It is written
Writing is an essential, but sometimes overlooked, skill for lawyers to master.
As a criminal lawyer, Andrew Bigioni says he spends a surprising amount of time writing.
"People imagine most of my work is in court arguing, but as a practising lawyer, there is so much written advocacy… whether it's opening emails to a Crown attorney, or emails to conduct a negotiation and set out your position, or written correspondence like disclosure request letters and Charter notices,” says Bigioni, of Daniel Brown Law LLP in Toronto.
“And then there are formal written materials like factums and actual Charter applications."
Bigioni says his legal writing training in law school at the University of Ottawa has been helpful in his career.
"I don't think there is an area of my practice that hasn't been developed and improved upon [from writing well]," he says. "The more directly and clearly you are able to express your arguments and your position, the better you are going to be able to advocate for your client."
Virginia McRae, professor of law at the University of Ottawa, says that legal writing is a necessary skill for all lawyers.
"Lawyers have only one real tool, and that is the ability to communicate," says McRae, who has been teaching legal writing since 1979. "You may have brilliant ideas, but if you cannot explain them clearly in writing, then you haven't done your job."
McRae says she thinks that most lawyers don't believe they have a problem with writing.
"Most lawyers know words. They know how to express their ideas. But they don't necessarily know how to do it well," she says. "Writing has to be a conscious, careful, deliberate training program right from the beginning of law school until you finish your career."
McRae has the following tips for improving your legal writing:
1. Simplify your writing, especially for complex topics
One of the biggest problems that McRae sees is lawyers assuming that the reader can do the "heavy lifting" to figure out what the lawyer is trying to convey.
"They assume that every reader, a judge or a client, has a responsibility to figure things out -- to find out the message or look up words in the dictionary," she says.
But McRae says the lawyer is responsible for ensuring that their reader can grasp the message.
"It's up to the lawyer, as the writer, to make sure that every little bit of their writing in that document is crystal clear, right from the structure, the tone, the word choice, everything is aimed at the quick and complete comprehension by the reader," she says.
Clarity is particularly important with complex content, adds McRae.
"You cannot make the reader work hard at two levels -- understanding the content if it's a complex and difficult matter and understanding your communication. You have doubled the burden on the reader," she says. "The more complex the idea, the simpler the writing has to be."
2. Practice, practice, practice
"Never be afraid to write. It's a skill. You have to work at it," says McRae.
She says that self-awareness is essential.
"You have to be aware of your own writing. You need to be ruthless with yourself and not have a big ego about it because you will need to seek intelligent feedback."
For example, if a senior lawyer re-writes one of your documents, McRae recommends that you take that opportunity to learn.
"Bring some intelligent questions: 'I see you changed the introduction. What did I miss? What can you tell me that will help me improve? I want to make sure that I am doing the best job for you.'"
3. Find examples of good writing
McRae says that reading and analyzing good legal writing can help you improve your own skills.
"You need to find good models," she says. "You are not going to copy and you need to find your voice, but you need to recognize good writing and start unpacking what makes that good writing."
She recommends thinking about what makes that writing appealing, for example, tense structure, effective verbs or word choice.
Bigioni agrees and recommends that lawyers "find good legal writers and see if you can read a factum that they authored, then you can use that as a template."
4. Recognize the purpose of legal writing
"Every part of legal writing is problem-solving," says McRae. “Creative writing is entertaining. New writing is informing. But legal writing is to help the reader solve a problem — whether you are judge trying to decide a case, whether you are a client trying to decide what to do, whether you are opposing counsel trying to decide whether to concede to a request. You are trying to solve another person's problem."
McRae recommends that you "insert yourself in the reader's head" and realize "it's not about you, the writer."
"It's all about solving that other person's problem in the most effective, efficient way possible. That outward focus is hard," she adds.
5. Find a writing buddy
McRae also recommends that lawyers get a "writing buddy" to read over their work and provide feedback.
"Find someone you can trade off with — ideally someone in the firm, so you are not worried about solicitor-client privilege," she says. "Ask them: Am I communicating my message clearly? Can you give me a reader reaction?"
Another lawyer may recognize a problem with your writing that you have not identified, she says.
6. Use a checklist
"Everybody needs a checklist," says McRae. "For example, if you struggle with passive voice, do one check through the document for passive voice."
The checklist will change over time, she says.
"Once you've got something on your checklist that is automatic, then you don't need it on your checklist anymore. Put something else on your checklist," says McRae.
McRae emphasizes that developing legal writing skills should be a career-long goal.
"You need to be constantly improving," she says. "When we get complacent, we get stale."
