence. Cross-reference everything.
- Internal references: Often in lengthy documents, the writer wants to refer the reader to something that has already been mentioned, or will be discussed later. Such references should be precise. “As shown above” should be “as shown in Part A above,” or “on page 2 above.” The reader must know exactly where to look for the matter referred.
- Cite responsibly: When the legal writer cites an authority in support of his position, the purpose of the citation is to allow the reader to find that support. Don’t expect the reader to find its exact location. Give precise citations. For instance, for case law, give a precise citation to the page and if needed, the paragraph.
Don’t leave out analysis
Persuasive writing must not rely on the reader to bring important issues to the table. Legal writers make the mistake of assuming that the reader already knows the basics and hence quickly move on to the specific nuance(s) of their issue. In reality the reader can understand the nuance only if he is aware of the underlying foundation.
Take the time to orient the reader about how the law will apply to his/her case. For example: “this issue is governed by a statute; the statute’s key language is in subdivision (b); that language has been interpreted to mean X by several cases; but a recent case reached a different conclusion”.
Such an explanation builds a foundation which benefits the reader. Legal writing which gives the reader the facts and the governing law, but fails to analyse how the law applies to his/her situation is equally flawed.
Citing the applicable language of a governing case but failing to show how that language applies to your case, is not acceptable either.
No matter how clear it seems to the legal writer, the analysis should not be left to the reader.
Persuasive writing is a skill that is mastered through practice. A good starting point is to edit your own writing. Let go of the instinct to just get something written and be done with it.
The first draft is only the beginning. All genres of writing improve with careful, focused editing. Edit not just on the computer screen, but also on paper. As you edit, cut away anything that is not needed. Go a step further and have your writing edited by someone else.
Persuasion is said to work the best when it is by and large invisible [The Art of Persuasion, Thinking Like a Writer- A Lawyer’s Guide to Effective Writing and Editing, Stephen Armstrong and Timothy Terrell, 2003].
It is not always necessary for persuasion to be forceful, that of ‘forcing your point of view’ on your readers so strongly that they have no choice but to accept it. Rather persuade the readers in a way that (at the end) they reach the same conclusion as yours because your writing has guided them to a result which they would have found on their own as well. Traditionally, the art of persuasion meant “thinking like a rhetorician”. In other words, persuasion was achieved through three tools, viz., ethos - the image of a writer’s character which could command the respect of the audience; pathos - an appeal to the audience’s emotions or sense of justice; and logos - an analysis which the audience finds convincing. This classical approach was based on the assumption that the readers or audience are not particularly intelligent or sophisticated. In modern legal advocacy, the situation has changed. The lawyer is writing for readers who can be well informed and sometimes regard themselves as “superior”. Here persuasion becomes a delicate and subtle art.
In the changed environment of the modern times, the abovementioned classical dictums have been suitably redefined:
Trying to attain perfection in writing may lead to procrastination and prevent free flow of ideas. Once sufficient legal research is done, write it down — no matter how tentative you think it is. You can edit it later, for the first draft is meant to be rough. There is no one right way and certainly no “perfect” way to write a sentence or a paragraph or an entire document.
Ultimately, legal writing is about communicating complicated information clearly and establishing credibility with demanding audience(s). This is what transforms good writers into first-rate ones, and makes them efficient and powerful editors of their own writing and of others' drafts.
Readers consider a document to be well written if the writing advances the reader’s purpose/objective in reading the document. In the case of legal readers, that purpose is to glean complex information. There are three major fundamentals that help legal writing to achieve this purpose: clarity, conciseness, and persuasiveness/engagement. It is arguable that good quality legal writing also exhibits a fourth fundamental quality-“elegance”, i.e., aesthetic. Thus, the difference between great legal writing and good legal writing is one of kind, and not merely one of degree!
Another critical aspect is the need for legal writers to take cognizance of contextual considerations. Who are the intended audience? What is the purpose of the document? The writing choices made by the writer should be guided by contextual considerations. If the context so demands, the writer will have to strike a balance between the use of plain language and technical terminology in a way that is the clearest to the intended audience.
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.