How to write legal documents that work: tips from top judges

Plain English: so easy in theory; not so easy in practice.

Even the tools which lawyers use to diagnose gobbledygook, are themselves, gobbledygook.

Well they are to me anyway. Take, for example, the SMOG readability algorithm:

smogIndeed. It’s obvious really.

Personally, I prefer to stick to the more easily understood and well-known ‘KISS’:

Keep it simple, stupid

Or, even better, Antoine de Saint Exupéry’s:

Perfection is reached not when there is nothing left to add, but when there is nothing left to take away

So why does this all matter?

Quite simply, it can have a surprisingly high impact on how persuasive your work is.

Recently, American scholar, Adam Feldman at the University of Southern California, studied 9,452 merit briefs from 1946 through 2013 to see whether the quality of legal writing in such briefs affected the US Supreme Court’s opinion content.

The upshot? Even though it is tricky to pin down what exactly is meant by ‘quality writing’, it is clear from his research that the quality of presentation and writing does matter. As he notes:

Attorneys that wish to give the party they represent the best chance of a favorable outcome are behooved to take the quality of the brief into account.

Or, in plain English:

Lawyers who want the best chance to win their case must write well

Below are some of the stand-out comments from the research. Whilst they relate to documents in legal proceedings, the frustrations of the judges could equally apply to bad writing generally: to the client who can only gaze blankly at a 30-page letter of advice or a colleague who thinks that reading a memo is like swimming through cold treacle:

One feature of a brief that judges repeatedly say can win or lose a case is its clarity. When lawyers do not lay out all of their points clearly, judges may miss important aspects of the party’s position

There have been times when I've read a brief, and reread a brief, and I just didn't see what it was saying [We know the feeling. Here’s Comet’s guide from last May to understanding the unintelligible: 5 tips for busy lawyers to understand the unintelligible]

We expect clarity, well-organized argument, and understandable sentence structure. All too often, we find rambling narratives, repetitive discussions, non-sequiturs, and conclusions unsupported by law or logic.

The paper also contains plenty of tips on how to avoid being a nuisance to the English language when writing (particularly when things have got a tad heated), such as:

  • don’t be shrill
  • don’t engage in personal attacks (they can weaken the brief)
  • remember that intensifiers can be viewed as ‘loser language’ (‘briefs that include attacks and a negative tone are detrimental to the briefs’ persuasive powers’)
  • use as much as is necessary to make your point (and no more)
  • prefer interesting over dull writing (‘engaging writing may gain judges' attention and focus judges on the statements made in the brief’)

Having said all of that, never forget the obvious final point: a wonderfully presented piece of writing is all well and good, they don’t always win cases. Or persuade clients. Or convert colleagues.

Some you win, some you lose.

So here’s a challenge for all of us lawyers. How can we keep things punchy and engaging?

Do let us have your thoughts below.

In the meantime, this gets my prize in connection with a taxpayer’s case in Australia (with thanks to the President of the UK Supreme Court, Lord Neuberger of Abbotsbury, in a speech which he gave in 2012 to BAILII):

It is reputed that a taxpayer testified, “As God is my judge, I do not owe this tax”. Judge Murdoch replied, “He is not, I am; you do”.

Whilst Lord Neuberger thought that this took things too far, the pure chutzpah of it can only be admired. For a tax case, it couldn’t be more clear (which certainly makes a change).

And here's some more views from the US legal world on plain English:

https://twitter.com/JudgeDillard/status/628363379829112832

https://twitter.com/ProfJoeKimble/status/290186494293975040

 

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