Legal writing and Drafting

Theoretical overview

A well-drafted document in my opinion can make or break a case. A legal document, regardless of whether it is a plaint, affidavit or contract serves two purposes – informing and engaging both the client and the court about the legal issue. It is essential for lawyers and judges to draft all legal documents with clarity, such that the essential facts are conveyed even to a layman who may be reading it.

It is thus imperative that one refrains from using legalese or legal jargon while drafting a legal document. A legal document strewn with unnecessary and complicated phrases loses its purpose if the meaning is not conveyed to the reader in its entirety.

Legal drafting skills are also important as they ensure that the legal document is structured properly. This guarantees effectiveness and authenticity. For instance, overusing negative statements can make a document appear aggressive and confrontational. Hence, it is important to be cautious while one drafts legal documents, so that its balance and structure are maintained.

While most legal documents have a particular template format that can be referred to, be it a notice or a plaint, legal drafting also includes the art of drafting authentic documents. This means drafting the document on a case-to-case basis instead of blindly following a particular template. The lawyer is also to ensure that all facts, statements and law put into the document are verified and supported by evidence, case law or statute.

Common Concerns Associated With Legal Writing

Over the years, a multitude of law students have come to me for internships. While many of them are excellent researchers, I have noticed that a majority of them lack the skill of effective legal writing as the same is not emphasised upon or given any importance in the law school curriculum. A few of the concerns associated with legal writing include:

 • too much verbosity

 • lack of focus and clarity

 • failure to identify the issues

 • incompleteness

 • poor grammar

 • lack of overall organization and structure

What Makes A Legal Document Well-Written?

Many a time, we construe a well-written document to mean one that accomplishes the writer’s intended purpose. While this definitely makes the document effective, it does not necessarily make it well-written. On the other hand, a document can be well-written even though it does not advance the writer’s purpose. For instance, if plaint has weak legal arguments, it is not going to convince the court, even if it is well-written.

Effective legal writing involves looking at the needs and interests of the reading audience. The content of a legal document must be understood by the audience who is reading it. The legal reader’s purpose for reading the document is to extract information that will facilitate decision-making. Hence, a document is well-written only if it facilitates decision-making. A lawyer must therefore identify his target audience as a first step.

Clarity is Key: Recently, Supreme Court Justice MR Shah while hearing a SLP, stated that he had to use tiger balm after reading an incomprehensible judgment passed by the division bench of the Himachal Pradesh High Court. In contrast, in another case, the Punjab and Haryana High Court approved a lower court judge’s use of simple language- observing that simple language is the strength of any writer. Clarity is key to legal writing. To obtain clarity, the writing requires proper grammar and punctuation Another method to maximise clarity is to use ordinary words and simple sentence structures, ie, plain language.

Be Concise: A fundamental quality of good legal writing is conciseness. Concise does not merely mean brief, rather it is efficient. Concise writing conveys the writer’s points without the use of redundant words, and with adequate detail. Concise writing is writing that is as simple as possible without restricting the amount of information conveyed.

Engage The Reader: Good writing also engages the reader. It encourages the reader to engage with the material by agreeing with it, disagreeing with it, generating the reader’s own ideas, etc. In other words, it stimulates the reader’s thinking. And it is this quality that separates truly good legal writing from merely competent legal writing.

The Art Of Persuasive Legal Writing

Making Choices: Legal writing includes explaining the legal theory and the factual background such that it constitutes a coherent and credible whole. That means making choices. You may have to make choices between inconsistent legal theories or cull out the weak points. It is also important to not get carried away. The ease of electronic editing has made it easy for us to copy and paste large chunks of information, even if it is irrelevant to the case. Resist the impulse to put your reader through everything you had to learn to write the brief.

Tell A Story: Humans have since time immemorial resorted to story-telling to understand facts and resolve issues. Everything in the law is also a story. Hence, the winning legal document is the one that tells the most persuasive story. Anyone reading your document should be able to understand what the case is about without having to look at anything else. Additionally, the statement of facts should be explained such that it makes the reader take your side.

Connect the Facts to Legal Principles: Principles will have meaning only in the context of actual facts and events. Your job as a legal writer is to connect the legal principles to the specific facts of your case, such that it compels your reader to apply it the right way.

Make Your Writing Standout: In order to make your writing stand out, you need to first have a theme or a strong central idea to your legal document. Second, start strong and end strong, ie,  start and finish with your two best arguments. Finally, illustrate what you have to say. We often underestimate the effectiveness of examples. Every point worth making is worth illustrating. By keeping these tips in mind, one can ensure that all legal documents drafted by him/her are well-written and also effective. Like in any other skill, practice makes perfect, therefore I urge all of you to actively engage in legal writing and drafting, or in other words- storytelling.

 Forms of Legal Writing and What Makes Them Different? 

Why is it necessary to figure out the form of legal writing? 

The answer is really simple. Different forms of legal writings have different structure and flow making it necessary for the author to determine the form. Every form of legal writing requires a different approach and prescribes a standard word limit. 

most common types of legal writings are

1. Blog Post: It is very important to choose a topic/area of law that requires a knowledge gap to be filled or has a built-in interest for the readers. Blog posts generally include writings that cover novel analysis of recent developments and contemporary issues of law. The fundamental purpose of blog posts is to help the readers understand any recent development of law succinctly. Blogs are generally concise in nature and can range from 1500-2000 words. The structure or format of a blog post can ideally be – Introduction of the topic, Legal analysis of the Issue and Conclusion (including insights from the author). It is suggested to keep the nature of the blog post more analytical than descriptive.
2. Research Paper: To start with, research papers or research articles can range from 3000-8000 words. Any research paper is the representation of the legal thinking of an author which is backed by reliable sources and authorities. Unlike all other forms of legal writing, a research paper starts with an abstract which is essentially a brief introduction to the topic and a road map to the paper. The abstract should ideally be limited to 175-300 words. The introduction should include the purpose of the paper, a short and relevant literature review and a clear statement about the aim of the paper. The body of the paper should aim at analyzing multiple legal aspects of the same topic for instance cross-jurisdictional implications of a particular law, comparative analysis of the laws in different jurisdictions, the present and past approach with regard to the enforcement of the law, etc. Avoid extensively discussing published literature, rather make unexplored aspects of law, the focal point of discussion. The conclusion should be directly supported by the data that you present. Avoid making generalized conclusions that have not been substantiated by your research. 
3. Case Comment: Case Comments are short pieces of academic writings about judicial decisions and are commonly categorized as extended commentaries. They vary from circa 2000-3000 words. The author should always keep in mind that the purpose of a case comment is to provide an academic insight into judicial decisions. He/she should have a rough idea of the possible ways of analyzing the case, for instance, a comparative analysis of the case at hand with different cases on the same subject matter or in relation to the current social and political situation. A successful case comment combines descriptions and analysis. The case itself needs to be described succinctly. It should ideally start with a short introduction paragraph, setting out the context for discussion. Followed by description or background information which should include facts of the case, a brief legal history, the main legal issues and judgments. The next segment should include case analysis where the author should critically examine the reasoning behind the decision of the judge and explain the implications of such decision in the recent times. 
4. Case note: Case note is the simplest, shortest, most descriptive account of a case. A case note can range from 300-800 words. The author should use discursive argument to synthesize a wider body of material to establish a position on some law related point. The writing of a case note follows a specific format unlike a case comment and materials which are irrelevant for a case note, might be relevant for a case comment. It is important for the author to know how to deconstruct any judgment into facts, issues, legal procedure, arguments of the parties and points of law provided by the judge. After the deconstruction method, the author should reconstruct and organize the pieces in a manner which would highlight the reasoning behind the judgment. 
5. Legislative Comment: Legislative comment is similar to case comment and follows the same format. Legislative comment includes an analysis of any act, amendment, regulation, notification, circulars or guidelines. The author should provide a background of the legislation, its implication on the society and his/her insights on the same with reference to the recent times. Legal Essay: It is very important for the author to have an in-depth knowledge of the relevant law for accurately describing it in an essay. Legal Essays are generally short pieces of writing where the author provides a personal opinion on a narrow aspect of a wide legal issue. It is pertinent for the author to provide a clear structure to the essay and include less obvious laws or arguments. It is always advisable to highlight and discuss controversial or less discussed arguments. The author can facilitate such analysis by including relevant policy considerations, historical development or genesis of the law and academic controversies surrounding the same. Book/Movie Review: A book/movie review is a very personal and critical analysis of the plot. The author should ideally start with the Introduction which can include the title, release date and the background followed by the summary of the story. It is highly suggested to analyze legal plot elements in the book/movie which will form the foundation of the opinion put forward by the author. At the end, the author should provide an evaluation and suggestive solutions. 

Referencing Footnotes & Endnotes

Footnotes and endnotes are popular ways of referencing in legal writing. They appear at the end of a claim, sentence or word to indicate its authority, in accordance with the uniform reference format chosen by the author. They may also be used to represent non-bibliographic sources like comments or observations. The main difference between the two is that footnotes appear at the bottom of the same page, whereas endnotes appear at the end of the entire paper all together. Their advantages and disadvantages are corollaries of this difference – footnotes are easily located and guide readers to the authority directly, but on the other hand footnotes can appear cluttered, distract the reader and disrupt the format. On the other hand, endnotes do not clutter the page and allow the reader to access all the authorities in one section – which may also be cumbersome or confusing for someone looking for a specific source. When choosing between the two, one should keep in mind their purpose of referencing – is it critical to have that source cited on the same page? Are there too many citations compromising the format of the paper? Another important consideration is the length of the paper itself – for shorter pieces like essays and short articles, endnotes are preferable as they don’t break the readers’ flow and are easy to locate. This is also why most blog articles use endnotes for referencing non-digital sources, if at all. For longer pieces that are divided into various chapters or sections, footnotes may be more convenient to guide readers to an authority or further information. Both footnotes and endnotes tend to be supplemented by a bibliography or works cited page. In Text Citation – This style includes the full citation to the authority immediately after the relevant text, directly or in parentheses (depending on the referencing format). If one plans to refer to the source later, a short form is provided alongside the citation. Alternatively, just the short form is used throughout the text and the complete citation is provided in the bibliography/works cited section (as in the APA format). Bibliography – A Bibliography is a complete, alphabetical list of all sources used for an academic piece, which appears at the very end. It can include sources that may not have been cited directly in the piece itself, but were referred to by the author for the purpose of research and writing. Bibliography serves a different function than footnotes or endnotes, the latter providing more specific information than the entry in the bibliography.

 Accordingly, the format also different and cannot be copy pasted in the end. For example, a footnote cited in OSCOLA format can be – H.L.A. Hart, The Concept of Law (OUP 1961) 55. In the bibliography, it is Hart, H.L.A., The Concept of Law (OUP 1961) Hyperlinking – Hyperlinks are usually used in short, informal and digitally published legal pieces such as blog articles, case notes or online newspaper articles. Any source available on the internet is hyperlinked to the relevant words in the text, and allows the reader to directly access the source of a particular claim by clicking on the hyperlinked portion. This method has gained popularity for its convenience and simplicity, but is discouraged in academic writing (even for e-journals). Citation Formats: There are many citation formats that can be used to cite the sources supporting your research. The most commonly accepted ones are: OSCOLA – The Oxford University Standard for Citation of Legal Authorities (OSCOLA) is a guide to legal citation and not a style guide. OSCOLA is updated every two to three years and the latest edition is the Fourth Edition. Note that OSCOLA does not purport to be very comprehensive but provides rules and examples for citing primary as well as secondary sources in footnotes. Link: The Bluebook – The Bluebook System of Citation is published by the Harvard Law Review Association in conjunction with the Columbia Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal. 20th Bluebook is the latest edition. Note that bluebook is a style guide and is widely used in the USA. Link: < https://www.legalbluebook.com/> Standard Indian Legal Citation – Standard Indian Legal Citation (SILC) is a manual curated by Indian lawyers and academicians to usher in uniformity in legal citation practices across India. SILC aims to fill up the gaps by comprehensively providing the style to cite Indian Legal sources and materials which the foreign citation systems fail to cover. Link: Modern Language Association (MLA) – MLA method of citation follows the author-page method of in-text citation. The Eighth edition of the MLA citation format prescribes a uniform and standard format for all sources. The MLA style of citation makes it easier for the reader to not only look at the citations to understand them, but to possibly explore them as well. Link

Points to remember

1. A well-drafted document in my opinion can make or break a case. A legal document, regardless of whether it is a plaint, affidavit or contract serves two purposes – informing and engaging both the client and the court about the legal issue. It is essential for lawyers and judges to draft all legal documents with clarity, such that the essential facts are conveyed even to a layman who may be reading it.
2. Legal drafting skills are also important as they ensure that the legal document is structured properly. This guarantees effectiveness and authenticity. For instance, overusing negative statements can make a document appear aggressive and confrontational. Hence, it is important to be cautious while one drafts legal documents, so that its balance and structure are maintained.
3. Many a time, we construe a well-written document to mean one that accomplishes the writer’s intended purpose. While this definitely makes the document effective, it does not necessarily make it well-written. On the other hand, a document can be well-written even though it does not advance the writer’s purpose. For instance, if plaint has weak legal arguments, it is not going to convince the court, even if it is well-written.
4. Footnotes and endnotes are popular ways of referencing in legal writing. They appear at the end of a claim, sentence or word to indicate its authority, in accordance with the uniform reference format chosen by the author.
5. The main difference between the two is that footnotes appear at the bottom of the same page, whereas endnotes appear at the end of the entire paper all together.