Emma Morales (Allen & Overy): "When it comes to legal writing, less is more"
The ability of a legal document to persuade depends essentially on the strength of the arguments set forth in the text. This exposition must be clear, simple and brief so as to avoid confusion, asserts Emma Morales, a counsel in Allen & Overy's Madrid dispute-resolution practice.
In a world in which Martin Scorsese’s masterpiece The Irishman (lasting 210-minutes from start to finish) has been converted into a 4-part miniseries so that people may find time to watch it, many lawyers have not yet realized the importance of being short in their speeches and briefs of allegations. It is something that affects lawyers in general (there are some SPA’s with infinite clauses of endless wording no one takes ever the effort to read in full). But advocates in particular (acting both in litigation and arbitration) are probably the ones that “take the cake.”
This is a transformation that somehow takes place during the first years of their career. In everyday language, with greater or lesser correctness, we express ourselves in a simple way. But when junior lawyers start working in a law firm, they believe that to produce a quality legal brief it has to be long and full of obscure vocabulary. It is possible that part of the reason for this is the way case law itself is written. That is, the judgments are often a cut-and-paste of laws and other judgments without punctuation and with a diffuse structure. Classical authors also tended to have a more ornate style. Without better influences, junior lawyers import such style and keep it by inertia.
Whatever the reason, in my opinion, lawyers should make an effort to simplify legal language and make legal writings understandable not only by our clients, but also by judges, arbitrators or other lawyers. Often, I receive written submissions from colleagues that I find very difficult to read because of their length, style and lack of clarity in their exposition.
Organized and concise is key. In order to write quality, persuasive and effective legal briefs there are three rules that must be applied: structure, simplicity and concision.
I. Structure: any legal matter however complex it may be, has 3, 4 at most 5 relevant arguments, which are the ones that can tip the balance of a solution in favor of our client. These arguments must be clearly stated. This is the structure of our speech that any reader should easily identify and be able to follow. Even if it is an oral speech, this structure must be so obvious that it allows the listener to have a slip of attention but be able to return to our line of argument.
II. Simplicity: our explanations must be sufficient, our arguments substantive, our language precise, avoiding ornaments and adjectives that add nothing. This does not mean lack of sophistication, quite the contrary. It is about being direct in the message but accurate in its content, avoiding distractions (weak arguments and superfluous considerations) that far from adding, subtract. This applies to the eternal doctrinal or jurisprudential quotations that are frequently included in procedural briefs. Nor does it add anything to our pleadings to include disqualifications regarding the opposing party. What judges and arbitrators expect from us is that we explain why the opposing arguments are not likely to succeed. Likewise, it is of little use to attribute goodness to ourselves. If the presentation of our arguments is substantive and logical, it will fall under its own weight and will lead to the estimation of our claims. Neither because we say so nor because of the use of tautological arguments but because of the application of legal logic.
III. Concision: It is a classic that does not admit discussion: good things, when short, are twice as good. The human condition makes us distracted. Therefore, taking into account that this attention deficit is becoming more and more evident, we lawyers have to learn to be brief.
It is not a matter of not being profound, or of not sufficiently developing the arguments in defence of our clients. It is a matter of proofreading after drafting, in which, while maintaining the content, we should summarize the length and eliminate duplicities. There is a tendency to think that the more arguments we put forward or the more we repeat them, the more right we are. But this is far from the truth, anything we say that lack substance damages our credibility and the soundness of our client’s defence.
Less words, not less work
It is important to highlight that these three rules do not mean less work, on the contrary, being concise is much more time consuming than not being so. You need to put in a lot more work to be able to sift out everything that is unnecessary in your writing. Roman orator Cicero once excused himself for having written a long letter, by saying he had not time to make it shorter.
This work of concision is therefore much harder than reciting without limitation everything that comes into our heads. Personally, every time I draft a legal brief, once I have finished it, I try to reduce it by 25%. Clients really appreciate it when you send it to them for review. It’s a pleasure to be told “it reads very well”. And they say it with surprise, because it is not the standard in our profession where lawyers seem to believe that our work is justified “by weight”.
These principles or premises are equally applicable to courts and arbitration. It is true that before the courts the tendency is to be a little shorter. It is common for judges themselves to limit the time for lawyers to speak at hearings. There are even recommendations on the length of written pleadings, such as the Supreme Court’s regarding extraordinary appeals for cassation and procedural infringement, which limit the number of pages to 25.
However, in arbitration, duration times have gotten out of control. Lawyers sometimes forget that our job is to seek a solution to our client’s dispute. Such a solution, in the business world, will undoubtedly be more useful the sooner it is reached (even if sometimes delays may be the client’s aim). In spite of this, we often find ourselves in arbitration proceedings with several rounds of submissions of hundreds of pages, hearings that last a week, or document production enough to fill a library. It is true that disputes are complex, but our job is to simplify and resolve them.
Lawyers must keep in mind the economics underlying the disputes. Without losing sight of them, our job is to build the best legal strategy, the best story to defend our client’s interests. If our story is structured, legally sound, persuasive and clear, it will be effective. In this way we will better reach the judge, the arbitrators or even be able to convince the opposing lawyers and reach an agreement that puts an end to the procedure. Lawyers should be part of the solution, not part of the problem.
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