Untaught Rules of Written Advocacy and Legal Drafting-Part V

By Mr. Bhavya Nain[1]

This article is the fifth 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],  here[4] and here[5]. The aim of the present article is to elucidate one of the most fundamental rules of all legal drafting which is to make a persuasive brief. The present article explores this concept of the persuasive drafting. This concept has been widely espoused by Mr. Bryan Garner, a leading authority of the art of the making legal briefs.

First we must understand that what is meant by making a persuasive brief. A brief which is a mere haphazard collection/aggregation of the facts and the law is what we call as an unpersuasive brief. A brief which mechanically states the law and the facts is what we call as an unpersuasive brief. A brief which is not a convincing brief is what we call as an unpersuasive brief. Thus, a persuasive brief is one which does not contain any of the above-mentioned the negative elements/characteristics.

The persuasive brief is one which understands one basic premise that the judge is also a human. A judge being a human has to be made to be convinced on the merits of the case; and the judge should not be made to work excessively to decipher a complex legal brief to himself understand the underlying logic behind the brief. This point bring us to one of the basic principles of a persuasive brief which is that the persuasive brief must be able to demonstrate a underlying unfailing logic behind the claims made therein. The legal brief must appease to common logic and should not look as a technicality.  The legal brief should be made in a fashion that your claims mentioned in the legal brief should seem logical and reasonable. The legal brief should not be abhorrent to the basic human logic and the common-sense. The judge are frequently annoyed with briefs which are absent in these requirements. The judges try to maintain the standard that they should do justice in every case. We must remind ourselves that: How can a justice said to be done by allowing a claim in a legal brief if the same is abhorrent to all human logic?

This brings us to three basic rules of the persuasive legal drafting:

First, a lawyer should aim to convince the Court that if it decides in your client’s favour, it will have done the right thing.  The law comes later on. We must first appease to the judicial mind of the Judge that he is not doing any wrong thing or any injustice if he allows our claims. The Judges are always wary of doing injustice to any party. So your brief should be designed in this fashion that after reading it, one must come to the irresistible conclusion that it would not be wrong to allow the claims mentioned in the legal brief. Thus, the brief should be right on the first/basic principles.

Second, in addition to the said moral pleas/propositions, a lawyer should convince the Court that if they decide in your client’s favour, it will have not done anything legally incorrect. The Court does not try to do something which is absolutely and clearly and palpably legally incorrect. So, though, moral persuasion is required but, by itself, not enough.  It is the tasking of the lawyer to give legal basis for his claims. This may not necessary mean flooding the Court with the precedents and the legal citations. It means that we must, at the very atleast, invoke and point out the provision of the law under which our claims can easily fit in.

Third, in addition, a lawyer should convince the Court that the facts given in the brief and credentials of your client are both credible.  It is easier to believe a saint rather than a thug. It is easier to believe a respected person than a habitual offender. Thus, it has been seen that generally the experienced lawyers correctly make a deliberate effort in the legal pleadings to show that both the facts stated therein as well as the client are credible and trustworthy.  It has been the experience that the Court is always sceptical while allowing and granting relief to the shady person/entities. So, we should ourselves demonstrate that our client does not fall in this category.

To conclude, the legal drafting is not an easy art/science as it may seem. A huge difference is there in making a passable legal brief and a superior persuasive legal brief. We must strive to aim to make persuasive legal brief as the same may increase the chances of the success for our clients. The author hereinabove has explored this concept and given certain discernable principles in this regard. These are a product of the legal experience and the legal research. The author in the forthcoming articles will elucidate more on other such principles of the art of the legal drafting.