Many lawyers overlook the usefulness of effective writing, says Richa Kachhwaha
The nuances of legal writing have been on my mind ever since I started working in legal publishing. My experience has been that lawyers in India rarely read or consult resources on the art of legal writing. In corporate hubs, lawyers don’t feel the need to work on their writing skills. They consider their writing to be “good enough”, so they think, “why spend time learning it?” But in reality, from a writing perspective, even good lawyers can be incoherent, and their writing can come across as a bag of random advice.
The Latin proverb, verba volant, scripta manent, (spoken words fly away, written words remain), is best applicable to the legal profession. A substantial part of what lawyers do, in litigation practice or transactional work, or an in-house role, is ultimately persuasion through writing. A well written document is naturally more persuasive than a poorly written one.
Ideally, vital and related skills like legal writing, research and analysis must be taught on a consistent basis in our law schools. The increased practical exposure through internships, mooting and legal clinics in the Indian legal education landscape is laudable. Writing skills (and to a great extent analytical skills), however, remain neglected. Persuasive writing in particular is still not emphasized in law schools in India. Oddly enough, the courses on legal drafting (and conveyancing) do not devote time to the mechanics of writing.
Although there is an overlap between a document that is well written and one that is effective, the two are not always co-extensive. Some well written documents may not achieve a lawyer’s objective or purpose. Besides, what is well written from a lawyer’s perspective may not be well written from the perspective of a business manager or an in-house counsel.
A classic example of this is a lengthy email from a litigation lawyer to an in-house counsel discussing the potential risks in an impending dispute. Typically, the email will begin with a detailed discussion of the facts and the law, including case citations and citations to texts/commentaries. Latin terms/phrases and legal jargon will be generously used, and the email will end with a long summary of the entire discussion, without giving a clear conclusion on the next steps or the expected outcome.
Clearly, this style of writing is not helpful for the business. Instead of writing “like a lawyer”, a litigation lawyer needs to write in a manner, and in a language, which business managers (and in-house counsel) understand and find useful, without compromising on explaining the legal position.
Traditionally, legalese has been used in drafting pleadings and contracts. Critics of legalese and archaic legal language point out that developments in the English language have been largely ignored by lawyers. Litigation lawyers, in particular, continue to overlook the need to communicate the law and legal concepts to a layperson in a language that is easily understood. Redundant and convoluted phrases are still used when writing legal documents, for example, wills.
The writing style and legal language that have been in use over generations are picked up by young lawyers on the job, and internalized. Indian lawyers are also unaware about the “plain language movement” in legal writing, which has gathered considerable steam in other English-speaking jurisdictions, notably the UK, US, Canada and Australia. The bar associations in these countries encourage replacing jargon and archaic legal language with plain-language equivalents wherever possible. In these countries, legal documents, especially contracts and day-to-day documentation, have been simplified to make them accessible and reader-friendly.
In transactional practice, when drafting contracts, lawyers tend to follow the language of earlier contracts, and in the process legalese is passed on. Further, contracts continue to be drafted in the outdated long-sentence tradition as seen in “one sentence” form documents. Entire sale deeds are composed as one long sentence so as to confer proper legal meaning. The rationale behind the use of legalese and this long-winded style of writing is often attributed to the adversarial nature of the profession. Legal documents are open to question – any loophole or ambiguity can be exploited, either to opt out of an agreement/contract or to contest a legal document.
Some might suggest that good writing in the legal profession is overrated. I don’t agree with this view. It is important to understand what we mean by “good writing”. Does it mean using memorable sentences, or a particular writing style, or writing with more flourish? Or does it mean intelligent work expressed in a language that any reader can understand and connect with? Legal writing experts tell us it is the latter. One thing is, however, certain: Lawyers can elevate the quality of their work by eliminating writing flaws.
Richa Kachhwaha is the author of The Art of Legal Writing: Practicing Lawyers to Successful Professionals (Oakbridge Publishing). She is the former managing editor of Live Law and a qualified solicitor of the Supreme Court of England and Wales.