21 6. PRINCIPLES OF LEGAL WRITING SYNOPSIS 1. Introduction (a) Simplicity (b) Clarity (c) Precision 3. Plain English and Plain Language Vocabulary 4, Eliminating the Jargon “Legalese” 5. Avoid Repetitions 6. Connecting Sentences and Linking Paragraphs 7. Use of Passive Voice 8. Short sentences 1. Introduction: ‘The importance of legal writing in the law profession cannot be over emphasised. Bryan Garner once said, “Writing is one of the two great skills that will advance your career in law. (The other is people skills) Whether you are new to legal writing or an old pro, keeping in mind some essential fundamentals is important. Without structure, clarity, proper grammar, and coherence, you are presenting a position that is less easily defended and supported. Without following those principles, you could experience some problems with credibility and success. Following are some of the principles that apply to good legal writing: (a) Simplicity: Structure thoughts simply and directly. The merits of writing in simple language are twofold; it makes the writing clear as well as engaging. Plain English certainly shouldn’t connote dull and boring language. This can be achieved by use of simplest, most straightforward way of expressing an idea. (b) Clarity: It is generally an accepted fact that the chief element in good legal writing is clarity. Its importance is emphasised by Justice Benjamin Cardozo in the following words, “there can be little doubt that in matters of literary style the sovereign virtue for the judge is clearness.” Clarity in legal writing is essential because it ensures that the message gets conveyed which is the primary requirement of communication.gt uni a Ue Remoning 22 a ee i i in the current times ¢, ~ The emphasis given to clarity in legal ST aarhee ad ditice aaa be “ from the following statement made by Bria Gr arcislon® Unie and ty - “Literary elegance, erudition, Gasman ey’ Thus the ree qualities must be sacrificed if they detrac! ne al writing clarity is first and foremost for a good Iegi But this: niet es i hi! Our anticipation In large part, it was our anticipation of this ct tinil Tore ein type of claim which cautioned us for so long es against abrogating “ against abrogation of the immunity tule. immunity rule. le It is to be noted that in this case the Oe a a that amended petition upon which the judgment Smil ee Hon” wae 1e was rendered for Smith was to recover a amen Sie Ce he woke: debt owing by the defendant arising from the same rf aailion. in purchase of the same oil and for the same the original p' prices as alleged in the original petition, and judgment was rendered for exactly the same sum as was sought to be recovered in both petitions. (ce) Precision: 2 Another characteristic feature of good legal writing is conciseness. Conciseness is more than just brevity. It is brevity with efficiency. It means that the words convey the message without the use of excessive or too many additional words, Conciseness is essential for legal writing as “reader of legal writing has no time to spare and either will resent inflated verbiage or will simply refuse to read it.” Be specific and concrete. Not this: But this: Ms. Jones returned When Ms. Jones returned to her apartment, to her apartment and she found her front door ajar, the lock broken. discovered indications that Inside, she saw that her stereo, television, and it had been burglarized. She jewelry box had been taken. Within two minutes, contacted the authorities. she called the police. Give enough supporting detail, but avoid excessive detail. You ought to “suppress much and omit more....[O]mit what is tedious or irrelevant, and suppress what is tedious and necessary.” Keep whatever expedites the argument, builds up the reasoning, or strikes home the legal and moral principles involved.Legal Langunge and Legal 23 3. Plain English and Plain Language Vocabulary: In the section above on precision, we pointed out that the more complicated the topic is, the precise sentences should be. One simple way to do this is to opt for plain English. Long-winded sentences using extravagant legal terms are often needlessly technical. Though past legal cases and documents use legal language to its fullest, modern expected conventions of the legal community are centering around clear language. One example of the importance of using plan English is in the insurance industry. In cases of insurance bad faith, for example, courts will rule in favor of the insured over the insurer when there is ambiguous or unclear policy language from the insurer. Everyone is not expected to understand technical language of the legal system, particularly when more plain, common wording is available to describe a situation. Consider the audience of your legal document, and write for them in plain language. 4, Eliminating the Jargon “Legalese”: Use Latin phrases sparingly. Also, avoid words such as “hereinafter” and “aforesaid”. A rule pertaining to use of Jargon legalese oulined by Garner can be useful “When you use distinctive technical or legal terms, consider whether the terms add any value beyond their ordinary-language equivalents. 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 intended audience.” Verbosity or fancy language does not impress a person who is unable to grasp your meaning. Instead, use words which convey your message adequately. 5. Avoid Repetitions It is redundant to use two or three or four words in the place of one word (‘devise and bequeath”; “grant,bargain, and sell”; “right, title, and interest”; “make, ordain, constitute, and appoint”). 6. Connecting Sentences and Linking Paragraphs: To ensure clarity in writing, it is important to write coherently. The logical relationship of all the parts of the sentence is called coherence. This logical relationship can also be established between paragraphs. Such relationship between sentences and between paragraphs usually is achieved by means of the proper connectives. Thus, it is making sure that each paragraph of the article flows from the previous one. It should be a logical progression of ideas. 7. Use of Passive Voice: There are generally two types of voice one can write in: active voice and passive voice. Passive voice often requires the reader to fill in gaps, make assumptions,i i, 24 Legal Language and Legal Reasoning and do extra work to figure out what you are trying to say. In legal writing, this presents an issue with accuracy and honesty in your argument. By using ACtive voice, you can stay clear, concise, and coherent, which is the next principle o, the list. Active voice means that you say who is doing the action and what that action is. Do not leave the interpretation up to the reader, because that can leave your case or argument going in a direction you did not intend. Another aspect of using active voice is putting the modifying words as close as you can to the Words you are modifying, Thus, Active voice is easier to understand and unless there jg a good reason to use passive voice to convey the meaning properly, avoid using it, Passive: The proposal to promote the organization through social media was developeg by our marketing department. Active: Our marketing department made the proposal to promote the organization through social media. Choose specific and concrete words. Avoid abstract statements. Be as direc and clear as possible. Abstract: One of the things we are trying to accomplish is to increase the understanding of laws that affect new immigrants. Concrete: We would like to clarify legislation that affects new immigrants. Use modifiers carefully. Make sure that your reader understands the meaning of your sentences. Ambiguity often occurs when the subject of a particular statement is unclear. Avoid the use of too many subordinate clauses in one sentence. This makes the sentence too long and difficult to follow. Using too many subordinating conjunctions (e.g., that, which) in one sentence can confuse the reader. Use conventional punctuation marks properly. There are two key rules here: (a) Use commas only when necessary. (b) Use semicolons to separate two independent clauses (unless joined by “and,” “or,” “but,” etc.). 8. Short sentences: Write shorter sentences with plain language. As you will see a little further down this list, being clear makes a difference in writing a successful legal paper orLegal Language and Legal Reasoning 25 brief. Attention spans have gotten shorter over time as society has increased usage of television, streaming services, apps, smartphones, and instant messaging. Using long sentences of old legal jargon no longer serve a positive purpose. Keep each of your ideas short and sweet. Steven Stark, author of Writing to Win, says the more complex the material, the shorter the sentences should be. That holds true for legal writing as well.