Best Writers, Best Lawyers: Tips On How To Be Both

• Published date: 09 March 2022
• Subject Matter: Strategy, Law Department Performance, Knowledge Management, Workflow and Workload Management , Performance
• Law Firm: Fogler, Rubinoff LLP
• Author: Mr Ronald D. Davis, Robert Macdonald and Teodora Prpa

Ronald D. Davis*, Robert Rotenberg⁺, Robert Macdonald*, Teodora Prpa*

*Fogler Rubinoff LLP

⁺Rotenberg Shidlowski Jesin, Barristers

"The lawyer's business is with words: They are the raw material of his craft."

- Lord MacMillan (1873 -1952)

1. Lawyers and Writing

Despite his antique gender exclusion, Lord MacMillan was right. Lawyers are only as good as their language. A lawyer can have all the legal knowledge in the world, but if they can't marshal the words to convey that knowledge, they and their work are the lesser for it.

It's not only about craft. It's also about ethics. Lawyers have an obligation to "perform any legal services undertaken on a client's behalf to the standard of a competent lawyer", says the Law Society of Ontario in Rule 3.1-2 of the of the Rules of Professional Conduct. It has "baked in" writing and drafting to the very definition of competence:

3.1 COMPETENCE

Definitions

3.1-1 In this rule,

"competent lawyer" means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client including

[...]

(c) implementing, as each matter requires, the chosen course of action through the application of appropriate skills, including;

[...]

(iv) writing and drafting;

(For lawyers' common law duty to exercise reasonable care, skill and knowledge, see: Ristimaki v. Cooper, 2006 CanLII 12415 (Ont. C.A.).)

Beyond competence, lawyers have a professional duty to show care and respect for clients, the Courts, the profession, and the public. Written communications should reflect care and respect.

2. Writing. Let's Talk About It

You know the law. You may be the smartest one in the room. But, as we said, if you cannot express yourself well, wield words with precision, and convey your intended meaning - all your knowledge and smarts will sink into the murk of incomprehension and puzzlement. Factums, contracts, transfers, letters, submissions: so much of the lawyer's work depends on writing.

Our aim here is not good writing. It's best writing. About being the best lawyer one can be, by using the best writing one can do.

So let's talk about best writing.

(i) A Prerequisite.

Know. Your. Language.

Too many lawyers just do not know their language. Examples abound. Bad grammar: "The Judge asked you and I to be there." Bad syntax: "The Coroner's office provided DNA samples from two men frozen in a stainless steel tank." Bad vocabulary: "The defendant sent the plaintiff really gross emails." Words can have power, but the sample sentences we just cited have too little power. Once corrected, they are stronger: "The Judge asked you and me (or us) to be there." "The Coroner's office provided two men's DNA samples that had been frozen in a stainless steel tank." "The...