1. Have the point.
Lawyers prepare three kinds of documents: persuasive documents, information documents, and what I call “operative” documents. Persuasive documents include legal briefs written to a judge or letters to opposing counsel advocating a client’s legal position. If the point is not clearly made, the persuasive power of the document is lost. In fact, if the judge or opposing counsel don’t grasp the point, persuasion is usually impossible.
Information documents are intended to provide information and legal analysis describing various potential courses of action and discussing potential remedies. Information documents include research memoranda, status reports to insurance carriers and opinion letters to clients. These documents are written to an audience, such as a board of directors or corporate office claims adjuster, who will make a decision to choose between one of several legal options being presented in the document. Again, the key to informational legal writing is to clearly identify and to accurately describe the facts and applicable law applicable to each option. If the client didn’t grasp each option and the basis for each option, the client won’t get the point of the argument and could make a disastrously poor legal decision.
Operative legal documents include contracts, judgments, wills, trusts, articles of incorporation, legal disclaimers and settlement agreements, for example. The point of these documents is to resolve a client problem through the legal power of the document itself, without the need to resort to further adversarial legal proceedings. We want our carefully drafted will to be probated without challenge. We want our contracts to successfully control the enterprises without litigation over the terms of the contract and we want homeowners and the homeowners association board of directors to be able to understand the CC&R terms the same way, as much as possible. If the operative document is unclear, then the result will be unnecessary and expensive litigation.
Whether a legal document is persuasive, informational or operative, if the purpose of the document is clear, it is more likely to be effective – a goal desired by all lawyers - to be effective, make the point clearly and soon. In the next section, I discuss some means to make that point.
Comments