Benjamin Bestgen: Legal writing

Benjamin Bestgen: Legal writing

Benjamin Bestgen

Benjamin Bestgen this week encourages lawyers to consider the craft of writing. See his last jurisprudential primer here.

George Orwell opined in 1946 that written English “is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble”. His essay focussed on political writing, which Orwell diagnosed with obscurity by design, verbosity, jargon, muddled thinking and insincerity, amongst other things. Noting that our current Prime Minister is a political journalist by trade, not much has changed here.

However, legal writing seems to have improved somewhat. Lawyers in academia, private practice, in-house and the public sector increasingly aim for plain English and widely comprehensible language. Some even try to tailor their customer-facing documents to the medium customers will read it on, e.g. smartphones or tablets.

But clarity of expression and mastery of language isn’t something we are born with. The ability to read and write is in evolutionary terms incredibly young. Even nowadays, the National Literacy Trust estimates that ca. 7.1 million people in the UK have very poor literacy skills.

Lawyers are professional writers: we need to ensure that our thinking and language are clear, so our documents and advice are as comprehensible as possible. Any legal writing style should be such that our audience benefits from enhanced and quicker understanding of our analysis and advice.

Questions of style

Style, defined roughly, expresses how an author presents her reasoning and tells her stories. Choice of words, paragraphs and sentence structure, command of grammar, use of metaphors, analogies, humour or data presentation form part of a writer’s style.

Legal style matters because the spoken and written word is a jurist’s (and philosopher’s) most prominent tool of trade. The advice we give, the documents and opinions we draft, our advocacy in court or in negotiations have generally real-life consequences, based on how people understand us and act accordingly.

Judges are maybe even more alert to this than other jurists. In a speech in 2012, Lord Neuberger suggested that judges should state the law in a clear, unambiguous way, explain it consistently and coherently develop it to account for societal changes. Facts, issues, outcome and reasons need to be stated precisely so people can have greater trust in the justice system. Some took that to mean that judicial writing should be factual, impersonal, focussed on the law and embrace a plain, logical style without humour or personal flourishes from judges.

The personal touch?

Former US judge and academic Richard Posner considered that judicial style can be relevant to develop jurisprudence beyond purely formalistic repetitions of precedent and stating the seemingly safe conclusion reached.

Posner suspected that the formalistic “fact-law-apply-conclude” style saves jurists from having to say: “We have very little sense of what is going on in this case. The record is poorly developed, and the lawyers are lousy. We have no confidence that we’ve got it right.”

Some jurists also consider that matters of ethics, politics, history and social values are appropriate considerations to take into account. Counsel and judges don’t only address the lawyers or appeal courts but often also the media, politicians, academics, sometimes even history itself. The formalistic style is not well suited to express such thoughts.

Likewise, humour can make a point more memorable, comprehensible or forceful. The late Lord Rodger of Earlsferry considered that humour needs to be treated with caution because legal cases are serious for the parties involved: attempts at humour by counsel or judges could easily be perceived as confusing, discourteous or embarrassing. That said, Lord Rodger noted that examples of successful inclusion of humour in a judgement tended to be delivered by judges who had complete mastery of the subject matter and its implications.

He lauds judges whose individual speeches gave us “the humour of Lord Macnaghten, the classical elegance of Lord Wilberforce, the Whig history lessons of Lord Bingham and the philosophical insights of Lord Hoffmann”. And as the law, especially the common law, develops organically from the courts, the personal style of judges can assist in making the law more relatable and demonstrate that judicial reasoning is a deeply human affair.

Which style to choose?

Learning by imitating more experienced colleagues and writers we respect will never cease to be the main source of our daily writing practice. But lawyers should also learn consciously about questions of style, grammar, tone and presentation, maybe more than legal training actively focusses on.

Ultimately, your choice of legal writing style should depend on your audience: once you are clear about whom you are addressing and what your words must achieve, you can go about crafting your opinion.

And on a less pragmatic note, writing in a well-structured, comprehensible manner is also not only an aesthetic pleasure. It’s arguably a civic and professional duty of jurists; at least if we believe that law is made by people for people and should be understandable to as many of us as possible.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.

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