17 October 2013

No Mysteries, Please: Tell Readers Everything

In a post considering JBS Haldane, I observed that readers rarely guess what happens next. This may lend to the mystery genre's popularity. Mystery is difficult to get right--how much to tell, keep secret, and misinform about is a careful balance that may deflate expectations or cause too much frustration. Legal writing should be approached differently, and for that reason is equally difficult to get right. This short post discusses styles and practices that may make legal writing noteworthy.


1. What Details, and When to Give Them

The legal reader should not have to guess: in legal writing, no mystery should be involved. The reader should be told everything as soon as details become relevant.

For example if you mention legislative intent to support an interpretation in an argument, do not presume the audience will agree that Parliament meant what you claim; or know the political history preceding an Act. So you must exposit the preamble, a definition-section, another qualifying section, Hansard, or relevant statements in other cases. These five sources are not the only ones available; but if any of them create your argument's background they will need to be addressed--even if only as footnote references.

To know how much to tell is difficult because writers neither want to patronise readers, nor take readers' knowledge for granted. Balanced writing must:
  • Ensure just enough background information is given to put the current writing into context;
  • Provide the reader with relevant knowledge; and
  • Not give so many details that an already-intelligent reader becomes bored.

One must also understand that a legal audience will be aware of certain details. For example when applying contract law to answer a specific contract problem, it is probably unnecessary to explain that judges decide case law.
  • It is enough to quote or explain what the judge(s) said;
  • Reference which judge(s) said it; and then
  • Move on.
There is no reason to explain that you reference judges' words because that is where the law is found. (Although, sometimes it is necessary to explain why you have distinguished between a hierarchy of sources--judicial or otherwise.)

2. Be Honest

Misinformation ruins legal writing, however much it grips a thriller's audience. It spoils the reader's experience, too. Reading takes effort. Misinformation may make readers regret the time spent with your words: assessors will mark low, and consumers will not return. So be as accurate as possible.

If you do not know something for certain, learn it. Or ignore it and focus on something else. Some unknown details need further research because their absence makes answers wrong. For example if the problem is about how many bricks it takes to build a wall, you cannot ignore the cases about bricks and walls in favour of cases about raspberry icing and balloons just because you understand weddings but not bricklaying.

But equally, your words about bricks and walls must be valid. In a thriller, the brick wall may be a secret door with a hidden switch, and the story may be scarier if the audience does not know. In law, however, the reader must be told at the start. Your argument may rely on the the fact that a secret door is not an ordinary occurrence. If the contraption is not explained, there may be little reason for the reader to feel persuaded by your conclusions.

3. Structure to Profit

Structure matters. Provide a written map in your introduction. Reinforce this map with relevant headings. After each section say what is in the next. As each section begins, say what the preceding section concerned.

This will give readers a continually updated picture and allow them to structure your argument--which is a manifestation of your thoughts--in their mind. The rest of your essay will fit into this.

4. Light More Lamps

In fiction, authors foreshadow events. The clich├ęd example asks the knife on the mantlepiece in scene one to be used in the murder in scene three.1

The same technique is useful for academic and formal writing. But you must be rubbish at it. Do not be subtle when you first mention the murder weapon. Shout it loud and make the reader expect the knife's return. Even go so far as to say 'The knife will reappear in scene three so don't go guessing it might be the gun from scene two (and while we are talking about the gun, look out for it in scene four's robbery)'.

In the legal narrative, you run to the morgue and photocopy the tag on the victim's toe. You attach this photocopy with an elastic band to the mantlepiece-knife. Then in scene one's description--which lawyers usually call exposition--the reader is allowed to imagine the knife, who used it, and what for--all at the same time. From then on, everything the reader sees will fill out that initial description and better lead to a conclusion.

5. A Quick Example

A good, short example is in Peter Smith J's recent judgment, Walton Homes v Staffordshire CC:2
It will be seen that I am not being asked to construe the Agreement. Nor is this an appeal in any form against that Determination.
Peter Smith J writes this in his fourth paragraph; that is, early on. Therefore it is not a shock when throughout his discussion and in his conclusion he makes no attempt to construe that document. This is good:
  1. It excludes a possible claim that his judgment exceeds his jurisdiction (which would occur if he determined an issue that was not under appeal);
  2. It lets the reader focus on the case's actual subject, rather than wasting time searching for a non-existent construal.
  3. It lets the reader know that the writer--Peter Smith J--actively considers what to write about and what to exclude: an aura of competence surrounds his judgment. This engenders a positive attitude that helps defend against hostility and rejection.

6. Conclusion

Some techniques that make fiction pleasurable are likely to make non-fiction deplorable. Knowing which techniques to include in legal writing takes practice. One must practice reading, as well: by reading other legal texts, one builds a mental archive of what is acceptable, what works, and what fails. The fuller this archive, the easier it is to write good legal prose.


Endnotes
1 See eg Peter Brooks and Paul Gewirtz (eds), Law's Stories: Narrative and Rhetoric in the Law (YUP 1996) 100, referring to Anton Chekhov (Tchekhov), Literary and Theatrical Reminiscences (SS Koteliansky, ed and trans, 1974) 23.
2 Walton Homes Ltd v Staffordshire County Council [2013] EWHC 2554 (Ch).


Created: 17 October 2013. Version 1.2: 22 October 2013.





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