When reading a legal document, or studying something prepared by your lawyer, the layman is often left bewildered and in need of gentle assistance to understand what is before them. That is due to that vital legal skill, for lawyers and paralegals alike: legal drafting and writing.
Even a simple agreement or contract, or a simple argument to a court, can be (seemingly) rendered overly complicated when put in formal legal document or court submission. It is that legal writing, though, that is absolutely invaluable to the legal practitioner – although admittedly often puzzling and overly formal to the layman.
Learning how to draft submissions for a case, lodge an appeal, write a proper Judicial Review, write the various parts of a bundle for court, and similar is very important in the legal world. In many cases, the court, tribunal or review board will see those written submissions and papers first, prior to any interaction with the lawyers, or any verbal arguments. Consequently, many will form first impressions of the case, and the merits of the arguments of each side, from those written submissions. Effectively, those written arguments form a written first impression.
Further to that, many hearings are settled and decided on paper submissions, as opposed to oral arguments in a hearing. Increasingly, especially in some civil areas of law, such paper hearings are becoming more commonplace. That trend is only set to continue with reforms such as court closures, and increasing efforts to streamline court and legal services.
Of course, no judge or tribunal or panel would ever be so unprofessional as to bias or base their verdict and opinions upon paper submissions if there was a full hearing upcoming. No judge or panel would be so unprofessional as to be swayed by the nature of the submissions and how the papers are drafted and written, and appear. A judge or panel will only ever be swayed by the merits of the legal arguments advanced. However, the same human nature is present in everyone. An organised, well presented bundle that is helpful to the court in its appearance and layout will doubtless be received and perceived kindly by a judge dealing with a great many such bundles. A poorly drafted, rambling and confused appeal submission will probably find the appeals tribunal not so favourably inclined. That is something for the lawyer or paralegal to bear in mind.
For anyone involved in drafting or writing legal documents, there are several key matters that need to be considered and addressed.
Firstly, know the format. Each type of legal document, be it a letter, submissions to a court, application for bail, application for Judicial Review, etc has their own format, and style. It is necessary to keep to that (often very strict) format. With that in mind, know and use the correct legal terms and phrases. Each area of law comes with its own unique and archaic collection of terms, set phrases, expressions and written conventions which are used freely. Once again, it is vital to use those terms in that particular document. A will had to start somewhere with the formal phrase “I hereby revoke all other wills and testaments,” or similar. An asylum appeal will usually use terms such as “actors of protection”, “the Convention” (for the 1951 UN Convention on Refugees), and “internally displaced people” very regularly. All that is fairly obvious; but there are many cases where such simple matters of legal drafting have not been adhered to. Needless to say, that does not endear the reader to the writer or the lawyers.
Whilst drafting, it is necessary to refer to legal cases, precedents, reports, news articles or statutes. The good legal writer needs to demonstrate a certain balancing act here. Sometimes, it is necessary to quite directly. At other times, it is better to summarised of paraphrase. Knowing when to do either, for best effect with the legal argument advanced, is a skill that is developed over time and in accordance with the writer’s own style. No one likes a submission or bundle that is essentially pages and pages of quotes. Similarly, no one likes submissions which do not directly refer to the source material. It is a balancing act.
Above all, with any legal document – formality is key. The rules of legal writing, the archaic conventions of the law, and the fact that it is a legal document, leave no misunderstanding that the writing and style should be formal. Clear and concise without waffle or anything extraneous – but also very formal, and politely phrased.
Legal documents and submissions need to be straight to the point, and to outline a certain line to argument, often very complex and intricate. Whilst cutting out anything superfluous, at law it is always the detail which is so important. With that in mind, though, the document needs to be formal in style and appearance for the court
It is because of that mixture of detail, argument, and inherent formality that legal drafters and writers end up with a document or court submissions which to the layman are incomprehensible. To the layman, the formality is a barrier to understanding. To the layman, it can be bard to follow the line of argument due to the nature of the presentation of the various submissions.
That is why legal documents and applications are often such a mystery to the layman, or the individual seeking justice, and need to be patiently explained by the very lawyer who took such care and time in drafting it. That is also why lawyers and paralegals have a reputation regarding playing with words, and excessive formality.