Untaught Rules of Written Advocacy and Legal Drafting

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By Mr. Bhavya Nain[1]

Introduction

In India, written advocacy is a secret art. In India, it is only formally and perfunctorily taught in most law schools. Seniors do not pass on this art to their juniors. There lies the need to discuss this subject in extenso. Written Advocacy is one of the most crucial aspects of actual litigation process and, therefore, there is need for more extensive public discussion and deliberation on this topic. Written Advocacy does indeed make or break a case. Written advocacy cannot be side-lined by oral advocacy as both are equally important and necessary. In most law schools, we are taught only limited theoretical rules of legal pleading, such as, plead on material facts and not law, etc. This approach is highly inadequate. Outside India, there is a lot of jurisprudence on the topic of written advocacy. Unfortunately, the same has not much happened in India till now.

In this Article the author intends to give a practical primer and introduction to certain basic rules of legal drafting and written advocacy. These are in no way exhaustive and are neither intended to be so. The most basic rules of written advocacy are given below:

Firstly, forget the legalese.  This rule differentiates an average drafting lawyer from a seasoned and matured senior lawyer. We are all taught legal jargon in the law schools. When we pass out, we try to overload any brief/petition with all kinds of legal terms and legal jargon in order to impress our seniors and our clients. However, this approach does not help in winning the case. The main reason behind this is that a seasoned judge can cut through all legal jargon and can understand the true merit of the case at hand. Over emphasis on legalese only increases the chances of failure because the court has limited time to spend on every brief/petition. The court can either spend time on scanning the brief deciphering the legal jargon or can spend the same time on understanding the true merit of the case. Legalese must be used only if absolutely necessary. Unlearning excessive Legalese is the process of learning to become a senior.

Secondly, write only in plain language. This rule is undermined by many. Any junior lawyer and intern would agree that he/she may have seen many lawyers writing single sentence which stretch up to a full paragraph of 100-200 words without a single period. This is a wrong approach to legal drafting. Generally, a judge, like any human, has a limited attention span. Simple sentences convey more and better ideas in lesser words. It is a false assumption that only lengthy sentences with riders and provisos can be powerful and effective. Plain language is the strength of many seniors.

Thirdly, do not use such language in the brief/petition, which you cannot speak easily. This golden rule of written advocacy was given by Mr. Bryan Garner, a noted speaker on advocacy. This rule can be used as a thumb rule whenever one is doing legal drafting. Complicated and complex sentences are a complete no. This is one of the most secretly guarded rules of written advocacy in India. Whenever we see a senior lawyer drafting briefs, we may notice that he or she always attempts to simplify rather than complicate the legal and the factual arguments in the pleadings.

Fourthly, write a persuasive brief. Merely, stating all the law or facts is not good enough. There must be connections and smooth transitions in the brief. Many a times it happens that the lawyer knows the law and facts but due to paucity of time and attention he just vomits the text for the brief to the typist. This approach cannot win cases. There must be deliberation as to what has to be proved and what all needs to be written in order to prove it. Persuasive briefs always try to solve and explain issues and do not complicate issues.

Fifthly, good legal writing need not sound as though it is written by a practising lawyer. Many a times, some average lawyers use certain terms and certain legal concepts in order to distinguish their argument from a layman. There is no need of doing so unless it is required for the success of the case. Many a times, legal concepts are incorporated into briefs/petitions just to show their legal knowledge. The thumb rule should be whether the same are needed for winning the case. Many Seniors do follow this rule.

Sixthly, brevity is a virtue. Filling pages is a virtue of only some average lawyers. It has become a culture in India to fill pages in briefs/petitions. A 200 pages brief must be better than a 20 pages brief. This is the notion which prevails in the minds of many lawyers. However, this is a wrong notion and practice. The court has only limited time to peruse a particular case record. By overburdening it with unnecessary and superfluous written arguments nothing constructive can be achieved. Seasoned lawyers know and follow this rule.

Seventhly, a brief/petition is different from an academic paper or an article in a law journal. It has been the experience that some lawyers armed with their experience of moots; papers, etc. try to make an all-encompassing brief. Also, some inexperienced lawyers start from the letter A and end with the letter Z. This is wrong. A brief must have only the necessary facts which are essential for him or her to get the relief sought. Anything else is an extra burden. The court does not generally have the time or the attention span to separate essential facts from the non-essential.

Eighthly, do not hide your main argument. It has been the experience that some average lawyers in order to get momentary advantage of surprise shield their main argument from the opposite lawyer. This is wrong. This is wrong because by doing this you are also hiding the main argument from the court. The court, many a times, does not have the time to scan to all the arguments, in detail, and then select the best arguments and then scientifically deal with all of these.

Ninthly, devote more text to main points/ arguments. Sometimes, it happens that in order to make an all-encompassing brief, we miss to highlight our main points/ arguments. By devoting more actual text to the main points we automatically highlight them for the reader. Less text should be devoted to supplemental arguments and points. It must be noted that devoting less texts to supplemental arguments and points does not hamper the case. This is because a plea, howsoever brief, once taken can always be expanded and elucidated by way of oral arguments.

Conclusion

James Mc Elhaney, once said, “Most of the concepts you struggled to master in law school can be grasped by the average twelve years old. It is the vocabulary training that makes it such a drudgery.” The message behind this quote is that we must adopt simple language and English in legal drafting. This is beneficial both for the Court as well as for the lawyer. Legalese and verbose legal petitions are a way of the past. The senior lawyers already know this. However, this knowledge is not adequately publicized or transmitted. There needs to be open debate and dissemination of information on this topic. The author has tried to briefly touch some of the untaught principles of legal drafting which have been learnt by experience. The author will further delve into this subject in coming articles.


[1] Advocate, Supreme Court of India; and Former Law Clerk-cum-Research Assistant, Supreme Court of India.

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