This article has been written by Samridhi Prakash from Symbiosis Law School, Noida.
“A lawyer is a person who writes a 10,000-word document and calls it a ‘brief.’”
THE LAW SCHOOL LIFE
Thousands have walked the paths law students wander, and questioned their choices, looked in the mirror at 3 a.m. with dark circles smiling back at them like the crescent moon on a summer night. Law school life is a tough and long one, preparing the next generation of lawyers for the onslaught (and hopefully the riches) life has to offer later on. Months are spent preparing the memorials for Moot Court competitions, researching through a graveyard of legal databases with cases dating back to 1950s, trying to find that last string of hope to defend imaginary clients in hypothetical set-ups. Monthly internships, a consistent 9 grade point average, research articles, book chapters, daily assignments, college society involvement, co-curriculars- these activities mark the basic checklist in a law student’s CV.
One skill that takes the front seat for every law student is legal writing. Yes, the idea of reading a judgement by a learned judge with all the legal jargon scribbled across a few hundred pages seems terrifying to a 1st year law student. Yet as semesters progress, we get accustomed to reading, re-reading and summarising the text within appreciable time. The key is to keep reading as much as we can, be it law journals, articles, judgements, blogs, pleadings, drafts of writs, seniors’ moot memorials- anything and everything we can get our hands on. There will arise no need to mug up maxims or relevant commonly used theories and sections if we keep our reading routine breathing. To master any skill we need our fundamentals on our tips, the theory etched in our memory, hours of practice and perfection in order to deliver our best. Writing hones the lawyer’s intellect and there is no escape around this part of law school. Communication is our tool and in order to master it, we need to be proficient writers and speakers.
LAW AND LEGAL WRITING
It is the lawyer’s job to communicate with the client, the opposing counsel, the judges and the jury (as applicable in certain legal systems) his arguments in a clear, concise manner. Legal research and drafting forms the foundational basis of a successful career in law. Observations of professors Adam Lamparello and Megan E. Boyd in Legal Writing for the Real World: A Practical Guide to Success preach how probably the most important skill we can develop throughout our career is the art of writing efficiently and effectively. In the professional world, writing matters because our ability to write convincingly and persuade a court full of learned men is critical and is based upon how we articulate ideas and structure arguments.
LEGALESE- CLARITY, CONCISENESS, ENGAGEMENT
In ‘Making Your Case’, Bryan Garner and Justice Antonin Scalia write that one good technique trumps upon all others. Articulatory elegance, argument edification, sophistication of phrasing—these and all other qualities must be sacrificed if they detract from clarity. We need to understand that a court document is not a play field, it needs a language for communicating effectively, using words which the reader or listener is able to understand in order to fulfill its purpose of communication. Clarity necessitates clear punctuation and grammar. To fulfill the above-mentioned purpose of legal writing some conventional rules and styles of grammar need to be followed otherwise it might lead to conjugation of shared meaning. The importance of clarity in legal writing is not an enlightening memorandum or a persuading brief, but the understanding of the reader.
Conciseness in writing is not equivalent with brevity as is confused by most of us. The writing need not be brief, it should be efficient, conveying the author’s points succinctly. The lawyer also needs to understand the intention of the audience receiving his writing. For example, a trial court judge may not have as much time on his hands as an appellate judge and the same should be kept in mind while drafting the respective briefs. Many times, it is not possible to convey all theories and laws in plain language and complex phrasing/expression is unavoidable. Conciseness, in writing, is a virtue with sentences containing no unnecessary and avoidable words making it clearer, easy to digest. It is not required in all sorts of writing, but it is required in legal writing since the reader has little time to give and will either resent or refuse to read inflated jargon.
“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 not stop to listen. 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.”
In these words, Lord Denning made it clear that the reader will not read a document, no matter how concise and clear, if it is not engaging. Instead of employing a monotonous tone we need to engage in variety. Frivolous words are not required, rather a creative phrasing on part of the writer to keep the interest of his reader unwavered. Other techniques used by legal writers to make their text more engrossing is the voice of the writer, employing humour, and other classic rhetoric like pathos (one of the three modes of persuasion as per Aristotle- ethos, logos and pathos).
Clarity and engagement are two essential elements of good legal writing, although they can sometimes clash. When they do, the skilled legal writer must discover a suitable compromise between them. These and many other varied skills need to be acquired by law students in order to be successful legal professionals. As lawyers, our words hold the weight of the argument, the fate of our clients and to deliver justice to our client as well as profession, we need to realise the importance of legalese. The five years of our law school life are our formative years and we should utilise this time building/bettering our skills.
Megan E. Boyd & Adam Lamparello, Legal Writing for the Real World: A Practical Guide to Success, 46 J. MARSHALL L. REV. 487, 487 (2013)
Antonin Scalia & Bryan A. Garner, Making Your Case: The Art Of Persuading Judges, Thomson West, 107 (2008)
Joseph M. Williams & Gregory G. Colomb, Style: Lessons in Clarity and Grace, Pearson Longman, 118-19, 10th ed. (2010)
Bryan A. Garner, Garner On Language & Writing, American Bar Association (quoting Lord Denning, The Family Story 216 (1981)), 39 (2009)
Curated by Shivanshika Samaddar of National Law University, Delhi.