Lawyers and clear communication
With the information overload we now all face, the value of clear and succinct communication is becoming increasingly important.
The latest (5th) edition of Michele M Asprey’s Plain Language for Lawyers (The Federation Press) is a very good guide. No doubt some will ponder on this title, given that lawyers are a species not always known for their clear communication!
Communication can obviously be in a number of forms: face to face, in writing, websites, social media and other forms. I will focus on legal writing, as it is becoming more pivotal, particularly written advice to clients and written submissions to a Court.
No doubt some lawyers either consciously or unconsciously try to write in a way that makes them sounds smart and “learned”. After all, the client is paying for someone smart aren’t they? Is that not the right way to write?
The reality is that most clients don’t want to read a dissertation on promissory estoppel, the second limb in Barnes v Addy and immediate indefeasibility of title, especially if there is no conclusion or it can be found only on page 50 of the written advice.
The starting point for any piece of legal writing must be your audience – who will read it and what do they want to know? If you ask yourself this before you start this will greatly improve the success of your writing, particularly if you are trying to inform or persuade someone.
If it’s a client they will probably want to know your opinion on whether they have a case, the prospects of winning, the risks and how much it will cost. The problem is that most clients don’t always want to have to read through a long memo or letter to find what they are looking for. A colleague at the Bar once said to me that the client “should read all of my opinion”. This is probably wishful thinking and may often miss the point of striving to write in a way that is clear, concise and easy to understand by our audience.
In legal writing if you want to communicate and persuade it usually is a good idea first to succinctly state the key issues, summarise your reasoning and provide your conclusion - all on the first page. After all, you are not writing a suspense novel with a twist at the end. The reasoning to support your argument should follow the summary but - and this might hurt – all of it might not be read by all readers. So if you have something important to say, then say it upfront and assume that busy people might not want to read more than a page or two even if you write more.
If it’s a submission for a judge then the audience is different but the principle is the same; what does the judge want to know? The judge wants to know the key issues they have to decide, what relief your client seeks and why that relief should be granted. After that it might be appropriate for a detailed analysis of anticipatory breach of contract, breach of fiduciary duty and expectation loss. The judge of course is trained and versed in submissions which will be different to what is sent to a client.
In commercial law cases the ability to win a case often hinges on your ability to persuade the judge in writing of your client’s case. Documents such as a statement of claim are also important as most judges first read the pleadings and then the written submissions.
If you are writing to the other side then you will need to put yourself in their shoes. If you are trying to them to point out the weaknesses in their case with a view to getting them to settle then start with your best – their weakest - point and make it clear and tight. If it get convoluted and long-winded they will probably think that, as you can’t clearly make the point, it’s debateable. And so back to the trenches you will go.
Writing well and clearly is actually not always easy; it takes practice. You have to work on it and recognise that you can always do better. Sometimes you will have to “unlearn” some bad habits.
I am often reminded of the need for clear legal writing by my wife, who is a keen exponent of plain language. She sometimes proof reads my work and often challenges my structure and the choice of words. What does that word mean? Is there a better choice? Why have you put this issue here? What is the main issue? Why that heading? Why that font?
It can be hard for the ego of most lawyers (including me) to seek out – and worse, accept – criticism of our writing but we must do it. The critic could be a mentor, a teacher, a colleague, a spouse, or a precocious teenager.
I always remember a talk by an eminent judge in the bar reader’s course when he said that in a pleading, or other forms of legal writing, every word should justify its place or be discarded.
When I have given talks to junior lawyers about pleadings, I try to pass on this idea of cutting out the foliage in their written work. I usually say: think Orwell or Hemingway; not Tolstoy or Dickens. Abraham Lincoln’s Gettysburg address, one of the most famous speeches in history, was delivered in just three minutes and was 272 words long. It followed a now forgotten speech by Edward Everett, a former senator, secretary of state and president of Harvard, which lasted two hours.
Since Lincoln’s famous speech in 1863 our information and communication has gone through many technological advances from typewriters to word processors, computers, the internet, social and online media and now AI. None of that has necessarily improved communication, particularly legal communications where legal documents seem to be becoming ever longer, especially judgments.
Great writing does not happen by chance. To use a sporting analogy, Gary Player, the great South African golfer, was not blessed with natural talent but still won nine major titles. He famously said that “the more I practise the luckier I get”. Greatness in any field comes about from a recognition that improvements can always be made. In the case of great writing, a commitment to clear writing is required. And a lot of practice and hard work.