I. Tailoring legal writing to your reader: why it matters?
II. Clarity or complexity: balance in academic legal writing
III. Achieving the optimal balance
INTRODUCTION
Legal writing is a necessary skill for every lawyer and law student. However, simply writing well is not enough. Legal writing must be adapted to the intended audience to ensure credibility, effectiveness, and the correct delivery of the main idea. In this blog, we will examine why it is critical to consider the reader’s point of view while creating an academic legal paper, the significance of the balance between complexity and clarity, and the ways to achieve the balance.
I. Tailoring legal writing to your reader: why it matters?
While presenting information, it is more practical to adopt the reader’s perspective to capture their attention and interest.[1] Imagine the following case: A large audience of people with various degrees of legal knowledge is listening to you explain a complicated legal concept. Your audience could include non-experts, law students, and legal professionals. Under these circumstances, the presenters should communicate in a language that all audience members can comprehend to convey their message correctly. If they fail to do so, the audience can become perplexed and lose interest in their presentation.
The same principle applies to legal writing. Use of jargon and lawyerisms that include Latin and archaic English words, such as aforementioned, res gestae, said, arguendo, and thelike may make the material difficult for the target audience to understand.[2] Some readers may understand them with significant effort, while others might notice errors in the usage.[3] Subsequently, misinterpretation and disinterest can occur. Therefore, it is essential to tailor legal writing to the audience and, in the first place, get inside their heads.
Thus, by placing themselves among the audience, [4] lawyers can ensure clarity, which is the ultimate stage of tailoring the writing.[5] Additionally, the efficiency of the article’s argument also depends on whether the reader can easily understand it or not.[6] As a result, clarity becomes essential for the effective conveyance of legal concepts and arguments.
II. Clarity or Complexity: Balance in Academic Legal Writing
Clarity is of vital importance for engaging and effective writing. Nevertheless, an even more paradoxical challenge awaits the authors pursuing excellence in legal writing. Thus, legal writers must balance two competing roles. First and foremost, they must completely represent the complexity of the topic they are discussing, even if it is hard to comprehend. Second, they need to express their ideas in a clear and direct style that appeals to readers seeking clarity.[7] At this point, it is possible to become impeded in the writing process, as most lawyers try to convey the complexity of the topic as it is for the sake of precision.
Before trying to achieve the right balance, assume three groups in your audience: law students, legal professionals, and non-lawyer people. Due to these groups’ different levels of knowledge and experience, they will have divergent expectations from your paper. Some may want more details to comprehend the confusing concepts.[8] However, clarity in academic legal writing is not always simplification for an “ignorant or lazy audience”.[9] Sometimes even the well-informed may demand simplifications, ensuring the complex matter is resolved without unnecessary complications.[10] After understanding the diverse expectations of different groups, it is essential to deliberate on an approach that successfully achieves the desired balance.
III. Achieving the Optimal Balance
Up to this point, it became clear that, on the one hand, academic legal writing must be comprehensible for its intended audience; on the other hand, it must contain the needed legal nuance and complexity to influence and persuade the readers. So then, what can be used to achieve a balance between clarity and complexity?
One of the frequently employed methods is lay review. This approach can be considered a common practice used not only in the legal sphere but also in world literature, where authors seek feedback about the plot and characters of their works from their families and friends for their draft works.[11] However, in the legal field, it is the process of seeking feedback on legal documents from individuals who do not have a legal background or training. This feedback can help identify areas of the document that may be confusing or difficult for non-lawyers to understand.
When it comes to academic legal articles, they are typically written by legal scholars for other legal experts, often employing complex and technical language.[12] In this instance, according to Steven Stark, your writing should pass the McDonald’s test.[13] In other words, if you were to read the document you are drafting aloud in a McDonald’s restaurant, people without any legal background should be able to understand what you are saying.[14] The main underlying principle here is that the author should utilise the exact words that he uses when ordering at McDonald’s. Instead of “Purchaser hereby seeks to order specified product from McDonald’s, subject to menu terms”, “I would like to order a burger, please”. Using this test as a basis the main goal is to create a “non-lawyer audience”, as those in McDonald’s restaurant, who cannot understand legal jargon without help.
The “non-lawyer audience” concept is also widely used by judges who want to accomplish the needed level of balance.[15] To communicate legal ideas to a broader audience, including non-legal experts, policymakers, and the public, judges create “ordinary reader” persona by acknowledging a person with average knowledge and experience.[16] Thereby, the use of the McDonald’s test and the concept of an “ordinary reader” provides a strong foundation for legal experts and judges alike. It allows them to effectively bridge the gap between technical legal language and a wider readership. Legal practitioners can create improved knowledge, engagement, and fairness in the delivery of legal ideas to legal specialists and the general public by prioritising clarity and accessibility.
Conclusion
In conclusion, effective legal writing is not simply a matter of writing well. Legal writers must consider the viewpoint of their audience and tailor their message appropriately. Achieving the right balance between complexity and clarity is key, as legal writing is often technical and complex but must be communicated in a way that is understandable to the intended audience. For this purpose, “creating” the relevant audience for the writing is an exceptional solution. Ultimately, legal writers can make their writing more effective, persuasive, and successful by putting their readers’ needs and expectations first.
[1] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing, 27 (3rd ed. 2009).
[2] Richard C. Wydick, Plain English for Lawyer, 58 (5th ed. 2005).
[3] Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Papers, and Getting on Law Review, 370 (4th ed. 2010).
[4] Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well, 229 (2nd ed. 2002).
[5] Carol M. Bast & Margie Hawkins, Foundations of Legal Research and Writing, 261 (4th ed. 2010).
[6] Goldstein & Lieberman, supra note 4, 23.
[7] Armstrong & Terrell, supra note 1, 14.
[8] Supra note 4, 109.
[9] Volokh, supra note 3, 144.
[10] Supra note 1, 15.
[11] Steven D. Stark, Writing to Win: The Legal Writer, 38 (2nd ed. 2012).
[12] Bryan A. Garner, Legal Writing in Plain English, 125 (2nd ed. 2013).
[13] Stark, supra note 11.
[14] Ibid.
[15] Bryan A. Garner, The Redbook: A Manual on Legal Style, 502 (3rd ed. 2013).
[16] Ibid.
Author: Fidan Musayeva, Baku State University Law faculty, a freshman.