These posts have been filed under: ‘writing’.
One common mistake in legal writing is excessive length. One of the causes of this is redundant phrasing.
For example:
We will provide a written witness statement.
This sentence is one word too long. There is no need to indicate that a witness statement will be written. What else could it possibly be?
This seems pernickety. In a sense it is, but if every other sentence is a word or two too long, the cumulative effect will be significant.
You will often hear people in tribunal saying ‘That begs the question’. Almost all of them are misusing the phrase.
‘Begging the question’ is a term from philosophy, specifically logic, that has a technical meaning. It means to advance an argument in which the conclusion is already contained within the premises.
This is easier to see in an example:
Only thieves steal things.
I am not a thief.
Therefore I didn’t steal that money.
Here I am trying to prove that I did not steal some money. But if you examine my statement ‘I am not a thief’ it means ‘I am not a person who has stolen things in the past’. It assumes the truth of the conclusion I am trying to prove. It begs the question.
The vast majority of people do not use it in this sense, but to mean ‘That leaves an important question unanswered’. For example: ‘That begs the question; why were you in the vault with a bag of money?’
Unfortunately, this is a no-win situation. If you use the phrase correctly, most people (including lawyers and judges) will not understand you properly. If you use it incorrectly, you may cause a wince if somebody does know the correct definition. At worse, some people will think you mean one thing and some will think you mean another.
Therefore, if you want to say that your opponent’s propositions presume his conclusion, say ‘His argument is circular’. If you want to say that your opponent has left important questions unanswered, say ‘He leaves important questions unanswered’.
Do not use them. You will look overexcited! Overeager! And quite possibly out of control!
Seriously, exclamation marks are not generally appropriate in legal writing.
They should never be used in pleadings or witness statements. You might occasionally use them in submissions, but very rarely. Unless you are reasonably experienced and confident you are a reasonably good writer it is best to swear off them altogether.
It is often useful to number issues or similar topics. It provides structure and organisation. For example, in a written submission it is common to see something like:
Issues
- Was Mr Smith an employee of Widget Makers Incorporated?
- Did the letter sent by Mr Jones to Mr Smith comply with the requirements of a Step 1 letter under the Standard Dismissal and Disciplinary Procedure?
- Did the decision to dismiss Mr Smith fall within the range of reasonable responses?
- Should Mr Smith’s compensatory award be reduced to reflect his contribution to his dismissal?
But always remember that the point of doing this is to make things easier, not to introduce a new source of potential confusion.
If your written submissions list a set of issues on page 2, then on page 11 you refer to ‘Issue 3′, there is a good chance that the person reading it will not remember what that issue is. They will have stop reading, break their train of thought, and flip back to page 2. Or they may press on, uncertain of what you are getting at, but hoping that it will become clear from what comes next. Neither of these possibilities is a good thing.
The solution is to refer to the nature of the issue as well as the number. For example:
Issue 3: Range of reasonable responses
Submissions arguing that dismissal fell outside the range of reasonable responses.
A number of people have commented or emailed about “Do not submit” which recommended that advocates eliminate “I submit” from their vocabulary when addressing the tribunal.
Since the consensus is against me it might be worth setting out in more detail why I dislike it.
Firstly, it offends against the signal to noise principle. Submissions should contain as high a percentage of substance as possible. Anything that does not contribute to your argument should be removed. “I submit” adds nothing meaningful; the tribunal knows you are making submissions.
Secondly, there is a real risk of it becoming an annoying tick. Any phrase repeated often is likely to grate. Once you start saying “I submit” it is hard to know when to stop. After all, everything you say is a submission. Many people find themselves repeating in almost every paragraph they write or every minute as they speak. This has much the same impact as fingernails on a blackboard.
Finally, it puts distance between you and your submissions. It is not as bad as saying “My client’s instructions are to submit”, but the affect is similar. By saying “I submit” you are emphasising your formal role. This may be more comfortable for you the advocate, but it make it harder to communicate conviction.
Abigail makes the good point that “I submit” can be used to show respect for the tribunal. There are certainly moments when this is useful. Say that the tribunal is strongly against you on a point and the dialogue is beginning to descend into a wrangle, rather than a discussion. Using “I submit” might emphasise the formal roles and defuse the confrontation. In general, however, this should not be necessary. You must respect the tribunal, but this means begin polite to them and keeping in mind their judicial role (meaning that you recognise that they are in charge of the hearing). Formal phrases, be they “I submit” or “Respectfully…” do not add anything to this.
Does anyone else have any views?
Many lawyers write and say things like:
All of these examples can be improved easily, by removing any reference to submissions. For example:
The second examples have the advantage of being shorter, clearer and more direct. This makes them more persuasive.
From time to time you will see the term “sic” used in a quotation. For example:
Bob Sampson made a decision that no reasonable men [sic] could have reached.
It is used to show that something that appears odd or wrong comes from the original. So, in the example above, “sic” indicates that the confusion between “man” and “men” was in the original, not a mistake by the person quoting it.
“Sic” is widely used in the academic world to avoid ambiguity and confusion. It appears in legal writing for the same reason.
There are good uses and bad uses of this. Precision is important. “Sic” can usefully clarify a quote where necessary.
On the other hand, too many people use “sic” as a goad; to pick up and point out every grammatical or other mistake that they percieve in what the other side writes. This is foolish point scoring. It will upset the other side to no good purpose and make you look like a bully.
If you do not use “sic” you have two options. Firstly, you can correct the original mistake in the quotation. This is normally the best option with spelling mistakes. It is less appropriate when the mistake is one of grammar or wording, since you may be accused of altering the meaning of the quote. The second option is simply to replicate the original, without comment. Where there is no possibility of confusion, this is a perfectly sensible approach.
Finally, if you do use “sic”, be sure you are right. Mistaken pedantry is rarely attractive.
The Court of Appeal has commented on the proper use of skeleton arguments in Tombstone Ltd v Raja & Heals.
Although the case had nothing to do with employment law, the comments are relevant to skeleton arguments generally – in the EAT as well as the Court of Appeal.
The full comments of the Court are set out below. In summary, they warn against excessive length and make clear that skeleton arguments are intended as an aid to oral advocacy.
This is not straightforward. It is clear that in Tombstone itself the skeleton was too long. It is also true that a concise and focused argument will be more persuasive than a verbose one.
On the other hand, taking the guidance in Tombstone too much to heart is probably a mistake. In our experience, ‘skeleton’ arguments do now almost invariably amount to full written submissions capable of standing alone. Whether that’s a good thing is open to debate; but the reality is that the members of appellate courts will normally have read the skeletons and formed at least a provisional view before the hearing begins. That means you have to do a lot of the work of persuading them in your skeleton – especially as the chances are your opponent will have.
If some judges will bark at you for producing an excessively fleshy skeleton, others will raise an eyebrow if you try to say anything in oral submissions that isn’t covered in your skeleton – or, worse, make up their minds on the written material and then scarcely let you get a word in edgeways once you’re on your feet.
The key is to understand that a well written skeleton can make your whole argument, without becoming over long.
Lord Justice Mummery said:
122. We end this judgment with a criticism of the excessive length and complexity of Tombstone’s skeleton argument. It has 110 pages of text plus 64 pages of Appendices. Although its authors set out to assist the court, as well as the client, by a very thorough presentation of Tombstone’s case, it is sensible to set reasonable limits to its length.
123. Mr Onslow described it “as an extremely long document” for a case that, while unusual, was not unduly complex. The appeal was from a judgment of modest length (27 pages). It was very hard, he said, to see what justified such voluminous arguments. Most of the legal issues have been settled by existing authority. No primary findings of fact are challenged on the appeal. He added that, from Healys’ perspective, this had added to the length of their skeleton argument (56 pages), which they had tried to keep as short as possible. It had also added considerably to the cost and length of the appeal.
124. The length of Tombstone’s skeleton did not assist the court. In fact, it tended to detract from Tombstone’s case, which was accurately and far more succinctly stated by Mr Onslow in his written and oral responses to it. His team adopted the technique of briefly stating the points taken by Tombstone and then concisely commenting on them.
125. Practitioners who ignore practice directions on skeleton arguments (see CPR 52PD paras 5.10 “Each point should be stated as concisely as the nature of the case allows”) and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions. The skeleton argument procedure was introduced to assist the court, as well as the parties, by improving preparations for, and the efficiency of, adversarial oral hearings, which remain central to this court’s public role.
126. We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.
127. Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the growth in written advocacy (written opening and closing submissions and “speaking notes”, as well as skeleton arguments) has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs. They are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing, reading and writing time. As has happened in this case, the opponent’s skeleton argument becomes longer and the judgment reflecting the lengthy written submissions tends to be longer than is really necessary to explain to the parties why they have won or lost an appeal.
128. The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them “in our own time” after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court.
From time to time you will want to emphasise text in a document you are writing. The most common use is drawing attention to a particular part of a quote, but there are many other situations where emphasis is useful.
There is one good way of doing this. It is to put text in italics. Like this.
If, for whatever reason, you don’t like italics, there are two acceptable alternatives. You can use bold or underline.
The reason that the last two are less desirable than italics is that they make your document slightly harder to read and slightly less attractive. These differences are minor. Only a typography nerd will notice or care. For practical purposes, there is little difference between italics, bold and underline. Having said that, since italics are that little bit better, why not use them?
Whatever you do, it is best to pick one method. A document with italics, bold and underline on the same page will look odd and be hard to read.
Even if you stick to one method, it is best used sparingly. If you emphasise everything, nothing will be emphasised. And, again, a page which is half bold type will look strange.
Do not use different colours or changes in size. They look awful.
All of this advice is aimed at emphasising text inside paragraphs. The rules for formatting things like headings or titles are rather more relaxed, although restraint is a good policy there as well.
There are two reasons to get this sort of thing right. The first is that it will make your document look better. It is the written version of shaving and putting on a clean shirt before going to the tribunal.
The second is that lawyers tend to associate badly formatted documents with bad cases. That is not an association you want the tribunal to make. This is one of those prejudices that is partly, but not entirely, justified. The fact that someone writes only in capitals does not mean that their case is weak. But it is rarely a good sign when someone turns in the written equivalent of an impassioned rant, full of strange fonts, half in bold and with large sections of green ink.
Do not, however, allow yourself to become neurotic about formatting your document. Cases are not won or lost on the beauty of the parties’ typesetting (if they were the standards of legal typography would be much higher). The only thing you really need to avoid is turning your document into a mess. If you are aware enough to worry about this issue, you have nothing to worry about.
If you have been knocking around the wonderful world of employment tribunals for a little while, you will have accumulated a few completed cases. It is worth, from time to time, pulling out these files and reading through them. In particular, take a look at the written work you did.
This tends to be quite humbling. You will almost certainly feel that, six months or a year ago, you were terribly green and that now you’d do much better. As well as being quite good for your soul, this helps you identify areas where you can improve further. If your old letters read as unbearably pompous, then that is something to watch out for in the here and now. If you tended to waffle on without making a clear point then redouble your efforts to be clear. Think about how you’d approach the old case now, and you’ll probably get useful insights.
You’ll also probably spot some good work, which you can re-use.
While you’re at it, look at what your opponent did, particularly if they were a professional representative. While the case was going on you probably reacted to their submissions with a little bit of attitude. A sort of general feeling of ‘What tosh, and also pish’. Once the case is over, and you are less involved, you are more likely to be objective. A good opponent is one of the very best people to learn from.