Legal Writing Practices in India forms an Important topic under ‘Legal Language’ paper of LLB SEM-I under Mumbai University and many other universities of the country. Present post is an exact reproduction of the research assignment undertaken by the founder of preventive officer dot com. Read on and take some impressions for your own assignments but forget not to give due credit by linking this post back.
1. Abstract
Legal Writing Practices in India of modern order is at par with all other jurisdictions around the globe. This however, never happened overnight and its roots go back to as far back as Roman empire. Legal writing in India is a culmination of all the changes in the administration and justice dispensation mechanism of India in both pre and post-independence era. The justice delivery system of every era contributed to modern legal writing by some extent. A formal Justice delivery system is believed to exist in India much before the advent of British but as per most acknowledged legal history of India, the onset of an organized legal profession in India is marked by the establishment of first British Court in Bombay in 1672 and the subsequent Mayor Courts in 1726 in Madras and Calcutta. These Courts were dominated by the British barristers which in later years with consolidation of statutes were thrown open to all class of legal practitioners regardless of their origin. The present study aims looking into the evolution of legal writing in India- the origin and the present state of legal writing practices in India, the importance of good and grammatically correct writing in law practice; its advantages and disadvantages including an enquiry into the need of changes in the present legal writing practices.
2. Introduction to Legal Writing
Legal writing is a specific style of presentation of subject matter in the Judicial system with specific terminology and a pre-defined goal. With advancement of civilization the needs of humanity have attained huge diversity and depending upon the nature of needs and concerns of man, the terminology and style of presentation has to differ. Meaning, terminology for a written contract which is a piece of legal writing will be using a particular set of terminology and a unique style of its presentation.
Evolution of legal writing has been concurrent with the evolution of justice dispensation systems across the globe. As the offences, obligations, remedies and justice have broadly the same meaning for all human beings, regardless of geographical differences there is an inherent need of using a similar set of vocabulary with similar intent and a similar set of laws.
Consistency in the laws of all civilizations find their common ground in the logic, equity and good faith. With that said, in an era of globalization and new internet order, the terminologies with slight variations are more or less the same across world. Today’s legal writing is compilation of best practices in terminology and presentation from across the law dispensation systems of the world. So, legal writing practice is need based writing and presentation with its audience that essentially includes client, judges, lawyers, other legal professionals, govt. executive and the media.
2.1. Legal Language
No writing of whatsoever field is possible without a language, language is the medium of presentation of subject matter and the legal terminology comes from a language. English is most common legal language of the majority of countries today and it has assimilated many Latin words. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Republic, it became the dominant language in Italy and western Roman Empire but eventually became a dead language replaced by English. Latin has contributed many words to the English language and a large number of legal principles known as legal maxims originally existed in Latin itself. Accordingly, modern Law System of the major countries is hugely impacted by the laws of England and Continental European Law System.
In India, the regional languages too form part of our legal language but then, they too have specific terminology precisely conveying the same meaning as its English counterpart. In any case the vocabulary and word selection, manner of presentation all remain very specific and different from other writings.
2.1.1. Why English Is Most Acceptable Legal Language?
It will not be out of scope for the instant project to know how the English language became all pervasive in legal writing and nothing more than the history of Legal English could elucidate it.
Legal English is populated by a mixture of languages which made the English language in general., the major contributions are of however French and Latin.
Post Norman invasion of England in 1066, French became the official language of England, although the ordinary people still spoke English. For a period of nearly 300 years, French was the language of legal proceedings, with the result that many French words in legal English find their roots in this period and the words like: property, estate, chattel, lease, executor and tenant made way to English. During this period, Latin was the language of formal records and statutes but it never became the language of legal pleading or debate as only the learned were fluent in Latin.
Accordingly, for the centuries together after the Norman invasion, three languages were used in England. English remained the spoken language of the majority of the population, but almost all legal writing was done either in French or Latin. English was not used in legal matters. However, ‘the Statute of Pleading’ enacted in 1356 written in French opened avenues for English and provided that all legal proceedings should be in English, but recorded in Latin.
English and Latin continued in legal affairs side by side. As the printed word (Latin) started getting widely used it also permeated to spoken. So, when the English became the mainstream in Court affairs, some draftsman started infusing words from Latin, in order to make their text more sophisticated. Words taken from Latin in this manner include: adjacent, frustrate, inferior, legal, quiet, subscribe and the likes.
Coming of English to mainstream legal wasn’t accidental. It was adopted for different kinds of legal documents at different times. Wills began to be written in English in about 1400. Statutes were written in Latin until about 1300, in French until 1485, in English and French for a few years, and in English alone from 1489.
An enquiry of this history reveals as to why modern legal English contains an unusually high percentage of words and phrases derived from French and Latin as compared to ordinary English. Let us take this simple force majeure clause of a modern contract “Neither party shall be liable to the other for failure to perform or delay in the performance of its obligations caused by any circumstances beyond its reasonable control.” It contains 28 words, of which 17 are Old English, 7 Old French and 4 Latin. Of the Old English words, 9 are articles or prepositions (e.g. the, to, for, in, by). All the important legal terms (e.g. party, liable, obligations, reasonable, perform) are either Old French or Latin.
Under the presidency Rule and in subsequent years, status of English was the language of courts thus, English went on becoming the core language of law in India. Also, owing to evolutionary course, majority of the legal wisdoms in Greek and Latin are retained in English only thus Latin too made its way. Thus, English with sporadic use of Latin words form major part of our legal language. Obvious reasons of which is the course of evolution of legal profession in India.
Not only this, all major legislations enacted by the British for administering British India too are inspired by wisdom and customary acquired by British during past many years. Be it Government of India Act, 1858, Indian Penal Code, 1860, Indian Councils Act, 1909, Government of India Act, 1919, Government of India Act, 1935 or Indian Independence Act, 1947 all have been framed in English language. This doesn’t stop here the supreme law of the country ‘The Constitution of India’ too has been written in English. English is the language of international law also. Latin as the language of oldest wisdom, made its way to our legal language through hundreds of legal maxims in Latin. The concept of a lawyer as an officer of the Court also arises from the Roman idea of a lawyer being an ‘advocatus’,
By the similar reasoning, English become Core Legal Language for many countries as the British had huge presence across the globe.
2.2. Importance and Objective of Legal Writing
Upon legal writing entire proceedings of a judicial system depends. It is the writing that records issues, facts, evidences, considerations, claims, obligations and remedy. It is the piece of written art by a legal professional that serves client and court both. Objectives of legal writing is communicating the information to both ends with utmost clarity valid in law.
2.2.1. Importance of Legal writing
In general, the law is complex and technical in nature. To an ordinary person, the terminology and intricacy of the law could be highly unintelligible. The bare acts until explained and narrated in the light of remedies to suffering/need of clients, would assume no meaning. In that sense, legal writing is an art of presenting the matter effectively so that everyone concerned gets a clear sense of, what wrong has been made, what proof is there, what obligations are set forth by law and what is the remedy sought. As this art aims accomplishing a human goal and that requires weaving together multitude of human elements, a systematic, scientific approach kicks in. It is the art and science of legal writing upon which dispensation of justice depends largely. There is no one in this world who never encountered situations requiring a piece of drafted legal document. That’s why legal writing has gained so much of importance with advancement of civilization.
The modern day’s legal professional cannot agree more than the words of Haggar, who put the importance of legal writing as “Drafting is one of the most intellectually demanding of all lawyering skills. It requires a knowledge of the law, the ability to deal with abstract concepts, investigative instincts, an extraordinary degree of prescience, and organizational skills.” Also, according to former dean Roscoe Pound of Harvard School of Law, “one of the important qualities of the lawyers is writing clearly and intelligently.”
It thus, becomes imperative to all kinds of legal professionals be it lawyers, solicitors or judges to draft all legal documents with utmost precision, and elements of comprehension, objectivity, legal reasoning and adequate engagement for all concerned.
2.2.2. Objectives of Legal Writing
At the very core, legal writing is about effective communication to its audience that might include practicing advocates, client, judges the media and so on. The goal of legal writing is to take something complex and explain it in a way that is easy to understand, without sacrificing substance. The legal writing aims to communicate information in a manner that is precise, logical, legal and convincing with the purpose of proving something. Accordingly, two broad objectives of legal writings can be highlighted:
i)Conveying the precise and accurate information by following finer nuances of the law. It the write up is devoid of these ingredients it fails in the eyes of law despite having all other attributes.
ii)Every statement, sentence and point made in a legal writing should be backed by assertions and citations to authority. The points made thus should be well researched, analysed and revised from the view point of law, grammar and substance.
Broadly there are two types of legal writing: (a) Legal Writing having a balanced analysis of a legal problem or issue: examples are inter-office memoranda and letters to clients. (b) Persuasive Legal Writing: examples could include, appellate briefs and negotiation letters written on a clients’ behalf.
Experts of legal writing suggest some broad key considerations to accomplish the objectives of the legal writing: a) Identifying Audience & Purpose of writing b) Depicting a Client’s Story c) Following a Rhythm d) Concentrating on core points e) Avoiding Rigidity.
2.3. Legal Writing Practices
Legal writing or legal drafting is a specific art of writing that uses a unique vocabulary and manner of expression for all legal purposes, inside courtroom or outside. A typical terminology everywhere ensures uniformity of communication and accords special identity as ‘legal’.
2.3.1. Legal Drafting is Distinct from Other Genres of Writing
There is a clear distinction between the language used by poets, writers, journalists, doctors, politicians, dignitaries and the one used by Lawyers, Judges and legal and para-legal professionals. Legal language has its own vocabulary commonly recognized all over the modern world. It is bit technical, compact, specific and has defined of terminology. Some fields which use legal language include: Lawyers to communicate with clients and opponent lawyers relating to litigation, Academic curriculum in Law Universities and Law Colleges, Legal luminaries drafting statutes, Rules and regulations, Legal journalism as in law journals and periodicals, Drafting Bye-laws, regulations, contracts etc., Juridical legal writing as in court judgments, Law Commentaries and Digests etc.
These are the broader ideas of where legal language holds it place. In a narrower sense Legal writing practice could be referred to the style of writing which practicing advocates and paralegal professional use in drafting different kinds of legal documents to support and assist the justice delivery system. As the law aims at the dispensation of justice and upholding the values of an ethical society, the broader aim branches out into a number of roles depending upon the nature of offences, breach, considerations and obligations etc. From this point of view, putting the language out in words for specific goals, the manner of writing would certainly be different to meet different ends. What it means is that as per demand of clients’ need the practicing advocates could be drafting a number of legal documents.
2.3.2. Legal Writing Practices for Specific Needs
Legal writing has evolved through centuries of legal history and depending upon the audience and stakeholder of the writing there are specific writing styles of writing a legal document. For instance: Contracts, Memorandum of Understanding, Application for Child Custody, Gift Deeds, Power of Attorney, Partnership Agreements, Arbitration Agreements, Legal Settlements, Legal Bonds, Wills, Legal Notices, Application for anticipatory bail under Section 438 CrPC, Regular Bail Application before Court of Metropolitan Magistrate u/s 437 CrPC, Application Under Section 320 CrPC for Compounding of Case
Agreements, Application seeking adjournment under Sec. 256 of Cr. P.C, Deed of Conveyance by Mortgagee, Development Agreement by the Landlords in Favour of a Builder and so on, all needs specific format of writing and meticulous selection of words keeping in view the of the applicable laws.
Going by the particular ingredients of each of the above legal documents with regard to their writing practices would be distraction from the aim of the instant project however it would be worth highlighting what best practices a legal writing demands in general: Few of them could be highlighted as per the research undertaken by the domain experts.
(i).. Adequate Preparation by study and research: Successful drafting requires plenty of ground work. This might take considerable amount of time but it is worth the efforts as the piece of the document is going to remain a reference to be looked by opponent and the judge. Drafts made in haste can cost the client his case and the reputation of the advocate too.
(ii). Figuring out the client’s goals, concerns, and instructions: Each client’s need and concerns are different and without identifying the goals of client, drafting any legal document could be just a piece of paper. Justice means different to different individual. Keeping into shoes of client is paramount to serve the client. Conversing at length may be multiple times with client, sight visits, studying the documents available could be measures to ascertain the clients need.
(iii). Ascertaining all issues legal or factual issues: Legal implications in the scenario presented to you by the client has to be analysed well. Breaches, obligations, considerations, defences available all should be duly analysed. Relying merely on precedents may not serve the purpose as sometimes statutory provisions are changed.
(iv). Brainstorming the alternate ways- Sometimes, to achieve a desired aim there are easy workarounds. One should try investigating the issue in fresh perspective without being grossly stuck to a traditional way of moving ahead. This step might include thinking about cost saving and efficient time management too.
(v). Case Laws: Properly using case laws could make the draft very substantive but it should not be just copied without applying the mind in the local context. Sometimes, selection of wrong precedents might kill your chances.
(vi). Identifying the responsibility for drafting: While drafting an agreement between two or more parties it is absolutely necessary to establish which party will be responsible for producing the first draft. A beforehand workout on this saves lot of complexities. Under some common transactions there are conventions:
(a) In conveyancing, the seller’s solicitor usually prepares the draft contract, whilst the buyer’s solicitor prepares the draft conveyance or transfer.
(b) In share purchase transactions, the purchaser’s solicitor will prepare the agreement and deed of indemnity and, by incorporating various warranties, require disclosure by the vending shareholders.
(c) In a leasehold scenario, the landlord’s solicitor will prepare the lease and any licences.
In any other matters the parties should decide first where the responsibility for the production of the first draft lies.
(vii). Zeroing on to drafting: Once the ground work preparation is undertaken, draft can be started. The golden rule is that before drafting substantively, a skeleton of the document under some headings and subheadings should be made to ensure that one does not omit any material facts or legal points. The strategy of making skeleton helps a lot where there are complex factual or legal questions. The barebone skeleton enables one to see the coherent and logical whole at the outset.
(viii). Filling in the headings and subheadings: Substantive writing should be next step and all the headings/subheadings should be provided clarity with content. Golden rule is that without distracting one should go on preparing first draft.
(ix). Appearance, style and presentation of the draft- Ideally, printing the first draft on a double-spaced on A4 paper by leaving a generous margin each side, and at the top and bottom helps us making amendments while revising the content. By way of revising and proof- reading draft should be ensured to be coherent, consistent and logical and in conformity to the pre-conceived aim.
(x). Ticking up Checklist of Legal Documents by ensuring presence of certain essential elements like: (a) date; (b) specification of the legal document (c) Signatures of the concerned persons names and addresses etc., (d) necessary definitions; (e) Annexures, Schedules, (f)Relied upon documents, exhibits and any other particular necessary.
(xi). Taking care of Grammar, word selection and syntax: A good legal document should essentially be free of grammatical flaws and punctuations. Sometimes small errors on these counts do not only cause bloopers in courtroom t, it also risks the ability of the legal professional.
(xii). Finalizing the draft and Engrossment: Finality to the legal should be decided after revisions and careful proof reading of the prepared document. The legal document comes into effect once it has been completely executed and dated. Legal professional should keep a photocopy on their file for record or make up their engrossment file copy by filling in the date and details of the signatures. A copy should also be sent to the client.
3. Origin and Present State of Legal Writing Practices in India
To understand the origin and present state of legal writing practices in India we need looking its evolution from some point of time in legal history and a ground up approach.
3.1. Origin of legal Writing Practice
Legal Writing without existence of a realistic legal profession in existence is never possible. Hence, origin of legal writing practices could be construed to be concurrent with the genesis of the legal profession in India.
The history of the legal profession in India owes its roots to the establishment of the first British Court in Bombay in 1672 and subsequently Mayor Courts in 1726 in Madras and Calcutta. In following years presidency supreme courts, high Courts under different Regulating Acts, The Legal Practitioners Acts, 1846, 1879 & 1984, The Indian Bar Councils Act, 1926 and all the way to The Advocates Act, 1961 paved the way for a reputable dignified legal profession of present day. However, to explore the evolution of Legal Writing practice recorded history of 1700 years back needs to be checked back.
Although the earliest lawyers were the orators of Athens but because of imposed limitations the profession could not take an organised form. The second earliest lawyers known were the Roman advocates. Contrary to Athens, Rome developed a class of specialists who were learned in the law, known as jurisconsults (iuris consulti). Roman judges and governors would routinely consult with an advisory panel of jurisconsults before rendering a decision. Another class by name ‘advocates’ arguing before judges who earlier managed with rhetoric, started studying law and enrolling to bar was made mandatory. Inferior to advocates, there were the notaries (tabelliones) responsible for drafting wills, conveyances, and contracts.
The process of professional evolution that started in fourth century in Rome continued until fall of roman empire and onset of “dark ages” characterized by economic, intellectual and cultural decline in 5th century. The legal profession of Europe too collapsed. However, from 1150 onward there was some progress in the legal profession and from 1190 to 1230 there was a crucial shift wherein, some began to practice canon law as a lifelong profession. Swearing an oath of admission before practicing came in practice by 1231 and the proliferating professionalism was joined by the civil courts in England also. Down the line a statute was enacted in 1275 prescribing punishment for lawyers guilty of deceit, and in 1280 the mayor’s court of the city of London promulgated regulations for admission procedures, including the administering of an oath.
The law practitioners in England had been regulated since 13th Century majorly by Statute of Westminster I,1275, The London Ordinance of 1280 and the Ordinance of 1292, de Attornatis et Apprenticiis. The incident of attorneys being expelled from court of Inns and later developments led to formation of Law Society in England in the year of 1739 to ensure fairness, competence, loyalty, confidentiality, reasonable fees and service to the poor. French tradition of lawyers requiring them oath for pledge of care, diligence and an agreement to support only just causes too had a professional influence on other parts of Europe. These value systems in English Law Systems transmitted to India under British.
Till the supreme courts under presidency regime legal profession was extremely restricted for Indian people However, establishments of High courts at Calcutta, Bombay and Madras in 1862 to act as a bridge for Supreme Court and Sudder Court traditions, opened avenues for legal professionals in India as the Vakils of India were permitted to practice in High Courts. The era marked for ending monopoly of English lawyers and extending opportunities and privileges to Indian legal practitioners i.e vakils. The learning of legal aptitude started in a guru shishya tradition in India under the pioneer Indians vakils like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar who matered best practices of English bars and then passing on to the long line of their disciples.
Down the line, High Courts were opened in other cities and Legal Practitioners Act of 1879 brought all grades of existing legal practitioners viz. a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents under one system under the jurisdiction of the High Courts. The Indian Bar Councils Act, 1926 worked for the uniformity for various grades of legal practice and to provide self-government to the Bars attached to various Courts. The Legal Practitioners Act and the Letters Patent of the High Courts governed the legal practitioners in the country until the Advocates Act, 1961 was enacted. The present day Legal writing practice is influenced by the many of the best practices of history all through the British Era and these are manifested in terms of terminology, Customary and legal language.
3.2. Present State of Legal Writing Practice
Present state of legal writing practice has multiple dimensions and each dimension correspond to a specific need of man of modern world order.
3.2.1 Types of Legal Drafting at Present
Legal Writing Practice has evolved through legal history of civilizations and according to the need of modern day’s circumstances multitude of legal drafting are undertaken by the legal professionals. One school of legal drafting categorizes the legal documents as three basic types:
(i)Drafting for Legal Instruments – Legal Instrument is a formal legal document that grants (or proves the grant) of a right. Examples of which include: Contracts, Deeds, Wills, Business Documents and Trust etc. Any written agreement can fall under the heading of a contract. Deeds usually transfer any interest in real estate, including easements, mortgages, etc. Business Documents might include: Article of incorporation, bylaws, partnership agreements etc. Will/ Codicil are special legal documents that allow gifts to be given after one’s death. Trust establishes an agreement whereby the trustee agrees to hold property for the beneficiary.
(ii) Drafting for Pleading- Pleading document is a formal statement by a party in the context of litigation, for example: Complaints, Rebuttals, Retractions etc.
(iii) Any other document involving legal issue: for example, notices, letters, Inquiry reports, etc.
In Indian Context, all legal documents can be majorly categorized in three types: Agreements, Pleading Documents, Legal Forms and Judgements. Writing of each of the type of document takes legal specialization I general.
(i)Agreements- Drafting of agreements might include writing for sale-purchase agreements, Arbitrations, foreign collaborations, Bonds, Family Settlements, Gift Deeds, Hire Purchase agreements, Deeds of Indemnity, Lease and License, Mortgage and Pledge, Partition, Partnership, Power of Attorney, Wills etc.
(ii)Pleading Documents- These might include: Complaints, Retractions, Rebuttals, Rejoinders, any later stage submissions etc.
(iii) Legal Forms- Legal forms are created by courts, self-help centres, legal aid organizations, and the like to help people in their court cases. Forms typically will not explain the governing law to the audience neither they provide or cover all of the information necessary for the courts to reach a decision. Ideally, these legal forms are used in conjunction with the other written documents drafted by legal professionals explaining the law governing a case. However, filling in these forms takes knowledge of law and with little bit of knowledge man of ordinary prudence can fill. Legal forms can be relating to: Affidavits, Arbitration, Bond, Company Law, Indemnity, Lease and License, Mortgage and Pledge, Notices, Power of Attorney, Sale, Tax Forms etc.
(iv)Drafting for Judgements- This kind of drafting is undertaken by the legal professional or court officers assisting the judge. The judgements can cover a whole lot of range including Accident, murder, rape, Compensation, Constitution, Consumer Protection, Contract, Copy Right, violations, Smuggling, Drug trafficking, Cyber Crime, Debt Recovery, Divorce, Human Rights, Intellectual Property, International Law and so on. As the spectrum of writing on judgement documents is very vast and involves final delivery of justice, great amount of expertise is warranted on the part of legal professionals.
3.2.2. Broad & Common Characteristics of Present Legal Drafting
The way the Legal Drafting has evolved it has acquired some characteristics, uncommon to see anywhere else. Let us have a look over this piece of paragraph from a modern day will.
“I give, devise and bequeath all of rest, residue and remainder of my property which I may own at the time of my death, real, personal and mixed, of whatsoever kind and nature and wheresoever situate, including all property which I may acquire or to which I may become entitled after the execution of this will, in equal shares, absolutely and forever, to Surendra Singh, Mahendra Singh, and Amarendra Singh, per capita, to any of them living ninety (90) days after my death.”
It uses archaic words, Latin and French origin words, multiple synonyms and verbose style of expression. Divergent opinions are abounding about such writings but popular one that there remains consistency with traditional writing and least scope for misinterpretations.
(i)Legal drafting is Verbose- Yes, the Lawyers are known for their convoluted writing wherein words with multiple of its synonyms occur together. Justification for this kind of expression is that it leaves least scope for misinterpretations.
(ii) Mixture of Languages- Assimilation of foreign words esp. Latin and French is the evolutionary in nature and many of the great wisdoms in these foreign languages are considered as the complements of English.
(iii)Use of Alliteration- Yes, the Alliteration which is a poetic technique or literary style is frequently used in the legal writing. Like in the sample writing example: rest, residue and remainder are not only verbose expression it is an Alliteration too wherein all three words have same starting sound. A seemingly valid theory behind this is that this style was introduced to help illiterate persons in understanding and remembering their legal obligations.
(iv)Distinct Terminology: Legal language maintains its marked distinction from our naturally spoken languages, be it English or any other language. Legal language is characterized by its distinct terminology.
(v)Lengthy and complex sentences: Our laws or legal documents under current legal writing practice reflect that that legal language involves the usage of lengthier sentences than any other style of writing. There is a marked tendency to allow more and more embeddings and thus making the sentence complex. To add, the practice of stating an entire principle or law in a single sentence, sentences get yet lengthier.
(vi)Formal and ritualistic language: The legal language under current practice of writing has borrowed and assimilated many archaic words not from English alone but from French and Latin, uncommon to common people. The overall tone of the language used in legal writing is pompous and does not have application in our day-to-day life. It remains as a language of courts and courts officer for specific end. This makes the legal language of writing as purely Formal and ritualistic language.
(vii)Wordiness and redundancy: The legal writing of ours is replete with wordiness and redundancy. Using wordy phraseology and multiple embedding makes the sentences highly antagonizing the readers.
(viii)The legal writing is also replete with unusual sentence structure, use of negation, conservatism, use of technical terms and jargons, use of doublets and triplets like null and void, use of unfamiliar preforms and pronominal adverbs like hereof, and impersonal constructions.
(ix) New Shift towards plain English- From 1960 onwards, the legal fraternity across globe is pushing towards use of plain English in legal writing. The theory behind it is the fact that documents drafted by lawyers are not only for legal professionals and that the law dispensation is becoming more participative. The goal of simplified legal English is yet to be accomplished but every research in the field is pointing to its need.
(x) Another shift towards standardization of contractual language- This is one most recent push created by the legal fraternity. The idea behind is the all-pervasive contracts under globalization. Standard language and terminology for contractual clauses having same meaning every part of the globe will promote business transactions benefitting all.
4. The Importance of Good and Grammatically Correct Writing in Law Practice
The law in general is complex and technical in nature. To an ordinary person, the terminology and intricacy of the law is highly unintelligible. The bare acts and remedies thereunder until explained in clear terms it assumes no meaning to public at large. Incorrectly written and inappropriately placed statement of facts and issues make the legal document evasive and vague to judges as well.
4.1. Importance of Correct Legal Writing
Grammar is the yardstick that measures correctness of a legal document. Failing at this standard is not only embarrassing it can also change the message underlying a legal document as well. Contrary to usual conception, the grammar is not only about correct usage of tenses. It encompasses all big and small aspects that we could think about a language. Be it syntax, punctuation, vocabulary, voice, narration everything comes under the ambit of grammar. A balanced analysis of the applicability of grammar dawns on us that a legal document cannot remain flawless until the grammar of its content has been taken care of duly. One might be expert in legal field but if he fails to equip him with a writing skill proven on grammar, he is bound to fall short of delivering the desired results.
It may be pertinent to highlight that legal writing is not only about the documents by lawyers. It is also about writing judgements and drafting the statutes itself which runs the country. It is also about writing scholarly books including those part of our legal academics and journals. Drafting a bill, writing a book on law, writing for a legal journal all requires mastering the grammar of legal language.
While a badly written judgement can cause miscarriage of justice, grammatically flawed bill cannot take the shape of a statute and similarly a lawyer lacking in grammar will always suffer mockery and failures in his profession. A paralegal by the same reasoning cannot get a job if he is not adept in grammatically correct legal writing.
Importance of good Legal writing is very well unscored by the maxim, “verba volant, scripta manent” which means spoken words fly away, written words remain! Haggar, writes that legal writing is one of the most intellectually demanding of all lawyering skills. Kathleen E, Suffolk University Law School Faculty, in her research paper titled “Improving Legal Writing: A Life-Long Learning Process and Continuing Professional Challenge (2005)” quotes “Indeed, writing skills are fundamental to success in the legal profession and serve as the foundation for effective communication”. The importance of good and grammatically correct writing in legal profession thus, cannot be emphasized more.
4.1.1. Adverse Remarks of Courts on flawed Legal Writing
At the instance of inappropriately and vaguely written legal documents, the remarks of the judges have been very interesting lamplighter for those who by any reason do not understand the importance of a good piece of legal writing. Frustrations of the judges at poorly drafted legal document by the counsel:
(i)The Ninth Circuit in United States of America in the matter of N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997) declared the famous “Slubby mass Rule”
“In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief. .Enough is enough”
(ii) The same rule was further applied in the matter of Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) and the courts observations regarding the poorly written submissions were again very adverse:
“The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to the record.”
And further marking that
“Bare assertions and lists of facts unaccompanied by analysis and completely devoid of case law fall far short of the requirement that counsel present appellant’s contentions and the reasons for them.”
In yet another case of Henderson v. State 445 So. 2d 1364 (1984) Jacob HENDERSON v. STATE of Mississippi. No. 54662. Supreme Court of Mississippi. February 8, 1984 made following remark:
“It is very poor English. It is impossible English”
And further:
“Its archaic. Even Shakespeare could not understand the grammatical construction of this indictment”
4.1.2. Loss of Legal Claim on flawed drafting:
There are a number of occasions, when the inability of lawyers to write properly adversely impacted the clients in terms of their money, time and legal right. Surprisingly, the Courts have dismissed complaints with grammatical errors and denied motions with misplaced punctuation marks too.
Example: (i) In Duncan v. AT&T Communications, the court granted a motion to dismiss a complaint because the plaintiff’s complaint was so poorly drafted that it failed to state a claim on which relief could be granted. The court was categorical in its disgust with the plaintiff’s pleadings, noting that “the court’s responsibilities do not include cryptography, especially when the plaintiff is represented by counsel.” The court also noted the grammatical and stylistic shortcomings, and stated that other allegations were written in a conclusory manner that failed to explain the facts to the court. It was held that the allegations may have been legally significant if they were well pleaded. Result was that the plaintiff lost her claim for employment discrimination because of her attorney’s failure to write properly.
Example (2) In a similar case, Feliciano v. Rhode Island, the plaintiff’s claim under ‘the Americans with Disabilities Act’ was dismissed because the complaint was marked too vague. The court found that the complaint did not describe the claim in sufficient detail, nor did it allege facts to support the claim of denial of constitutional rights. At one point complaint had alleged that there were differences in interpretation of the two applicable federal laws, but missed to articulate those differences and therefore the court did not consider the allegation.
Example (3) In suit filed by Juhi Chawla against Roll out of 5G, The Delhi High Court made strong and critical observation holding the civil suit as “defective and vexatious”. The court inter-alia held that “This is a classic textbook case of, how not to draft a plaint, which should be taught in law colleges and to young lawyers so that such bloopers in drafting of pleadings, damaging to one’s own client, are avoided”, The hon’ble court also imposed penalty of Rs. 20 Lakh for wasting judicial time and termed the suit an “abuse of process of law”
Thus, flawed, poorly, incorrectly and inappropriately written pieces of legal documents can bring a great disrepute to a legal professional. Lawyers have been witnessed being reprimanded both in Indian courts and abroad on account of this.
4.2. How Does A Good Legal Writing Look Like?
A good Legal writing is one that effectively conveys the information without compromising with facts, issues and question of law and serves both ends: the clients and the authority. Certain attributes if taken care of, while drafting a legal document makes the document good in true sense as it succeeds in its preconceived aim.
(i). Multiple Headings and Subheadings- These are the pointers of the issues in the first glance. The audience should get a clear sense of what is out under a paragraph.
(ii). Short paragraphs- Each paragraph should be dealing with a single, unified topic. Unless required on account of relating many things together lengthy and complex sentences should be avoided.
(iii) Single word Substitutions for sounding assertive – Wherever possible, single words should replace the multiple saying same thing. For example: “By his conduct it is proved that he is not an honest man” can be transformed to more assertive like “By his conduct it is proved that he is a dishonest man”
(iv)Avoid use of exceptions.: For example, “Section 12 of xyz Act, says that except those who have earned a graduate degree will be allowed admission in this university” can be expressed as “Section 12 of xyz Act, permits admission only to graduates in this university”
(v) Maintain consistency by adopt repetition of words instead using synonyms- For ranking in google the variations of the words may be useful including for other genre of writings but using synonyms in legal writing might confuse sometimes. For example “As the person hit my Scooty head on with his bike my vehicle got seriously damaged by his vehicle ”, the SEO practice recommends it but in legal writing using scooty and bike here is more advisable.
(vi) Using adequate number of lists and keeping them logical in structure
(vii) Writing in active voice- Unless required active voice should be the preferred mode. Only when the actor is unknown, unimportant, or obvious passive voice should be used.
(viii) Using action verbs as far as practicable- Instead writing “the prayer may be given consideration” writing like “Kindly consider the prayer”.
(ix) Pompous words under check- A dignified legal writing doesn’t require you using pompous words and simple words many times make better sense. It is advisable to replace the high-sounding words with simple ones. Like “afforded an opportunity” can be replaced with ‘allow’ many times.
(x) No needless words- To make an issue crystal clear omitting needless words and word combinations can do a lot. For example: “the fact that he had not succeeded” can be replaced by ‘his failure’ and similarly, “the question as to whether” can be replaced by ‘whether’ many times.
(xi) Redundancy under check- Most of the time one of the words in a pair is redundant as it is saying same thing as the other. It is wise to keep these redundancies under check. For example ‘each and every person was injured’ can be replaced by ‘all persons were injured’
(xii) Use of Concrete words- One should be very careful in selection between abstract and concrete. Abstract words in place of concrete and vice versa can present a vague message. For example, if we mean a helicopter using aircraft will do injustice to the message.
(xiii) Expression creating obligation- Instead writing the “Judge shall consider the submissions”, write something like “The Judge must consider the instant submission”
(xiv) Preferred use of present tense- For a law with continuous effect, the obligations/provisions with regard to a case in hand should be written in present tense instead in past. For example, “the section 11(a) of PMLA doesn’t apply to the negligence by my client” and not something like “the section 11(a) of PMLA did not apply to the negligence by my client”.
(xv)Font, paper, spacing and margin- Unless dictated by a local customary, this should be in the line of most acceptable standards.
5. Advantages and Disadvantages of Legal Writing Practice
Like everything in the world, the Legal Writing practice too has pros and cons. It would be unfair to this study if both the aspects are not discussed. However, before getting down to the analysis of both the sides of legal writing practice, it would be pertinent to have look at the feature of Legal language that is used in legal writing. Only then a balanced view on its advantages and disadvantages could be taken.
5.1. Legal English Outlook
Indian judicial system largely uses Legal English as its medium of communication. Hindi and other regional languages too are used in subordinate courts, but legal terminology for all of them is very specific and precise translation of legal English. To add English being the medium of instruction for all law colleges, the law books in other languages too have very much defined set of vocabulary, overall making legal language extremely distinct.
As a part of research and common observation too, the factors that mark legal language different from other common languages are the usage of unusual sentence structure, conservatism as in using obsolete words or words from archaic French or Latin languages, use of technical terms and jargons, use of doublets and triplets like null and void, use of unfamiliar preforms (they are those expressions whose meaning is deduced from the context) and pronominal adverbs like hereof, and impersonal constructions. Also, the use of negation marks it distinct. For example, fixed phrases like ‘whether or not’, ‘including but not limited to’ used in contractual context make the entire legal English different from general English.
5.2. Advantages of Legal Writing
Legal language cuts across different segments of society. Some may have knowledge of the law and some may not. The communication between men of law
lawgiver is also, per se, communication. It can be found in the shape of statutes or permeability of statutes. The legislators may not have appropriate knowledge but the drafter takes care that the statutes resonate with the legislator’s intention.
(i) Legal Writing is the formal communication between the judge and the jury, judge and advocate, and the counsel and client. The interaction of common man occurs through contracts, testaments, by laws, notices are all written in legal language. It is thus, a language of law not for legal professions but also for the common man.
(ii)The making of statutes involves drafting of Bills in first place which is done in Legal Language. It is standardized form of writing that helps choosing specific words in the context of drafting a bill. The parliamentarians may not be highly educated but through this draft and help of draftsman get a sense if the proposed Act is truly reflective of the goals conceived. So, the legal writing is a basic tool for parliamentarians to interact with exports legal writers.
(iii)Because of uniformity in the basic terminology used by all the Act, it gets only easier in understanding other Acts on account of similar look and feel at first glance. Advantage of this is that once an Act is understood by someone chances are he will have lesser difficulty understanding another statute though made for different domain,
(iv)A piece of legal document essentially a legal write up helps the practicing lawyers, judges, and those in the paralegal profession to comprehend and resolve clients’ matters in a standardized and systematic manner to reach the justice.
(v)Career progression and other things of a legal professional is largely impacted by his knowledge and skill of producing legal writing.
(vi)Legal writings acts a medium to connect with freshers in the law field and it is this language only through which seniors could help them in growth and performance.
(vii)It helps in creating systematic, grammatically correct and meaningful legal documents forming vital records for all proceedings and justice delivery. Legal writing is integral part of legal proceeding based on three essential elements: Accuracy, brevity and clarity.
(viii)The legal writing is the building block that constructs Contractual clauses, it is the glue that binds the parties together and makes the obligations and promises enforceable. In all, the legal writing is the basis of facilitating transactions between any two or more persons in a manner that every stakeholder can work in tandem at peace.
(ix)Legal writing requires high precision & accuracy and places heavy reliance on authority. Under the most legal writing, the draftsman backs up assertions and statements with citations of authority. On that note a good legal writing greatly complements legal-research and hence growth of mental faculties of civilization.
(x)Best part of Legal writing skill is that it can be learnt and acquired it is not privileged to a limited. Career growth of every Legal professional in the past has depended much on this skill. The ones who were able to hone this skill adequately and timely earned both prestige and material wealth.
Who doesn’t know Adv. Late Ramjethmalani who by dint of his legal writing made unique place across legal fraternity, rose to fame and created abundance of riches. Everyone knows the founder of law sikho and iPleaders Mr. Ramanuj Mukherjee. His biography speaks that he rose from a very humble background, having poor knowledge of English and low self- esteem. Any big determinant in his life too for such bug turnaround could be attributed to his drive of honing the skill of Legal Writing. The internet is replete with examples who on account of a good legal writing have made it big in their life.
5.3. Disadvantage/Drawbacks of Legal Writing
(i) Language of Legal writing itself- The language used in Legal writing is literally formal and ritualistic language. Uncommon words and terminology used in legal writing have no application in other walks of life. Primarily it remains a language of court for the court and by the court.
(ii) Limitations with Verbose Expressions- In a Legal writing sentence like “I give, devise and bequeath all of rest, residue and remainder of my property..” the words rest, residue and remainder occur together which sounds pompous, and a literary style of Alliteration. Sometimes we can avoid them but when they make the part of solemn affirmations we can’t. The justification given is that that it dispels ambiguity of any form.
(iii)Limitations as regards Wordiness and redundancy: In any practical life sphere, one can deal with redundancy by eliminating the same. The legal writing is replete with wordiness and redundancy but one cannot always remove this. Example: cease and desist many times come together in legal writing and it is not always possible to rectify it.
(iv)The legal writing is also replete with unusual sentence structure, use of negation, conservatism, use of technical terms and jargons, use of doublets and triplets like null and void, use of unfamiliar preforms and pronominal adverbs like hereof, and impersonal constructions.
(v) Although the Legal writing is a learnable skill, it is not that easy to acquire. Finest of legal writing skills do not come overnight; it demands drive, persistent efforts and a great association for a couple of years.
(vi) Legal writing is incomprehensible to common man at large because of inherent limitations and archaic nature of its vocabulary and complex sentence formation.
(vii)Present day legal writing uses many words other than English. The vocabulary of it has assimilated words from the French and the Latin languages such as Ab Initio, Actus Reus, Hearsay, In Loco Parentis, Mens Rea, Pro Bono, Stare Decisis and the likes. These words make the legal writing reader un-friendly.
(viii) Syntax of the Legal Writing are complicated. There is no certainty to the clauses put for a single sentence and as years go by, the interpretation increases and the numbers of the clauses of these sentences increases at the same time. Importantly however, expansion of these legal sentences is not only because of syntax issue. Expansion of sentences in legal writing is usually seen in statutes and as the humanly concerns changes with time, the provisions under the section get bulkier making the sentences complex.
(ix) A good legal writing requires legal professional to be always on the job of updating their knowledge with the precedent case laws, judgements, rulings, new acts & regulations etc. Although they are not supposed to be active into politic, they have to keep an eye out on the politico-economic changes going in and around the country so that Legal writing remains relevant. For example, liberalised economy has brought in certain modifications. There is plain English movement and standardized contractual language for legal writing and the shifts have to be adopted by the legal professionals.
(x) Legal writers apart from dealing with the technical problems of grammar, vocabulary and continuous updating have to constantly practice for honing the skill and actually producing the piece of legal writing for pleadings, journals which are time consuming. A great piece of legal writing needs effective time management too, juggling between many things however can make their life miserable. In fact, gool legal writers do not get adequate time for their personal space and playing around limited time is of course their understated difficulty.
6. Need to Change the Present Legal Writing Practices in India
Nothing is static in the world and legal practice too is no exception. The practice of legal writing in India owes its genesis to legal history of India and many things in this practice has largely been the same. Analysing the need to Change the Present Legal Writing Practices in India, when everything around us, including our needs and concerns have changes is quite relevant to the scope of this project.
6.1. Voice Against Language Used in Legal Writing
The prominent feature of the legal language that includes among other things, Vocabulary, syntax and semantics, verbose expressions make the legal language, incomprehensible and burdensome to the layman. As they are mainly used in communication between judges and judges, judges and lawyers in a court room atmosphere, they do not appeal the public participation who are at the receiving end. Legal terminology is distinct, largely archaic and uses legal jargons commonly uncommon for practical purposes of life.
The many of ordinary prudence and education finds these legal writings difficult because its vocabulary is borrowed from the French. Latin and Norwegian language. David Mellinkoff, a successful lawyer, faculty of Law at the University of California, Los Angeles made some significant progress in the battle against verbose legal language.
In India too, criticism for legal language is coming up through PILs. A good chunk of legal fraternity from across the globe are also pushing for Plain Legal English and Standardized contractual language
6.1.2. Efforts for Change in Language of Legal Writing
(i)A Delhi based lawyer Mr. Subhash Vijayran filed a PIL in Supreme Court on 15th October, 2020, under SUBHASH VIJAYRAN V/S UNION OF INDIA. The submissions made includes request to scrutinize the viability of Legal language currently used in Judicial system. The plea taken is that the legislature and the executive of India should use more understandable English; that English used by Bar Council to draft laws should use plain English which is used in curricular and notices. Request also includes that the Supreme Court to only allows crisp and accurate pleadings. Contention under the writ petition is that the writing of most lawyers is (1) Wordy (2) Unclear (3) Pompous and (4) Dull. What two words can convey is written in eight words under the existing legal language. Common ideas are expressed by using arcane words and phrases. Hon’ble supreme court has taken note of the plea and has directed the Ministry of Law and Justice and Bar Council of India to submit a rejoinder in response to the plea under the suit.
(ii) Vidhi Centre for Legal Policy in the year 2017, has already produced a manual on plain-language drafting. The voice against verbose style of judgements have been voicing against quite some time. Famous Novelist George Orwell was very critical of verbose judgements of courts.
(iii) Masses too are raising concerns at the style of legal writing. Concerns of the masses becomes more obvious when the verbose communication in Judgements relate to their Fundamental rights and the sentence structure makes it difficult for them to get a quick sense of the judgements. Let us consider the SC judgement in SUBRAMANIAN SWAMY V/S UNION OF INDIA. The Hon’ble court stated “this batch of writ petitions preferred under the Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right to freedom of speech and expression of an individual, exploring manifold and multi-layered, limitless, unbounded and unfettered spectrums and the control, restrictions and constrictions under the assumed power of reasonableness ingrained in the statutory provisions relating to criminal law to receive and uphold one’s reputation.” . It is obvious that what could said in few words of plain English, is told in verbose. In fact, our existing legal writing is replete with instances showing that legal language is loaded with verbose, alliteration and redundancy.
6.2. My views on Need of Changes to Legal Writing
Certainly there is need of change to Legal Writing. I find following argument in support of the need. I would rather term this need as cause as it involves the common man too, in the largest democracy of the world.
(i) One of the most commonly known law principle of Indian Justice delivery mechanism that “Mistake of law is not a valid defense” itself provides sufficient food to the abounding though process that legal language needs some changes to be understood by one and all. It would be really pertinent to mark that because of a specific style of legal writing, masses find it distasteful reading and when reading is not made all participative, all appealing how can one expect to know the law.
(ii) Interventions caused by a participant during the hearing of PIL filed by Mrs. Juhi Chawla is one recent example whereafter the legal fraternity is of the strong opinion that it is not only the legal language but also the archaic definition of the terms in current judicial system which need to be made more relevant and compatible to the era of internet and social media. Because of the old definition accorded to ‘Court’ under section 3 of the Evidence Act and ‘Court of justice’ under IPC, there arose a ‘question of law’ before the judges as to how the disruption caused in a virtual hearing be dealt with. Matter of the fact, is that there is no statue in India explicitly governing the Virtual Court Proceedings. Of course, there is a Guideline issued by SC for virtual court functioning since March 25th 2020 owing to ongoing Covid pandemic, but that is not sufficient to deal with all the situations in virtual mode.
(iii)The legal language of ours is inherited from British India judicial mechanism which largely remains the them after century has gone by. The civilization of today has different form of issues and the old dispensation systems can no longer be fully relevant to address the modern day’s issues. When the Constitution of India itself speaks about justice to all its citizen in all forms social, economic and political, it feels the spirited is defeated because of lessening relevance of old laws, provisions and mechanism as a whole.
(iv)Legislations are of huge importance in a democratic set up of governance. Right from an individual’s behaviour to the degree of efficiency with which a society works is all shaped up by the legislations and justice delivery system. The basic rights of common citizen thus should not be restricted by archaic jargon and tedious legalese and the formal legal training. Instead, it should be replaced by a Clear, concise and well-articulated legislation for better understanding by the citizens.
(v) Stressing the need of unambiguous and clearly statute, Justice James Stephen, the author of the Indian Evidence Act (1872), once remarked beautifully that, “it is not enough to attain a degree of precision which a person reading in good faith can understand; but it is necessary to attain, if possible, a degree of precision which a person reading in bad faith cannot misunderstand”.
(vi) Post independence, the Hon’ble Supreme Court in 1976 remarked that: “We cannot but deplore the clumsy draftsmanship displayed in a statute which affects the common man in his daily bread. It is unfortunate that easy comprehensibility and simplicity for the laity are discarded sometimes through over-sophisticated scholarship in the art of drawing up legislative Bills.”
(vii) The globalization and economic liberalization clubbed with advent of Internet and social media new dimensions to the concerns of common people have added. In view of these major changes need of modification in art of drafting bills and other legal documents would be an understatement. The movement of Plain Legal English and standardized contractual language is already on the go in major democracy and India needs to support the cause.
(viii)The language of the law has been the subject of continuous literary criticism and satire. Inherent technicalities and the outlook of the legal language have been subjects of debates equally by elites and commons. Limitations posed by the existing legal writing have been brought to the notice of Courts which though noted by the judges but appropriate measures are yet to be taken. It is high time the legal language for writing is made straightforward, plain ensuring participation of masses for whom justice is aimed at.
Other Useful Posts for LLB, Mumbai University
Appointments, Powers & Duties of Authorities Under The Industrial Dispute Act, 1947
The General Defenses in Torts With Examples and Relevant Case Laws