2024-11-18
Writing skills
Are you a butcher or a surgeon?
Contrary to the aphorism, a lawyer’s stock-in-trade is neither time nor advice; it is words. Everything depends on how well a lawyer uses words when writing them, speaking them, and interpreting them. That is true not only because legal work involves so much reading and writing, but —more importantly —because words are the most fundamental tool lawyers use to gain advantage for their clients. A lawyer’s life is a writer’s life.
The constant question for a lawyer is how to use words to cause a result, whether in court, in negotiation, in drafting a contract, a will, or a plaint. Lawyers are fond of comparing words to surgeons’ tools: “Words are the principal tools of lawyers and judges, whether we like it or not. They are to us what the scalpel and insulin are to the doctor. ” [1]
Law is one of the principal literary professions. That is why excellent performance in English language is the foremost requirement for university admission for a law degree. One might hazard the supposition that the average lawyer during a lifetime does more writing than a novelist. He must use that double-edged tool, the English language, with all the precision of any surgeon handling a scalpel. “Language is the lawyer’s scalpel. If he cannot use it skillfully, he is apt to butcher his suffering client’s case.”[2]
Legal writing should give the viewer a quick and clear view, without distractions, of the idea behind it. Legal writing works well only if it transmits thoughts with the clarity of Orwell’s pane of glass. [George Orwell once said, ‘Good prose should be transparent, like a window pane’.] In other words, writing shouldn’t draw attention to itself and instead should be a clear medium for conveying meaning.
If obscurity and other faults in your writing distract the reader’s attention, you and your client will suffer for several reasons. First, “[b]ad writing is not read.”[3]The typical reader begins to resist and may not even finish reading because lawyers and judges are busy people who do not have time to wade through poor writing. Those readers will expect you to express difficult ideas so that they are quickly and fully understood. [See certificate of urgency which runs into 7 pages and 27 paragraphs. As you guessed it, the judge did not “see” the urgency]. Second, a lawyer who writes badly is often assumed to be mediocre and unreliable. Judges are particularly quick to make that assumption. Third, the busy reader may misunderstand what you are trying to say.
The typical reader of your work is marked by five characteristics. First, the reader must make a decision and wants from you exactly the material needed for the decision —not less and not more. Second, the reader is a busy person, must read quickly, and cannot afford to read twice. Third, the reader is aggressively skeptical and—with predatory instincts —will search for any gap or weakness in your analysis. [That is not because lawyers are particularly nasty people: skepticism simply causes better decisions.] Fourth, the reader will be disgusted by sloppiness, imprecision, inaccuracy, or anything that impedes the reader’s decision-making process or hints that you might be unreliable. And fifth, the reader will be conservative about matters of grammar, style, citation form, and document format.
A lawyer’s job is to get good results for clients. The lawyer does this by making the right decision him/herself and by helping or persuading the other people to make the right decision. In legal writing, your reader – your audience – reads for the purpose of deciding. You fail in your duty if you write for any other purpose.
[1] 1. Zachariah Ghafee, Jr., The Disorderly Conduct of Words, 41 Colum. L. Rev. 381, 382 (1941).
[2] 3. Irving R. Kaufman, Appellate Advocacy in the Federal Courts, 79 F.R.D. 165, 170 (1978).
[3] 5. Donald N. McGloskey, The Writing of Economics 3 (Macmillan 1987).
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Daniel Musyoka