In part 1 of this series, I expatiated on the importance of “T for Think” as the first element of the ADDY’s T2RWS technique for successful legal practice.” “T2RWS” acronym mean: Think, Read, Recall, Write and Speak. I defined “fluency” loosely to mean the necessary skills required by a lawyer for successful legal practice. This series of articles aims at applying the fluency of presentation in legal practice to the ADDY’s T2RWS technique. In part 2, I tackle the “2R” of the ADDY’s T2RWS technique where “2R” mean “Read” and “Recall”.
In this part 3, I will consider “W” of the ADDY’s T2RWS technique where “W” mean “Write”.
W = Write
The modalities of the legal practice keep changing with time. In the past, it was so much of advocacy through vociferous arguments. The lawyers with hoarse voice are praised for their ability to shout even to the hearing of the wheels in the deep blue sea. The practice has changed and this time is more of writing.
Even in most litigating court room drama, there is less of verbal argument now than it used to be in the past. The courts of Ghana practices “front loading” which requires that all submissions are put into writing with less talking by lawyers on their feet. The ability to write persuasively is a skill of a well trained lawyer. The grit of skillful legal writing is an art that comes through practicing.
In the truest sense of the word, legal writing is different from ordinary writing. Legal writing is meant to elicit a certain degree of response from the recipient in what seem like a simple language but technical and invokes a certain level of fear. Depending on what the legal writing is meant to achieve, generally they are short form of writing crafted in a specific writing structure to appropriately convey its consequence.
Legal writing is generally structured in an unpretentious acronym “CRAC” meaning C= Conclusion, R= Rule, A= Application, and C= Conclusion. You start with the conclusion in mind and finish it with a conclusion.
In applying the CRAC in legal writing, let’s consider this analogue:
“Lawyer KK” just finished reviewing two cases heard at the High Court to see which of the legal principles in the two cases is most suitable for a case at hand. The first case has lots of legal jargons, Latin and many foreign cited cases. This makes it complex to apply in the lower Courts of Ghana since the judges there are not of the pedigree of judges at the High Courts.
“Lawyer Kim” prefers the second case which is in plain English legal language and Ghanaian cases cited. He has to communicate his preference to his legal team which comprises of those who had their legal education abroad and those who had it in Ghana.
Some of the team members appreciate the legal jargons, Latin and foreign cases as the can relate more to it. “Lawyer Kim” can write a long memo to his team to explain his preference to the second case but instead he decided to apply CRAC.
- Conclusion – Let’s go with the second case.
- Rule – Judges of the lower Courts are not comfortable with legal jargons, Latin and foreign cases.
- Application – if the Judges have to struggle to understand legal jargons, Latin and foreign cases, it will make the understanding of our submission in Court difficult hence a higher probability of not getting judgment in our favour.
- Conclusion – Therefore we are better of going with the second case.
The above legal structure for legal writing has so much clarity that lay persons can read it and understand it. Even a skimming reader will not miss the opening conclusion and the closing conclusion which emphasises the main essence of legal writing and understanding.
In applying the analogy in the CRAC structure by Lawyer Kim, this is how it will be presented in real legal response:
I prefer we use the second case. Judges of the lower Courts see legal jargons, Latin and foreign cases as difficult to fully comprehend and because of that we will hardly win our case. Please let us continue with the second case with our preparation for Court.
The general principle in communication which says that we communicate to express but not to impress is also true about legal writing. Impressing without expressing gets no positive result. Knowing who you are writing to and what you hope to achieve in that communication helps you in your writing.
In simple terms these points are worthy of note in legal writing:
- Know your audience – this helps you to write to their understanding by communicating effectively. Knowing when to use technical terms to make good explanation and when to use simple words to equally make good explanation is important for client relations.
- Structure your writing – very legal writing must follow a systematic order. The essence is always to be persuasive to get results.
- Simplicity – using the most complex words in the most understanding way is a skill that lawyers must possess. Breaking down Latin expression to understandable English language is the way to go as Latin is no longer attractive in legal writing. Words are essentials tools for the lawyer but they must be used in the right context.
- Originality – lots of lawyers use templates so the expressions in their legal writing are always predictable. Their letters no longer get swift response. Their writing turns to be stale. In as much as using templates are good, nothing beats originality. Creativity in legal writing brings originality which gets quick response.
- The Length of legal writing – write exactly the length required…not more, not less. Over lengthy legal writing can be boring and a reader can get lost in reading. You want your legal writing to be read and understood so keep it simple, accurate and comprehensive.
- Call to Action – Your legal writing must elicit response. They are a must call to action. Be it a letter, statement of claim, contract, and what have you, it must end with a call for action which must be specific and time conscious.
- Dictionary – One of the most embarrassing situations is to receive writing from a lawyer that has so many errors. Errors can be and must be minimised by the use of dictionaries (both hard copy and soft copy). No lawyer can outgrow the use of a dictionary. Also be conscious of using either the American style or British style of English. Do not mix the two styles in the same writing.
- Share your legal writing – It is important to pass your legal writing to other lawyers in the office to go through for feedback. Do not do it all alone all the time. Sharing your legal writing with colleague lawyers in the office is one sure way of honing your legal writing skills.
Some legal writing goes unanswered because it flies in the face of expected standard of writing of a lawyer. There are many instances where judges have thrown lawyers out of Court for simple reason of their poor legal writing skills which does not befit the profession.
Good legal writing is augmented by the choice of font, font size, alignment of writing, highlighting salient points, the quality of stationary used, the quality of signature, the cleanliness of the stationary at the time of delivery, the quality of print, date, addresses, contact details, and what have you.
A better way to writing as fluency of presentation in legal practice is by constant practice through international best practices. Effectively reading the appropriate materials helps improve the quality of writing. This comes through financial and time investment.