Untaught Rules of Written Advocacy and Legal Drafting-Part IV

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By Mr. Bhavya Nain[1]

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Introduction

This article is the fourth article in the current series on the legal drafting and legal pleadings. The previous articles in the series can be found here[2], here[3] and here[4]. The aim of the author in the present article is to explain one model legal writing process. This model legal writing process is advocated by Mr. Bryan Garner, a noted well renowned speaker; and one of the foremost authorities on the legal writing. This writing process is known as the Madman-Architect-Carpenter-Judge approach. If this Madman-Architect-Carpenter-Judge approach is adopted, then the person adopting it will definitely write better legal briefs with minimum hurdles and/or difficulties.

The Madman-Architect-Carpenter-Judge approach

This writing process was originally given by Betty S. Flowers, Professor of English at the University of Texas. This writing process was developed be her to solve the hardest problem of any kind of writing: how to write without getting stuck at any stage; and how to scientifically write anything? This approach breaks down [legal]writing process into 4 stages/parts. These are:

Firstly, the Madman stage.  The first stage of an ideal [legal]writing process must start with the Madman approach. By Madman approach, we mean that at the very first stage of the legal writing, one must pen down his/her ideas and thoughts and reflections on the issues to be written about like a madman would do, without any reserves/inhibitions. At the first stage of the legal writing, one must pen down any and everything he or she may feel relevant. Like a possessed madman, one must churn out as many pages of writing work without worrying much about grammar, sentence structures, etc. at this stage. The main idea is to not to miss on any possible idea and thought which can be developed into a proper legal/factual proposition later on.

Secondly, the Architect Stage.  The second stage of an ideal [legal]writing process should be to follow the architect approach. An architect makes the broad plans and structures. Like an architect, the writer in the second stage, must try to rearrange the text produced in the madman stage and make it into a better readable material. The writer must rearrange the text produced in the madman stage dispassionately and should keep in mind the broad plan to be achieved by writing of the legal brief.  The aim of the writer at this stage is to broadly interconnect the ideas and propositions penned down in the madman stage. The writer may also have to delete certain random ideas/propositions penned down in the madman stage from the draft legal brief.

Thirdly, the Carpenter Stage.  The third stage of an ideal [legal]writing process should be to follow the carpenter approach.  The writer by acting as a Carpenter implements the broad plans of the Architect by looking into the issue of the sentence structuring. At the carpenter stage, one must ensure that the legal draft must have simple and correct legal English; and the must be smooth transitions within the text of the legal document. It is the aim at this stage that the text must have smooth English.

Fourthly, the Judge Stage. The fourth stage of an ideal [legal]writing process should be to follow the Judge approach. At this stage, the writer must act as a critic of his own legal draft produced by following the previous three writing stages.  At this stage, the writer must look at the legal draft both at the macroscopic and the microscopic level in order to try to identify errors in his own draft, as if he was an independent judge judging the legal draft. Even all small details like commas, spellings, etc must be looked into at this stage, so as to make the legal draft perfect.

To conclude, the aim of the said madman stage is to pen ideas/propositions; the aim of the said architect stage is to organise them; the aim of the said carpenter stage is to synchronise/nail them; and the aim of the said judge stage is to dispassionately criticise and improve them to the last detail.  The author opines that this famous four stage approach to the legal writing and the legal drafting is critical to come up with the superior legal briefs.  The author in the forthcoming articles will delve into more rules and formulas for better legal drafting.