5 Dos of Strategic Legal Writing
What’s wrong with it?
A lawyer, they say, must be more than a walking photocopier or note-taker. We all know it is important for a lawyer to be strategic and a tactician in the courtroom. What we sometimes forget is that a lawyer needs to be equally so when writing, especially while addressing, or responding to, initial legal correspondence. While each situation is unique and may demand tactics peculiar to itself, here are some simple dos to keep in mind:
1. DO make sure evidence is thoroughly reviewed before you begin writing. Else practice “the law of silence.”
Send an interim reply. Seek time until all facts and evidence have been reviewed thoroughly. Charles Dickens (remember, he was not even a lawyer!) gave us sound advice when he said:
If you are not sure of what your legal position should be, maybe you should not take any! A brilliant Indian attorney once famously answered a 50 page demand letter with 3 words : “Dear Mr. X, Nothing is payable!” Remember that once you admit a fact, no further proof is needed. When unsure, say little. And say only what you must.
2. DO keep your options open
Do not foreclose a possible defense only because it appears untenable to you at that moment. Many a case is won through that one seemingly weak argument. Do not assume that you know what will fly.
‘Judges are but men, swayed like other men by vehement prejudices.’
David Dudley Field II
3. DO keep it brief, avoid overstating your case
By no means an easy task for a lawyer.
“To condense the diffused light of a page of thought into the luminous flash of a single sentence is worthy to rank as a prize composition just by itself”
Mark Twain.
Do not lose heart. Keep trying, on the eight try, you just might succeed.
Brevity however, does not mean being peremptory. A strategic legal document is meant to speak for itself. You can’t afford to give an impression to the judge that you failed to state you position with clarity thereby forcing your adversary into litigation. You would need to strike a balance in your strategy depending on several factors. (see subsequent paragraphs).
4. DO keep the adversary in mind while choosing your strategy
5. DO begin with the end in mind
Try and think like a judge. Remember that one will ultimately read your piece of writing. In a judge’s day many matters are competing for his or her attention, an initial first impression is critical.
Every letter you write to the opponent is an opportunity to build your case with the end clearly in mind.