How to . . . improve your drafting

From Times Online
March 3, 2008

The written side of litigation may not be as glamorous but it's where much of the war is fought, says Catherine Newman, QC
Catherine Newman, barrister
Interview by Alex Aldridge

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Some people love to seem so clever. When I was younger I used to think that I was too stupid to understand those documents where you have to read a paragraph several times in order to understand it. But gradually I realised that the problem was that some people simply have a drafting style that is far too complex. Look at the speeches of the great House of Lords judges of our day: beautifully written but in plain, clear English.

Ambiguity is what gets lawyers into trouble. When writing a formal opinion one is able to think about exactly how to phrase something. But with advice increasingly being given more casually, there’s much greater scope for confusion to creep in. The immediacy of email means there’s an awful temptation to dispense with the polishing stage — and in litigation a little bit of polishing can make a huge difference.

Try not to make your missives too stinging. Many moons ago I was asked to draft an opinion explaining to a country solicitor why a client couldn’t extract money from a company that the court had ordered her to hand over to the other side. Of course, it was glaringly obvious that such a course of action would have been completely improper and likely to result in further litigation. Being very young, I may well have used that term “improper”. I certainly didn’t pull my punches. The response, a copy of which I still have to this day, begins: “I have received a stinging missive from Miss Chariots of Fire, who is fortunate that she does not have to make a living by the exercise of personal charm . . .”

Gradually you learn to code your language in more outwardly acceptable terms. A Chancery favourite is “utterly misconceived.” I use that a lot. Or, “We’re finding it rather difficult to understand the point you’re making.” If you receive that one, you can be sure that the other side thinks you’re talking complete bollocks.

A large part of the war occurs in the correspondence. I give the same level of consideration to drafting letters to the other side as I do to writing formal opinions. “Dear Judge” letters, I call them, because even if they’re written before litigation has commenced, they should always be drafted with the eyes of the judge in mind. They’re your opportunity to show not only that your client has behaved reasonably and sensibly from the beginning, but — and this is crucial for getting your costs if you win — that you’ve grasped the essential legal issues early on and have stuck to them.

Develop a flexible, anonymous style. If people spot your hand in the drafting, they may use it against you. There was an arbitration where we were against a solicitor based in Kazakhstan, who wrote the most mind-bogglingly rude letters — always unwise as judges hate correspondence that unnecessarily raises the temperature. This guy’s downfall was his inability to resist using certain pet phrases over and again. His client would never go to a meeting; he’d go to “a high level meeting with senior personnel” — that sort of stuff. It didn’t take long to spot the documents in which he’d had a hand.

Do your best to assist the court. Sitting part-time as a judge in Guernsey and as a recorder in the Crown Court, I’m well aware that case files often arrive on a judge’s desk at 4.15 in the afternoon on the day before a hearing begins. I always try to provide a thumbnail picture of my client’s arguments early on in my skeleton argument, just in case whoever is trying the case hasn’t managed to plough through everything I’ve written.

Other barristers are rather more cynical. I certainly know of two or three members of the profession who, when they don’t have a strong case, deliberately obfuscate by making their skeletons as long-winded and confusing as possible in the hope that the judge won’t have time to untangle the various arguments.

The written aspect of the job may not be as glamorous as the oral side of things. But it’s something that we commercial barristers take enormous pride in. I remember being asked as a very junior barrister to prepare a note on a particular section of an act of parliament that the court was construing. To my absolute delight, Lord Hoffmann (then a first instance judge), included a very brief acknowledgment of my “helpful” note in his judgment. Now that was real praise.

Catherine Newman, QC, is a barrister at Maitland Chambers