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CA Dr Arpit Haldia has explained that legal documents like written submissions, applications and petitions have to be precisely drafted so that the persons reading them are able to extract the information contained therein and arrive at a decision. He has given several valuable tips on how such documents should be drafted so that the points contained therein are stated clearly and unambiguously<\/strong> <\/p>\n This article is a humble effort on the given topic as a learner. It is an effort on a subject, which as a part of legal profession; I know is the one of the most important but yet an underrated area known as Legal Writing. Public perceives legal professionals to be good draftsmen. However, it’s a fact that time devoted towards developing art of legal drafting by legal professionals is much lesser than the time devoted towards analyzing and interpreting laws. In our education system also, much lesser time is devoted towards teaching of drafting skills to students in legal field. <\/p>\n <\/p>\n In a Research Paper "Improving Legal Writing: A Life-Long Learning Process and Continuing Professional Challenge" (2005) Suffolk University Law School Faculty Publications. Paper 21 by Vinson, Kathleen E., it was said that <\/p>\n “Writing skills do not get the recognition, priority, and resources they deserve even though they permeate the daily life of lawyers in every facet of the legal profession.”<\/em><\/p>\n The paper further quotes that <\/p>\n “Lawyers need to practice, refine, and further develop their legal writing skills as if their professional life depended on it because it often does. Law is a profession of words. Thus, written communication skills, rather than substantive legal knowledge, are deemed to be one of the most important skills necessary for beginning lawyers.”<\/em><\/p>\n Common questions which are paramount for every legal professional in developing art of legal writing are<\/p>\n (a) What are the common rules for Legal writing? (c) Whether Legal writing requires knowledge of advanced English grammar. <\/span><\/p>\n (d) Whether Legal Writing is something which is out of reach of a common legal professional? <\/p>\n This article is an effort towards finding answers to above questions and also to analyse characteristics, process and do’s and don’ts of legal writing with references to scholarly articles and legal judgments and common grammar rules cited at different places in the article. Although, article seeks to identify common rules for legal drafting, but still exceptions cannot be ruled out. <\/p>\n (i) Importance of good Writing skills<\/u><\/em><\/strong><\/p>\n Ann Handley<\/strong>, CCO of Marketing Profs<\/a> who also writes at AnnHandley.com<\/a> said that,<\/p>\n “Words matter. Your words (what you say) and style (how you say it) are your most cherished (and undervalued) assets.”<\/em><\/p>\n It’s an undisputed fact that writing is an art. Just like the poets and novelists and fine art artists portray the world in new ways, writers also belong to same category that may mesmerize and leave the reader spellbound with their skilled writing. A good writer with his articulated writing grabs the attention of the readers and establishes connect with the reader in a manner similar to the poets, novelists and fine art artists. <\/p>\n It was said by Kyle Wiens, the CEO of iFixit (the largest online repair community) and founder of Dozuki (the software team behind iFixit) about how written words project the writer’s image in the physical absence of a writer. <\/p>\n “They are a projection of you in your physical absence. And, for better or worse, people judge you if you can’t tell the difference between their, there and they’re.”<\/em><\/p>\n In a Research Paper "Improving Legal Writing: A Life-Long Learning Process and Continuing Professional Challenge" (2005). Suffolk University Law School Faculty Publications. Paper 21 by Vinson, Kathleen E., it was quoted that <\/p>\n “Indeed, writing skills are fundamental to success in the legal profession and serve as the foundation for effective communication;”<\/em><\/p>\n It further went on to provide that <\/p>\n “Good legal writing includes the effective communication of legal analysis, rather than just technical proficiency with rules of grammar, syntax, and punctuation”.<\/em> <\/p>\n It concluded as follows: <\/p>\n “However, to be an effective writer, in addition to mastering the complexity of the law, lawyers need to continue to master another stage of development — the ability to communicate their analysis of complex legal issues in a clear, concise, and logical manner that meets the reader’s needs.”<\/em><\/p>\n People might be expert in legal field but if they fail to equip themselves with writing skills, their legal skills would also fall short of delivering the desired results. Take an instance wherein, fairly lengthy written submission is submitted before a legal authority. Supposedly, it contains say certain basic errors pertaining to punctuation marks, framing of sentences, use of passive voice etc. Further, say reader’s also fail to understand what the writer wants to communicate to them. In such a situation, even though writer might be having expertise in legal field, his efforts will not yield him desired results. <\/p>\n Therefore, good legal writing forms foundation for effective communication and is a necessity in moving ahead in legal profession.<\/p>\n (ii) What is Good Legal Writing: <\/u><\/em><\/strong> Professor Mark K. Osbeck<\/a> discusses this question very aptly in a published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review<\/em><\/a>. The writer first discusses effective document and a well written document and then carves out distinction between the two styles of document as follows: <\/p>\n (a) Writers’ perspective: Document serving writers purpose is an effective document but not necessarily a well-written document:-<\/u><\/em><\/strong> Professor Mark K. Osbeck<\/a> analyses whether the fact that legal document achieved purpose of writer in writing the document can be the key criteria to decide what is good legal writing.: <\/u><\/em><\/p>\n “In other words, it seems plausible to assert that a well-written document accomplishes (or is reasonably calculated to accomplish) the writer‘s purpose in writing the document. If, for example, the writer‘s purpose in writing a brief is to persuade the court, then under this criterion, the brief is well written if in fact it persuades the intended audience (i.e., the court).” <\/em><\/p>\n However, it is not always true that only a well written document persuades the reader and achieves the purpose of the writer. A document although poorly written may still serve the purpose of the writer of convincing the judge and a document although well written may not convince the judge and therefore will fall short of serving the purpose of writer. <\/p>\n “For instance, a brief that takes advantage of a judge‘s known predilections or prejudices can be an effective document, even though it is poorly written; so too can a brief that is deliberately unclear.”<\/em><\/p>\n The writer’s perspective in legal writing may be biased in achieving the result in favour of his client howsoever possible and does not necessarily emphasizes on a well written document. Therefore, fulfillment of his perspective may always result in an effective document but not always in a well –written document. Thus, if the written document fulfills the purpose of the writer, it would be an effective document but it cannot be always said that such document would be a well written document. <\/p>\n (b) Reader’s perspective: Document fulfilling the expectation of intended audience is a well-written document<\/u><\/em><\/strong><\/p>\n Before moving on and discussing why readers perspective has been preferred for assessing whether a document is well written or not, observations in following two judgments highlighting the frustration of the readers in an inappropriately drafted legal document by the counsel is as follows: “In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief….Enough is enough."<\/em><\/p>\n The same rule was again applied in the matter of Sekiya v. Gates<\/em><\/strong><\/a>, case no. 06-15887 (9th Cir. November 29, 2007)<\/em><\/strong><\/a> and the observations regarding the written submissions were again very explicit as follows<\/p>\n “The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to the record.”<\/em><\/p>\n \n It went on to further provide that <\/p>\n \n “Bare assertions and lists of facts unaccompanied by analysis and completely devoid of case law fall far short of the requirement that counsel present “appellant’s contentions and the reasons for them.”<\/em> “It is very poor English. It is impossible English….”<\/em><\/p>\n It further went on to provide that <\/p>\n “It’s archaic. Even Shakespeare could not understand the grammatical construction of this indictment.” <\/em><\/p>\n It’s common while assessing any field of art, that it’s neither the perspective of the person who created the art and nor the perspective of the entire population who observed the art, which would be relevant to decide whether it’s a well crafted art or not. It’s the perspective of the intended audience for whom the art has been created, who would decide whether it’s a well crafted art. If it’s designed for public at large then it would be general public and if it is designed for specific audience, then specific audiences would assess the art. The creator of the art cannot live in an isolated world where he himself appreciates his art but it’s the intended audience for whom the art has been created, who would decide that whether the art meets their expectations and serves the purpose and thus is a well crafted art or not.<\/p>\n Mark K. Osbeck<\/a> in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review<\/em><\/a> said that <\/p>\n “Rather, lawyers and judges read legal documents because they need to extract information from these documents that will help them make decisions in the course of their professional duties.”<\/em><\/p>\n For e.g. lawyers write legal submission to serve following two purpose, one being to let the judge know about the facts of the case and second to provide an analysis of the legal principles on the facts of the given case so that the case may be decided in favour of his client. Another important issue to be considered here is that generally, the reader of the legal document has limited time available. <\/p>\n Therefore, if purpose and context of writing document is tilted so heavily in favour of reader of document, then document should be classified as well written when it satisfies the reader’s requirement. Hence, if reader is able to understand and extract required information for decision making from the written document in the limited time available with him, document would be classified as well-written document. <\/p>\n “..Legal reader‘s purpose for reading the document is to extract information that will facilitate the reader‘s decision-making. And thus, the legal reader will regard a document as well written if and only if the writing facilitates that decision-making. Good legal writing, therefore, is best understood as writing that helps legal actors make decisions in the course of their professional duties.”<\/em><\/p>\n If the readers have to slug out the information from the document, then even though the document might be serving the purpose of the writer and thus effective document but it would not be a well written document. The primary reason would be the failure to accomplish the purpose of the person for whom it is written. It has been categorically provided by Mark K. Osbeck<\/a> in his work as follows: <\/p>\n “But it is the readers who determine whether the document is regarded as well written, based upon their perception as to whether the writing meets their expectations. If the readers determine that the writing style tracks their needs and interests, and therefore advances their purpose for reading the document, then it will be considered a well-written document. The writer‘s purpose and the writer‘s own assessment are immaterial. This is true not only of legal writing, but of all writing. At bottom, good writing means writing that fulfills the expectations (i.e., satisfies the needs and interests) of the intended audience.”<\/em><\/p>\n Conclusion<\/u><\/em><\/strong>:<\/u><\/em> It would always be the reader’s perception which would decide a well written document. Legal writing which fulfills expectation of the reader and allows him to extract the relevant information in the time frame available with him, would be good legal writing and one that makes the reader slug out information and fails to let the reader understand what the writer is actually trying to convey would be hailed as an ill-written document. <\/p>\n (iii) Characteristics of Good Legal Writing:<\/u><\/em><\/strong><\/p>\n Once ascertained, good legal writing has to be seen from the perspective of reader, factors which enable readers in extracting required information from the document and makes decision making easy for them would be the critical factors for determining primary characteristics of good legal writing. <\/p>\n Mark K. Osbeck<\/a> in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review<\/em><\/a> provided four essential characteristics of good legal writing as follows: <\/p>\n (a) Good legal writing is clear <\/p>\n (b) Good legal writing is concise<\/p>\n (c) Good legal writing is engaging <\/span><\/p>\n (d) Good legal writing is elegant <\/p>\n 1. Good legal writing is clear: <\/u><\/em><\/strong><\/p>\n Brian Garner and Justice Antonin Scalia in their book Making Your Case claimed that <\/em><\/p>\n “One feature of a good style trumps all others. Literary elegance, erudition, sophistication of expression-these and all other qualities must be sacrificed if they detract from clarity.”<\/em><\/p>\n Mark K. Osbeck<\/a> in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review<\/em><\/a> provided as follows<\/p>\n “But it is important for the legal writer to keep in mind that clarity is the paramount goal of legal writing, since readers can only make effective use of a document to aid their professional decision-making if they understand the writer‘s message.”<\/em><\/p>\n The writer writes a document to communicate to the reader. If writer is not able to establish communication with the reader clearly, then basic purpose of writing document would be defeated. Thus, to understand what clarity would mean in terms of legal writing, we would have to first ascertain the basic purpose for which the document is being written and probable class of audience of the document. These two factors would decide what clarity would mean for a particular document. <\/p>\n Mark K. Osbeck<\/a> in his published work further provided following examples as follows<\/p>\n (a) An associate reads an opinion in order to better understand the law and to better predict what a court is likely to do in a given factual scenario; <\/em><\/p>\n (b) A partner reads an associate‘s memo in order to gain a better understanding of the legal challenges facing the client; and <\/em><\/p>\n (c) A judge reads a brief in order to better understand the facts and the lawyer‘s arguments.<\/em><\/p>\n In all these given circumstances, both purpose of writing the document and class of audience are very different. Thus while writing the document, it would all depend on adopting different strategy for different situations i.e. horses for courses. Following are some rules which would enable writer in devising a strategy to make writing clear and easily understood by the readers of the document under different facet of legal professions: <\/p>\n (a) Basic grammar rules should be followed:<\/u><\/em><\/strong> As a grown up professional, we tend to brush aside rules of English grammar treating them as something meant for the people engaged in English literature writing. This is one of the biggest myths. Advance rules of English grammar may not be entirely relevant to us but basic rules for grammar like appropriate use of tense, proper use of verbs, proper arrangement of words etc. make our writing relevant and effective. Any ignorance of basic grammar rules would only render the readers’ experience a nightmare and may sometimes result in catastrophe. <\/p>\n Basic grammar rules are used by readers while reading the document, as thumb rules and not as exceptions. They are normally not expected to be broken. If the writer deviates from these basic rules, it would leave the readers confused and readers would find it hard to understand what the writer is trying to communicate. <\/p>\n (b) Use of ordinary words and simple sentence structures.<\/u><\/em><\/strong> There is always an apprehension and inclination while writing a document to use legal jargons and legalese. The writer believes that these words are necessary to be used in legal writing to express the views more clearly. It’s not always the case and more than the legalese, its simple language and sentence structure which enhances the quality of legal writing. <\/p>\n Richard Wydick, states in his book Plain English for Lawyers <\/em>that ―“Good legal writing is plain English” <\/em><\/p>\n Lord Denning M.R. said, "If you were seeking to see what different principles should be applied, the first would be to recommend simpler language and shorter sentences. The sentence, which goes into ten lines, is unnecessary. It could be split up into shorter ones anyway, and couched in simpler language. Simplicity and clarity of language are essential."<\/em><\/p>\n The writer should know at the start of the document that whether he is writing to express or impress. The writing made for the purpose of impressing is laden with heavy words, legal jargons, verbiage and is complex. The writer who is writing to express should be clear and simple. <\/p>\n However, what would be meant by plain and simple language would depend upon the nature of audience for whom document is intended. The associate reading a document would not easily understand the legalese i.e. the legal terminology used in legal field however same legal terminology used by the legal writer in a written argument before the judge would make communication of the matter more clear and easy to understand. Imagine excessive use of legal terminology by the writer in a legal opinion given to the client. The client would scratch his heads and come out with nothing however the same language, if used before a judge would comprehend him the matter clearly. Thus the context in which the document is being written and proficiency of audience in legal and technical language would be relevant in determining what would be meant by plain and simple language. <\/p>\n However, use of legal terminology would be required at some places to communicate the matter more precisely. Mark K. Osbeck<\/a> in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review<\/em><\/a> provides a very interesting example In this regard <\/p>\n “An emergency-room physician, for example, is not likely to tell the on-call cardiologist that the patient has a rapid heartbeat. Rather, the physician is likely to report that the patient has a ventricular tachycardia because that is the level of specificity the cardiologist requires. Likewise in the context of legal writing, it is sometimes clearer depending on the audience for a lawyer to use terms of art such as preliminary injunction, promissory estoppel or quantum meruit than to try to translate those concepts into plain language.” <\/em> (ii) If not, use the ordinary term. If so, then consider the nature of the audience to determine whether the increased precision resulting from the technical term outweighs any loss of clarity that may result from using a term that may not be familiar to all members of the in-tended audience.<\/em><\/p>\n (iii) The benefits of using precise technical terms, in other words, must be balanced against the benefits of using language that is clear to a broader audience. <\/em><\/p>\n (iv) Technical terms may sometimes aid precision, but they also inhibit clarity if the reader does not understand them. <\/em><\/p>\n (a) Avoid using unnecessary or clutter of words:-<\/u><\/em><\/strong> <\/u><\/strong>William Zinsser, author of On Writing Well<\/em>, defines clutter as "the laborious phrase which has pushed out the short word that means the same thing.”<\/em><\/u><\/strong><\/p>\n The clutter of words is a bunch of words used together instead of a single or a short word with same meaning For e.g. use of “a great number of” instead of “more”, “absolute guarantee” instead of guarantee, “at 12 noon” instead of “noon”. <\/p>\n In an article on good legal writing by Carole Lewis, Judge of the Supreme Court of Appeal, South Africa, she wrote that Why we should use “cease and desist” when we can instead use “stop”. Both the words used in the given phrases mean the same thing but it is believed by using multiple words for one single word, preciseness is being achieved. However, the results used by use of Clutter of words is sometimes other way around and instead of preciseness, things are made complicated and unnecessarily lengthy. <\/p>\n As a general rule and leaving apart exceptions, one must avoid use of synonyms and multiple words in place of single word. The basic idea to avoid clutter of words is to be clear and simple. <\/p>\n (a) Appropriate use of repetition of words to make the view point clear:<\/u><\/em><\/strong>Writers often avoid using the words repetitively and prefer using variation of same words at different places. However, this use of variation or avoiding the use of same words at different places can be very harmful and may render the meaning of the draft turn on its head or leave the reader confused about what the writer is trying to say. For e.g. synonyms are used in varied context at many places in English language and reader might consider the meaning of the synonym in a context different than the one in which used by the writer. <\/p>\n “The Writing Process”, paper released by the Capella University aptly describes importance of repetition of important words and avoiding the document to be made into a thesaurus as follows: <\/p>\n – Repetition of and referral to key words and phrases signals to the reader that renamed concepts are important. <\/em> However, this comes with a rider that the writer should not overdo repetition which may irritate the reader and would affect the conciseness of the document and may make the document less engaging. Hence, balance has to be maintained by the writer between using repetition of words and overdoing such repetition. <\/p>\n 2. Legal Writing should be concise:<\/u><\/em><\/strong><\/p>\n Conciseness has been defined in The Elements of Style <\/em>(Third Edition, 1979) written by Professor William Strunk in 1929, and updated by his former student, E B White, Strunk as follows:<\/p>\n ‘Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell.’<\/em><\/p>\n The word “concise” often takes color from brevity or being short. It is not brevity, but it’s the context in which the document is being written and how efficiently it conveys the meaning to the intended audience. <\/p>\n For e.g. judge in a legal matter may have a limited time for reading written submission of the counsel and understanding the matter and extracting required information for delivering the judgement. In a matter covered by an earlier judgement, he may be more interested to know straightaway reference to the earlier decide case law and throwing the entire legal history before him would only make the conciseness of the document go awry. However, a complex matter or idea may require long and detailed writing. <\/p>\n A very interesting example was quoted Mark K. Osbeck<\/a> in his published work on “What is Good Legal Writing and why does it matter? in the Drexel Law Review<\/em><\/a> in this regard as follows: <\/p>\n “efficiency means not using ten words to say what can just as well be said in six words, while employing the appropriate level of detail means not telling someone about the history of watch-making when they ask what time it is.”<\/em><\/p>\n Thus, conciseness is not being short but how efficiently the writer conveys his viewpoint that no word is wasted and every word works towards making the writing clearer to the intended audience. Conciseness is always relative looking to the <\/p>\n – Interest and needs of the audience, and <\/span><\/p>\n – Complexity of the matter involved. <\/span><\/p>\n If the matter is simple one, generally shorter legal writing may be required. However, if the matter is a complex one, detailed submission would be work. Therefore, efficient draft is not brevity but it is enabling the reader in extracting required information for the purpose of professional decision making without wasting reader’s time is always appreciated and it makes use of the limited opportunity available with the writer to the best extent possible. It’s like walking on a tight rope wherein you have to balance yourself by achieving conciseness of the writing without affecting meaning of the content and to make the most of the time span available with the reader of the document.<\/p>\n The question now arises is how can we concise legal writing. This the most typical part of legal writing to concise a lengthy document. For that you either need to be a good editor or required to have a good editor. Ann Handley<\/strong>, CCO of Marketing Profs<\/a> who also writes at AnnHandley.com<\/a> said that,<\/p>\n “Good writing has a good editor. Writers get the byline and any glory. But behind the scenes, a good editor adds a lot to process.”<\/em><\/p>\n The Late Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit was brought a draft opinion by one of his students and he replied as follows: It would be appropriate to refer to the observations in the article on good legal writing by Carole Lewis, Judge of the Supreme Court of Appeal, South Africa, she wrote that <\/p>\n “It is often said that it takes longer to write a short argument or judgment than a long one. That is because the shorter work requires more thought. And culling or editing a piece makes one think again. The obvious truth is that the shorter work is better because it has been more carefully considered and structured. Brevity is an art that I think we should all attempt to achieve. It leads to simplicity and clarity which in turn lead to better writing and reading.”<\/em><\/p>\n Editing or making the document concise is an art wherein you identify the scrupulous material in the document, which even though removed would not affect the meaning and the content of the legal writing. The writer should have the knowledge of the unnecessary material in the document and for that he should have a very good editing mind. The writer has to treat every word like a diamond in the jewel and make it speak for itself and words should never be wasted. Judgmental call has to be made by the writer to decide what can be weeded out without impairing the meaning of the document. <\/p>\n 3. Good legal writing is engaging:<\/u><\/em><\/strong><\/p>\n Writer Don Murray Good once said that <\/p>\n “writing serves the reader, not the writer. It isn’t indulgent. “The reader doesn’t turn the page because of a hunger to applaud,” <\/em><\/p>\n Lord Denning, a well-known British jurist, described the importance of engaging the reader as follows: <\/p>\n “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 set-ting, they will sit up and take notice. They will listen as if spellbound. They will read you with engrossment.” <\/em><\/p>\n Legal writing should be engaging to keep the reader interested and hold on to the reader. Without being engaging, entire exercise of readers of reading the document would be laborious and would make their work harder of extracting the necessary information. If the reader restricts his involvement to flicking of pages, no matter how clearly and concisely one has written the document, document would fail to achieve its intended result. <\/p>\n – How to make writing engaging <\/u><\/em><\/strong><\/p>\n Mark K. Osbeck<\/a> in the published work on “What is Good Legal Writing and why does it matter?” in the Drexel Law Review<\/em><\/a> provided following inputs in this regard: <\/p>\n (a) Introduction of each document:<\/u><\/em><\/strong>Introduction of the document is something which catches the attention of the reader and gets hold of him. A well written introduction has the ability to such an extent that once the reader reads the introduction, he is forced into reading the entire document. Introduction is one such paragraph which creates an aura that first impression is the best impression. Introduction should contain broad reference and substance of subject matter and how writer intends to move ahead. “The Writing Process”, paper released by the Capella University provides an insight about the critical issues in Introduction of a document as follows: <\/p>\n “Writing paragraphs for the body of your essay can be difficult enough, but introductions present special challenges. In an introduction you must gain your reader’s attention, identify the subject of your essay, and present the basic substance of your argument for the essay. “<\/em><\/p>\n Introduction should be crisp and should contain most relevant content. The paper suggests and alternative strategy preferring to write the introduction, once the entire write-up is finished as writer would then be able to express his thoughts in a better and concise manner. <\/p>\n (b) Using varied sentence structures<\/u><\/em><\/strong>: One way of engaging readers is to use varied sentence structures. Excessive repetition of words and long and tedious sentences only make the reader bored from the document. Sentence structures which differ in length and have smooth transition, keep the audiences engaged with the document. It also depends on the ability of the writer to use expressive words. Some of the examples can be replacing weak verbs with more stronger and specific verbs, combining short and vague sentences to form a more specific sentence without making the sentences long and tedious, avoiding excessive use of words like “there is”, “there are” in sentence etc. <\/p>\n (c) The writer using his own voice<\/u><\/em><\/strong>: J.B. White, has described the development of an authentic writer‘s voice as central to the enterprise of becoming an effective lawyer: <\/p>\n “Law, as you can see, is for me a kind of writing, at its heart less of an interpretive process than a compositional one. The central task for the lawyer from this point of view is to give herself a voice of her own, a voice that at once expresses her own mind at work in its best way and speaks as a lawyer, a voice at once individual and professional.”<\/em><\/p>\n Does that mean that speaking language and writing language of the writer should be the same? No not necessarily. It only means that the reader should feel that the language used by writer is expression of his own mind on the given subject. The language having writers own voice reflects individual characteristics of the writer and the reader starts to build an image about the writer. This enables the reader in establishing connect with the writer and once established, it would tantamount to engaging the reader in the writing. “Suppose, for example, that a plaintiff‘s lawyer sends a demand letter to the defendant that is otherwise well written (i.e., is clear and concise), but its tone is too matter-of-fact or even friendly. The letter would more effectively engage the reader if its tone were more serious so that it evoked some concern on the defendant‘s part as to the consequences of not settling. Otherwise, the tone interferes with the content of the letter, and the writer‘s message gets diluted. “<\/em><\/p>\n Thus, subject matter and the writing style of the writer should be in sync with each other otherwise the reader would feel disconnect from the document and would be at cross roads understanding the basic purpose of the document. <\/p>\n 4. Good legal writing is elegant <\/u><\/em><\/strong><\/p>\n If one has to express what elegance means, then it would be the writing which leaves the readers “spellbound” or “mesmerized” and makes the reader stand and applaud. Elegance or beauty for that matter is a subjective matter i.e. a particular thing can be elegant for one person and not of much interest for another. Generally speaking, elegance is something which has an aesthetic quality and artistic flair. Mark K. Osbeck<\/a> in the published work on “What is Good Legal Writing and why does it matter? in the Drexel Law Review<\/em><\/a> provides a very interesting example In this regard <\/p>\n “A utilitarian object such as a chair or a watch is not considered museum-worthy merely because of its functional qualities; instead, it is principally the artistic quality of the design that makes it a great watch or a great chair. So too with writing: great writing transcends its functional purpose and exhibits an artistry not found in ordinary writing.”<\/em><\/p>\n What is elegance in legal writing has been provided by Williams and Colomb as follows: Whether elegance is essential in legal writing? The answer to the question lies in the fact that some of the great legal writings have become immortal because of the way they have been written. Elegance makes the reader remember writing for a long time. Any Legal writing which satisfies its functional purpose is not required to be elegant. It can satisfy its core functional purpose by being clear, concise and engaging. However, good legal writing extends beyond its functional purpose and becomes great when it contains a touch of elegance and makes the reader say what a beautiful piece of writing. Elegance is a journey of transforming good writing to great.<\/p>\n It is important to consider the context in which the legal writing has been written, before considering whether elegance is essential in a particular document. An advice to the client is not required to be elegant as primary requirement is a straight advice. Elegance might not be a necessary trait for an office memorandum as it needs to convey the matter to the office staff clearly. However, a scholarly article on a legal matter may require elegance as a necessary trait to have readers remember it for a long time. It all lies in the context of legal writing and elegance would be the “X” factor in the document written by the writer. <\/p>\n
\n (b) Whether Legal writing involves ornamenting document with technical and complex words. <\/p>\n
\n What exactly is good legal writing or drafting? Once understood, it would help in charting out the path we need to pursue for improving legal drafting. The initial thought which comes to the mind is what should be the yardstick for analyzing good legal writing. Whether it should be based upon the achievement of the purpose of writer in writing the document or it should be reader’s assessment of document fulfilling the expectation of the intended audience. <\/p>\n
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\n The Ninth Circuit in United States of America in the matter of N\/S Corp. v. <\/u><\/em><\/strong>Liberty<\/u><\/em><\/strong> Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997) declared the famous “slubby mass rule”:<\/u><\/em><\/strong><\/p>\n
\n In yet another case of <\/u><\/em><\/strong>Henderson<\/u><\/em><\/strong> v. State 445 So. 2d 1364 (1984) Jacob HENDERSON v. STATE of <\/u><\/em><\/strong>Mississippi<\/u><\/em><\/strong>. No. 54662. Supreme Court of <\/u><\/em><\/strong>Mississippi<\/u><\/em><\/strong>. <\/u><\/em><\/strong>February 8, 1984<\/u><\/em><\/strong> categorically said as follows: <\/u><\/em><\/strong><\/p>\n
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\n Following is the test provide by the learned author in using the technical terms in legal writing:
\n (i) When you use distinctive technical or legal terms, consider whether the terms add any value beyond their ordinary-language equivalents. <\/em><\/p>\n
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\n “Omit unnecessary words: examples abound in legal writing: ‘the question as to whether’ instead of simply ‘whether’; and ‘the fact that’ can almost always be left out. And why refer to all rights and entitlements and interests when rights cover the latter two? The idea is to obviate clutter: the more the eye sees the less it absorbs.”<\/em><\/p>\n
\n – Writers use repetition for emphasis. <\/em>
\n – Consistency of word choice prevents confusion. Readers don’t have to keep asking, "Is that writer addressing the same topic?" <\/em>
\n – Repetition appeals to the ear and makes prose seem to flow. <\/em>
\n – Repetition weaves the elements of different paragraphs together. Try drawing lines between repeated words in succeeding paragraphs. <\/em> <\/p>\n
\n "Nice draft, Gene. Now go back and read it again. Take out every paragraph you don’t need, then every sentence you don’t need. Then go back and take out every word you don’t need. Then, when you’re done with that, go back and start the whole process all over again." <\/em><\/p>\n
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\n (d) Tone used in the legal writing: <\/u><\/em><\/strong>Mark K. Osbeck<\/a> in the published work on “What is Good Legal Writing and why does it matter? in the Drexel Law Review<\/em><\/a> provides a very interesting example In this regard <\/u><\/em><\/strong><\/p>\n
\n “a balance and symmetry among its parts, one echoing another in sound, rhythm, structure, and meaning”.<\/em><\/p>\n