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“The lawyer’s business is with words: They are the raw material of his craft.” – Lord MacMillan (1873 –1952)

1.           Lawyers and Writing

Despite his antique gender exclusion, Lord MacMillan was right. Lawyers are only as good as their language. A lawyer can have all the legal knowledge in the world, but if they can’t marshal the words to convey that knowledge, they and their work are the lesser for it.

It’s not only about craft. It’s also about ethics. Lawyers have an obligation to “perform any legal services undertaken on a client’s behalf to the standard of a competent lawyer”, says the Law Society of Ontario in Rule 3.1-2 of the of the Rules of Professional Conduct. It has “baked in” writing and drafting to the very definition of competence:

3.1         COMPETENCE

Definitions

3.1-1 In this rule,

“competent lawyer” means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client including

[…]

(c) implementing, as each matter requires, the chosen course of action through the application of appropriate skills, including;

[…]

(iv) writing and drafting;

(For lawyers’ common law duty to exercise reasonable care, skill and knowledge, see: Ristimaki v. Cooper, 2006 CanLII 12415 (Ont. C.A.).)

Beyond competence, lawyers have a professional duty to show care and respect for clients, the Courts, the profession, and the public. Written communications should reflect care and respect.

2.           Writing. Let’s Talk About It

You know the law. You may be the smartest one in the room. But, as we said, if you cannot express yourself well, wield words with precision, and convey your intended meaning – all your knowledge and smarts will sink into the murk of incomprehension and puzzlement. Factums, contracts, transfers, letters, submissions: so much of the lawyer’s work depends on writing.

Our aim here is not good writing. It’s best writing. About being the best lawyer one can be, by using the best writing one can do.

So let’s talk about best writing.

• A Prerequisite.

Know. Your. Language.

Too many lawyers just do not know their language. Examples abound. Bad grammar: “The Judge asked you and I to be there.” Bad syntax: “The Coroner’s office provided DNA samples from two men frozen in a stainless steel tank.” Bad vocabulary: “The defendant sent the plaintiff really gross emails.” Words can have power, but the sample sentences we just cited have too little power. Once corrected, they are stronger: “The Judge asked you and me (or us) to be there.” “The Coroner’s office provided two men’s DNA samples that had been frozen in a stainless steel tank.” “The defendant sent the plaintiff graphic, disturbing emails.”

So, weak language skills won’t do. Best writing demands work. What work? Two steps: 1. Reading, 2. Writing.

• Reading. We’ve listed some recommended readings below. There is an infinite amount of well-written content about writing waiting to be read. You should have no trouble finding the right stuff.

• Writing. Practise. Write a paragraph. Put it away for three days. Then reread it critically, asking yourself how it could be better. Read it out loud. Have a not-too-close friend read it back to you. Form a writing group. Exchange your work among friends. Find an editing buddy and edit each other’s work.

If a lawyer’s language and writing skills are sub-optimal, that lawyer may be in neglect of their legal and ethical duties to give clients the best service possible.

• Focus. Crispness. Simplicity.

That’s been one of my mantras— focus and simplicity. Simple can be harder than complex: You have to work hard to get your thinking clean to make it simple. But it’s worth it in the end because once you get there, you can move mountains. – Steve Jobs

Your best shot at achieving best writing is to keep it:

• simple and varied,
• crisp and memorable,
• unified and focused.

As the Honourable John I. Laskin observed in his paper Forget the Wind-Up and Make the Pitch: Some Suggestions for Writing More Persuasive Factums, written during his time in the Court of Appeal for Ontario:

Writing concisely is harder than writing at length. But taking the time and trouble to write better will make you a much better advocate for your clients and will enhance your reputation with the court.

• KYA.

Know Your Audience. You must. Typically, you are writing to or for:

• a client,
• opposing counsel, or
• the court.

Each one calls for a different kind of writing:

• information (client),
• assertion (opposing counsel), or
• persuasion (the court).

• A Professional Essential: The Business Card Principle.

Know the objective of your writing. What’s your goal? What are you writing about. Why? Remember The Business Card Principle: If you can’t write what your message is about on the back of a business card, you’re not ready to write.

• The One Rule to Follow.

Here it is: As much as necessary, as little as possible. Or: A.M.A.N.  A.L.A.P.

Write what you need to, but no more. That one rule alone will keep your writing focused, crisp and simple. Bear in mind what F. Scott Fitzgerald said: “You don’t write because you want to say something, you write because you have something to say”. Write what you have to say, not what you want to say.

3.           Back to Focus and Simplicity

Song lyrics such as the Beatle’s Yesterday or Pharrell Williams’ Happy show there is no need to use long words to tell a story. Most of the words in good songs are short, yet effective.

There are six key points lawyers need to consider every time they write:

1. Active voice, not passive voice.
2. Show, don’t tell.
3. Anglo-Saxon words (short, simple, direct) versus Norman words (long, complex and indirect).
4. Using powerful verbs.
5. Adjectives and Adverbs. Get rid of most of them.
6. Avoid the bad words lawyers use (heretofore, hereinafter, thus, in particular, etc.)

We all studied Lord Denning’s judgements in law school. Why were they so memorable? Like all great writers, he has much to teach us. We’ll take a much closer look, break down the writing and see why it worked. For now, re-read this famous passage from Beswick v. Beswick, [1968] AC 58, [1967] 2 All ER 1197 at least five times. Make your own notes about why you think it is (or is not) successful:

Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights. He used to take the lorry to the yard of the National Coal Board, where he bagged coal and took it round to his customers in the neighbourhood. His nephew, John Joseph Beswick, helped him in his business. In March 1962, old Peter Beswick and his wife were both over 70. He had had his leg amputated and was not in good health. The nephew was anxious to get hold of the business before the old man died. So they went to a solicitor, Mr. Ashcroft, who drew up an agreement for them.

Beautifully written. Easy to read. Now cut five words out, and see what happens. Now cut ten. Now more. See how many words you can cut, and still have this opening paragraph work. We’ll offer a Canadian example of simple, focussed writing in the next section.

Structure: Where to Start and How To Keep Telling the Tale.

Everything you write must tell a story. Where to begin? How to structure it? How to keep it interesting? One place to start is the Rule of Five.

The Rule of Five.

Every story breaks down into just five narrative points:

1. Exposition: Sets up the story. Gives context the reader needs. Most importantly it has the “inciting moment”, the event that sets the story in motion and forces the protagonist to react. It demands resolution, making for narrative tension.

2. Rising Action: The obstacles in the protagonists’ way as they try to resolve the inciting incident.

3. Climax: The story’s pivot point. The locus of highest tension. The big battle. The showdown.

4. Falling Action: The climax is over, the conclusion approaches. The calm after the storm.

5. Dénouement: The story’s resolution. Conflicts are resolved. Loose ends tied up. The reader’s moment of emotional release.

Think of your favourite movie or play. Hamlet. Spiderman. Try breaking it down into five key plot points. The Rule of Five. It works.

Almost all legal writing is a story-telling exercise. The Rule of Five will not always work for what you’re writing. It’s a start. It will not cure ungainly sentences, overly descriptive passages, weak and windy verbs, excessive adjectives, voice, pacing and sentence structure. Bit it’s a start.

4.           A Great Example: Justice Watt

One of the finest current legal writers for our money is Justice David Watt of the Court of Appeal for Ontario. You can see everything we have been talking about in much of his writing. His opening five paragraphs from the recent decision of R. v. Wood, 2022 ONCA 87, is exemplary:

Some good times and some bad times. An uncle and his nephew. Paul Curry and Shane Wood. They worked together for a time, then went their separate ways.

They argued. Then they reconciled. Except for their last argument when no reconciliation was possible.

Shane Wood killed his uncle Paul Curry. He set fire to his uncle and his uncle’s house.

Shane Wood was charged with first degree murder, arson and offering an indignity to his uncle’s body. A jury found him guilty on all three counts.

Shane Wood appeals his conviction of first degree murder. These reasons explain why I have concluded that his appeal fails and should be dismissed.

Bingo.

5.           In Closing…

Becoming a good writer is a process, not an event. A lifelong process. A never-ending process. And that’s OK. Writing is infinitely perfectible. There is much to learn. Always. And even then, once you’ve learned something, you may have to forget it and learn something new, since language is ever evolving.

So, embrace and enjoy the never-ending process of becoming a better writer. You will not regret it. Because, as the title of our paper makes clear, we believe that the best writers make the best lawyers.

6.           Things To Read To Help You Write

• Classic Rhetoric for the Modern Student byEdward P.J. Corbett, Robert J. Connors
• Thank You for Arguing by Jay Heinrichs
• Writing for Lawyers by Hollis T. Hurd
• Forget The Wind Up And Make The Pitch by Justice John I. Laskin
• Factum Writing, The Hon. Ian Scott
• Getting a Judge’s Attention, the Hon. Justice Paul M. Perell

• Anything by Ross Guberman –
  • Point Made: How to Write Like the Nation’s Top Advocates
  • Point Taken: How to Write Like the World’s Greatest Judges
  • Anything on his website legalwritingpro.com
• Dreyer’s English: An Utterly Correct Guide to Clarity and Style Kindle Edition by Benjamin Dreyer
• Writing for Lawyers by Hollis T. Hurd or any book on writing
• Garner’s Modern English Usage, by Bryan Garner
• The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Bryan Garner
• Woe Is I: The Grammarphobe’s Guide to Better English in Plain English, Patricia T. O’Conner
• Plain English for Lawyers, Richard C. Wydick
• Fowler’s Modern English Usage, any edition
• Politics and the English Language by George Orwell
• Strategic Legal Writing: Preparing Persuasive Documents, by E. Meehan, Q.C., Justice P. Lowry and B. Samuels
• Judgments by Justices Binnie, Watt, Laskin, Bellamy, Cardozo, Lord Denning
• The Oxford English Dictionary
• A book on language- e.g. David Crystal, Eric Partridge
• The Economist, or any other magazine with high writing standards

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Authors: Ronald D. Davis*, Robert Rotenberg⁺, Robert Macdonald*, Teodora Prpa*

*Fogler Rubinoff LLP ⁺Rotenberg Shidlowski Jesin, Barristers