A young law student emailed me after a recent talk I gave about principles of good drafting. (I know, not the most exciting topic, but as I have mentioned in an earlier blog, an important one for lawyers and anyone else wanting to get a clear message across).
She wrote: “I found it to be very useful, especially the ‘keeping it simple’ point. I am a law student and have been constantly battling with those long, single-sentence-per-paragraph type judgments. I have to confess that I have been imitating that writing style to a certain extent because nobody at the law school teaches students how to do legal writing.”
That took me back in time to my first couple of years in law school when I too struggled to come to terms with what to make of this new world of legal writing, and tried to learn how to write in this new language of ‘legalese’. Finding out what actually was relevant in lengthy judgements or submissions sometimes took some doing. The same thing can occur reading some letters, affidavits and pleadings. What is the real point being made by the author?
The more simple the document you draft, the less the scope for confusion. Even difficult and complex factual issues can be drafted simply, although it will take time to put those complexities clearly. The principles of plain English drafting come into play.
One of the best books I have found on this subject is James C Raymond’s ‘Writing for the Court’ (Carswell, Canada 2010).  It gives some excellent examples of matters to take into account in drafting. Although it is written in the context of drafting submissions and judgments most of what it says is equally applicable to drafting contracts, letters and emails.
As Raymond says:
Think about how you would explain what you are asking the clients to agree to in common language and as much as possible reduce it to that. When you go home you do not say ‘pass the salt please, and the pepper therewith.’ You do not write to your dearest spouse ‘hereinafter called honey lips.’
Raymond gives an example of an exchange he had with a judge who he was assisting in judgment writing.
‘I once had the following exchange with a gracious judge who allowed me to review his work in a tutorial session.
‘I had trouble figuring out what’s going on in this case until I got to page 15,’ I said. ‘This is where you get around to mentioning the issues.’
‘Yes, professor I can see that.’
‘And now that I know what the issues are, it seems to me that probably twelve of the first fifteen pages could be omitted, since they have nothing to with any of the issues.’
‘Yes professor, I agree.’
‘Just out of curiosity, why did you wait until page 15 to enunciate the issues?’
‘Well professor, to tell the truth I didn’t know what the issues were until I got to page 15.’
It was an instructive admission. Writing is often a means of discovering what we think. It is not unusual for judges and lawyers to discover the case as they write it.’
If what you have written has become more complex as you are still working out what you want to say, then go back afterwards and make it as simple as possible. Use that red pen on your writing – or the delete function on your computer – and get your point across as simply, and persuasively, as possible.
* KISS – According to that most prominent of authorities, Wikipedia, KISS is an acronym for “Keep it simple, stupid” as a design principle noted by the U.S. Navy in 1960. The KISS principle states that most systems work best if they are kept simple rather than made complicated; therefore simplicity should be a key goal in design and unnecessary complexity should be avoided.
 Available via Thomson Reuter Australia.
 Raymond, Writing for the Court, page 4.