Barristers need to write well, especially commercial barristers who are not appearing before a jury. As a commercial barrister the ability to win a case often hinges on the ability to persuade the judge in writing of the client’s case. Most barristers can write well. The problem is that they often don’t write well – but think that they do.
Writing well is like batting well in cricket or hitting a good golf shot – you have to work on it, like a professional sportsperson, and recognise that you can always do better. Sometimes the better way of doing things, whether it is your batting, golf swing or writing, can be counter-intuitive. What sounds wrong can be right.
I am fairly sure many barristers either consciously or unconsciously try to write in a way that makes them sounds smart and “learned”. After all, the client is paying for someone smart aren’t they? Is that not the right way to write? The problem is that most clients – and judges – don’t always want to have to read through fifty pages to find what they are looking for.
A colleague recently said to me that the client “should read all of my opinion”. In my view, this is both conceited and wishful thinking. We should be striving for writing that is clear and concise and easy to read.
The starting point for any piece of writing must be your audience – who will read your writing and what do they want to know? If you ask yourself this before you start this will greatly improve the success of your persuasive writing.
In legal writing if you want to communicate and persuade it is a good idea first to succinctly state the key issues, summarise your reasoning and provide your conclusion – all on the first page. After all, you are not writing a suspenseful novel and it is not a game of hide and seek. The reasoning to support your argument should follow but – and this might hurt – all of it might not be read by all readers.
I am often reminded of the need for clearer legal writing by my wife and more recently by a very close friend and colleague who spends much of his life writing on legal and other topics. My wife is a keen exponent of plain language. She sometimes proof-reads my work and often challenges my structure and the choice of words. What does that word mean? Is there a better choice? Why have you put this issue here? What is the main issue? Why that heading? Why that font?
It is hard for the ego of most barristers to seek out – and worse, accept – criticism of our writing but we must do it. The critic could be a colleague, a spouse, or precocious teenager. If writing for clients, we should keep in mind that almost 50% of the population struggle with basic literacy. And they are unlikely to understand Latin.
That brings me to judgments. As most judges are appointed from the bar, most judgments are therefore written by former barristers. In legal writing judges set the standard. Better structured judgments that include the issue upfront with a summary of reasoning and conclusions would not only be better for the non-lawyer reader but would also set a clear standard for the profession.
The great judgments of Sir Owen Dixon were generally short, summarised the relevant propositions and possibilities and (thankfully) did not feel the necessity to include every argument, however poor or weak.
I always remember a talk an eminent judge gave to me in the reader’s course when he said that in a pleading, or other forms of legal writing, every word should justify its place or be discarded. Brilliant. Let me repeat that: every word should justify its place in your legal writing.
When I have given talks to junior lawyers about pleadings, I try to pass on this idea of cutting out the foliage in your written work. I usually say: think Orwell or Hemingway; not Tolstoy or Dickens. Perhaps it should be: think of Dixon, Denning, Churchill or Lincoln. On Lincoln, the Gettysburg address, one of the most famous speeches in history, was delivered in just three minutes and was 272 words long. It followed a now forgotten speech by Edward Everett, a former senator, secretary of state and president of Harvard, which lasted two hours.
That brings me to my dear friend and colleague. He wrote recently of the Brexit legal decision in the UK and how eleven judges of the Supreme Court will sit on the appeal. He has a somewhat forlorn hope that it will be a simple joint judgment that lay people can follow.
My friend pointed to the judgment in the US Supreme Court in Brown v School Board of Education. That was the landmark case in which the Court declared state laws establishing separate public schools for black and white students to be unconstitutional. Chief Justice Earl Warren wanted a joint judgment short enough to be run by the newspapers of the nation in its entirety, that could be understood by all. He worked hard at this goal with the other judges. It finally happened. That was quite an achievement.
For those who follow our current High Court, particularly the labyrinthine decisions on immigrants and administrative law, it seems a forlorn hope that Warren’s lead will be followed in cases of public importance.
The great writing of Lincoln, Churchill, Dixon and Warren did not happen by chance. Gary Player, the great South African golfer, was not blessed with natural talent but still won nine major titles. He famously said that “the more I practise the luckier I get”. Greatness in any field comes about from a recognition that improvements can always be made. In the case of great writing, a commitment to clear writing is required. And a lot of practice and hard work.