Book Review: The Art of Legal Writing - Practicing Lawyers to Successful ProfessionalsNovember 23 2019
Rajesh Narain Gupta
A lawyer is a specialist who is expected to choose words carefully and write in a language that is understood by the reader easily. Perhaps the secret lies in what not to write than in what to write. Most of the legal documents are used or applied after many years of their execution, in the event of a dispute or if an interpretation is required or in testamentary documents where the assets are to be distributed to the beneficiaries. Any lacuna, discrepancy or complexity in legal writing can be fatal. It is unfortunate that parties suffer due to poor drafting skills of lawyers.
Lord Neuberger of Abbotsbury, former President of the Supreme Court of the United Kingdom, has famously said that judges themselves need to change the way they write – or risk losing the public’s confidence in the entire justice system.
"It is not realistic to expect that every Judgment could be understood by everyone: human nature, the complexities of modern life, and the intricacies of the law do not permit that", he said. "However, if we are to maintain public confidence in the justice system, judges must make their Judgments as accessible as possible, particularly to members of the public and litigants-in-person."
He further remarked that the fact that legal professionals are trained to read judgments is no excuse for poor Judgment-writing. Reference to lawyers, judges, and academics is myopic; they are only part of the audience; “the public are the real audience”.
Effective writing is critical in the legal profession. Notably, in the conference of Vice-Chancellors of National Law Universities on Legal Education Reforms held at New Delhi in 2018, an important point which emerged was the need for law students in India to be trained in drafting skills.
There is an old Chinese proverb, “The best time to plant a dream was twenty years ago. The second- best time is now.”
For those of us who have not yet acknowledged the usefulness of good legal writing, The Art of Legal Writing is an awakening call. I am delighted to see this book by Richa Kachhwaha, which to my mind is an astounding work. It will help law students, young lawyers as well as eminent members of the Bar and the Bench to appreciate the importance of writing, and to understand the modern trends in legal writing. This book will be particularly valuable for vast majority of students in law colleges across India.
The opening chapter of the book addresses the fundamentals of legal writing. The author suggests legal writers to be observant, raise questions and answer them. All of this is an intrinsic part of a writer’s thought process. The author goes on to explain the ingredients of writing in a clear, concise and precise manner. Certainly, an important message for those drafting legal documents. The views of well-known legal writing experts have been shared on several occasions, which adds depth to the chapter and is insightful for readers.
Chapter 2 is devoted to conciseness in writing and discusses how writing can be concise yet effective! I particularly enjoyed this chapter and its lucid examples, since brevity is a much-needed virtue in the legal profession. Chapter 3 explains macro- clarity in writing, which involves structuring the document in a way that gives the reader a preview of the key elements with the aid of road maps. It is critical to engage in this exercise before dealing with aspects of writing at micro-level.
As a natural corollary, the next chapter (chapter 4) is on the nuances of micro- clarity; in crafting sentences and choosing words. The author has rightly pointed out that the “lawyerly language” which has been historically used needs to be simplified. She has commendably dealt with how to (a) craft sentences; (b) simplify complex sentences; (c) break up lengthy sentences; (d) the importance of linking important clauses within a sentence. The latter part of this chapter is on choosing appropriate and precise words and how to avoid words that are redundant.
In chapter 5 the author talks about “the art of persuasion” in legal writing, a neglected area as far as our legal education is concerned. To quote from this chapter, “A legal writer who communicates factual information through a narrative will engage the reader better than the one who writes in a monotonous manner”. This chapter carefully analyses the techniques of persuasive legal writing and how to hold/capture the readers’ attention.
I read chapter 6, ‘Written Advocacy: A Hidden Art?’ with interest; it takes an in-depth look at the art of written advocacy, including key issues to be kept in mind while drafting pleadings. By all means a vital skill for all litigation lawyers. Lawyers interested in corporate law can benefit from chapter 7 on transactional writing. Even practicing lawyers will enjoy reading this chapter as a refresher course to handle the language of transactional documentation. It goes on to highlight that choosing simple English in transactional documents is more effective than using complex and outdated language!
The emergence of legal technology and how it is disrupting the practice of law, an area that millennials in the legal profession would easily relate to, is covered in chapter 8. That legal writing can also be elegant and eloquent, wherever the circumstances so permit especially in matters involving public interest, has been eloquently discussed in chapter 9. Finally, chapter 10 rightly points out the benefits of revising, editing and polishing the first “rough draft” and the subsequent drafts, as well as benefits of paying careful attention to proof-reading.
Richa has done justice in conveying her thoughts clearly on the various topics dealt by her. The reading references and the quotes of legal luminaries and legal writing experts from English- speaking jurisdictions cited by her are icing on the cake. While wishing her work a great success, I also expect her to write more so that all of us can benefit from her writing skills.
This book review has been authored by Rajesh Narain Gupta, the Managing Partner at SNG & Partners
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