KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAM 2024

FIRM 01 PRESENTATION

COURSE: LEGAL WRITING AND DRAFTING

FACILITATOR: Ms. CHRISTINE KUNGU

DATE: 29TH FEBRUARY 2024.

 FIRM 1 MEMBERS

ADMISSION NUMBER NAME

20240927 ANN WANGARI

20241761 JAMES DOXYL OGUTA

20240501 CARON MORAA

20241315 BUYANZI SHARON

20240623 BARBRA MALALA

20240573 FELDON K. KORIR

20241820 BARACK SIBUOR

20240468 FAITH OBUNGA

20241102 JUDITH KIBON

Good Writing is Essentially Writing that Satisfies the Needs and Desires of the Reading

Audience. Discuss in the Context of Legal Writing.

One can be a good lawyer or judge and a bad writer, but not a great one without being a

good writer. – Stuart Berg Flexner (lexicographer, editor, author)

INTRODUCTION

Law is a profession of words.1 As a stethoscope is to a medical doctor, draft designs to an

architect or a voice to a singer, so are words to a lawyer. Words, oral and written, are the

staple of legal practice. Legal writing is the written output of lawyers. It covers a broad and

varied range of papers, including contracts, letters, pleadings, briefs, opinions, to name a

few.2 In essence, knowing the law does not guarantee success in the legal profession. In order

to not only avoid serious problems but also thrive in practice, a lawyer must well acquaint

himself with the fundamentals of good legal writing.

The foremost aim of legal writing is to communicate. Write in such a way the reader

understands what you want to say. There is here an obligation of courtesy; a writer must

always consider the reader’s comfort and convenience in mind. Indeed, Bryan A. Garner, an

American guru on legal writing avers, “Your readers are the ones, finally, who matter: You

have invited them to attend your words, you seek their precious time, and you may even

expect to be paid for your efforts. Courtesy requires that you show your readers some grace

and consideration.”3 Thus the golden rule of writing: write to others, as you would want

others to write to you.

1
Kathleen E. Vinson, Improving Legal Writing: A Life-Long Learning Process and Continuing Professional
Challenge (2005).
2
Atty. Loreto C. Ata, Hallmarks of Good Legal Writing <http:www.mabgslaw.com.ph/site/article/hallmarks-of-
good-legal-writing> 2013.
3
Bryan A. Garner, The Elements of a Legal Style (1991).
The Concept of Good Writing

In order to understand the concept of legal writing, the best approach is to look into the needs

of the reading audience. Essentially, good writing is writing that satisfies the needs and

desires of the reading audience. In the context of legal writing, this means writing that

promotes the readers ability to make the important decisions legal readers’ need to make in

the course of their professional duties. 4 Arguably, whether a piece of writing is regarded as

well written is a judgment of the reader, and not dependent upon the writer’s own assessment

of their work. The best that a writer can do is to reasonably determine, after the fact, whether

a given document was an effective document, i.e, whether it achieved the writer’s intended

purpose.

A reader may conclude that the writing style tracks their needs and interests, and therefore

advances their purpose for reading the document. 5 In the context of legal writing, this then

qualifies a document to be considered well written. It is the readers who determine whether a

document is well-written, based upon their perception as to whether the writing meets their

expectations. This is the case in not only legal writing, but also, writing in general. Concisely,

“good writing” means writing that fulfills the needs and interests of the intended audience.

The cardinal aim of good writing is to satisfy the needs of the reader. In this case, rarely do

the writer’s own assessment, purpose or opinion of the writer matter.

In the context of legal writing, the lawyers and judges who comprise the intended audience

have very particular needs and interests when they read legal documents. As opposed to

readers of fiction for instance, they are not looking for writing that entertains or edifies them.

Rather, lawyers and judges read documents because they need to extract information

4
Richard K. Neumann, Legal Reasoning and Legal Writing 51 (6th ed. 2009)
5
Mark K. Osbeck, ‘What is “Good Legal Writing” and Why does it Matter?’ (2011) 252 Public Law and Legal
Theory Working Paper Series 15.
concerning the law and its application to the facts. 6 This information, as earlier mentioned is

to aid the legal reader in their decision-making, and only then will the reader appreciate the

document as well written. Good legal writing can thus be understood as writing that helps

legal practitioners make decisions in the course of their professional duties.

This research paper endeavors to analyze the concept of good writing, in relation to law. It

aims to examine the foundational elements of good writing, i.e, clarity, conciseness and

precision. It examines why each of the qualities is essential to good legal writing. The paper

will also address the question of the reading audience, and the importance of balancing the

technical and accessibility aspects of a good writing, in order to achieve maximum audience

satisfaction, while maintaining technical accuracy in legal writing.

Understanding the Legal Audience

Understanding your audience should be the first consideration for any good writer before

they even begin writing. This understanding influences the vocabulary used, the technical

level and the organization of the content.7 In legal writing, the audience includes different and

distinct groups. These groups include; Judges, Advocates, Lawyers, Law students, Clients,

the general public… Etc. Recognizing the diversity of these groups is necessary as it allows

legal writers to tailor their approach, choosing the appropriate tone, level of detail and style.

Simple analysis of the audience

a) Judges

Judges are legal professionals with a deep understanding of the law. They expect and demand

precision, adherence to legal standards and a thorough grasp of case details.

6
Ibid.
7
M Cosgrove , ‘Writing for “the Audience” | IEEE Journals & Magazine | IEEE Xplore’ (ieeexplore.ieee.org)
<https://ieeexplore.ieee.org/document/6448769/> accessed 27 February 2024.
The writing approach would therefore require a formal, logical and meticulously structured

style, often referencing legal precedents (stare decisis) 8

b) Law Students/Lawyers /Advocates:

This group will value clarity, efficiency and relevance in communication. They will seek

concise yet comprehensive information. The approach used should balance technicality with

accessibility, using a language familiar to legal professionals but avoiding unnecessary

complexity.

c) Clients:

Clients come from diverse backgrounds and often lack legal expertise. They would appreciate

writing that is clear, tailored to their specific needs and questions and jargon-free

explanations, which will enable informed decision-making.9

The writing approach used should involve breaking down legal complexities into non-

technical language without sacrificing accuracy, fostering transparency in legal matters.

d) General Public:

If the target audience is the general public, the basic assumption is that they have no legal

background and may have varying levels of familiarity with legal processes. The writer

should adopt a straightforward, accessible language while maintaining accuracy, aiming to

demystify legal concepts for a broader audience.10

8
Kristin R Woolever, ‘The Dramatic Elements of Legal Writing: The Role of Audience’ (ERIC1 March 1986)
<https://eric.ed.gov/?id=ED278027> accessed 27 February 2024.
9
Kristin R Woolever, ‘The Dramatic Elements of Legal Writing: The Role of Audience’ (ERIC1 March 1986)
<https://eric.ed.gov/?id=ED278027> accessed 27 February 2024.
10
Ibid (2)
This nuanced understanding ensures that legal documents effectively communicate the

intended message to a diverse readership, contributing to the overall success of legal

communication.

Clarity, Conciseness, and Precision in Legal Writing

Achieving effective legal communication also involves mastering clarity, conciseness and

precision while creating documents that are both comprehensible and accurate.11

a) Clarity in Legal Writing:

Clarity in legal writing involves presenting ideas in a straightforward manner, leaving no

room for ambiguity. It employs tailoring the language to the understanding of the intended

audience, whether legal professionals, clients or the general public.

Ambiguous language can lead to misunderstandings and legal complications, emphasizing

the need for clarity in conveying legal concepts.12

b) Conciseness in Legal Writing

Conciseness is about eliminating unnecessary words and redundancies to streamline legal

documents. It ensures that each word serves a purpose, avoiding verbosity. Additionally it

conveys information efficiently, maintaining the reader's engagement without overwhelming

them with excessive details.

c) Precision in Legal Writing:

11
Esther Majambere, ‘Clarity, Precision and Unambiguity: Aspects for Effective Legislative Drafting’ (2011)
37 Commonwealth Law Bulletin 417.
12
Ibid (5)
Precision on the other hand requires using language with pinpoint accuracy to express legal

concepts. It is a safeguard against unintentional misinterpretation.13

Note:

While precision is crucial, excessive detail can hinder readability. One should balance the

use of legal jargon to maintain precision while ensuring accessibility. Moreover, good writing

in the legal context will adapt precision to the needs of the audience, offering detailed

explanations where necessary and simplifying where possible.

Meeting Legal Standards and Requirements

For a good legal writer to effectively achieve the purpose of writing, it is important for them

to think of writing as a four-step process; think of things they want to say, figure out a

sensible order for these thoughts and prepare an outline, write a draft by using the outline as a

guide and lastly edit the draft to come up with the intended message.14

To achieve this, a writer must first understand the particular assignment by carefully reading

the instructions and identifying the specific legal standards and requirements outlined which

may include; citation styles, formatting guidelines and other specific elements required 15. The

writer should then research the legal principles, statutes and cases relevant to the topic to

ensure that their arguments are supported by credible legal authorities. Other than that, the

structure and organization of the writing should be in a logical and coherent manner, starting

from introduction, the body paragraphs supporting a writer’s arguments and ending with a

conclusion.

13
B Coleman, ‘Are Clarity and Precision Compatible Aims in Legal Drafting’ (Semantic Scholar10 January
2007) <https://www.semanticscholar.org/paper/Are-Clarity-and-Precision-Compatible-Aims-in-Legal-
Coleman/eab5a68618fc9306f2c9e3fddce92cb5bde96b06> accessed 27 February 2024.
14
Bryan Garner, Legal Writing in Plain English, University of Chicago Press (2nd edition) 2013
15
Nancy M. Smith, “A plain English Handbook, How to create clear SEC disclosure documents”,( August
1998)
A good legal writing should also have clarity and precision. The main purpose of writing is to

clarify that which would otherwise be unclear and thus ensuring that the message gets

conveyed to the intended reader. Therefore, a writer should ensure that everything written

should say what they intended to convey to the audience. Lastly, a good legal writing should

be free from any grammatical errors, typos and formatting issues. This enhances readability

of the document while also meeting the required legal standards.

Balancing Technicality and Accessibility

Balancing technicality and accessibility in legal writing is important in achieving effective

communication across diverse audiences. While legal documents require technical precision,

it is important to present complex ideas in a way that is easily understood by both legal

professionals and those without a legal background. This can be achieved by using clear and

straightforward language, without compromising the intended message. 16The writer in this

case can therefore, define legal terms in plain language when first introduced in order to

ensure that the audience can understand the content in the document.

This however, does not mean that technicality should be sacrificed entirely as some terms

may have specific legal meanings, and precision is paramount in legal writing. Therefore, it is

important to strike a balance by contextualizing technical terms and providing explanations

without compromising legal accuracy. This balance can therefore be achieved through the use

of a clear and plain language, defining complex legal terms and providing context in order to

make legal writing easily understandable to a diverse audience while still maintaining

accuracy and precision.17

Ethical Considerations in Legal Writing

16
Richard Wydick, Plain English for lawyers(2011)
17
Ibid
Ethical considerations are paramount in legal writing, as in any form of communication

within the legal profession.

1. Adequate legal research

Various professional bodies governing the conduct of attorneys in legal representation require

an attorney to offer competent legal representation. Competent representation requires the

legal knowledge, skill, thoroughness and preparation reasonably necessary for the

representation.18

However, many attorneys apparently fail to conduct even basic legal research. In

Baladayaque v United States, an attorney’s lack of research was apparent after he failed to

secure a writ of habeas corpus on the misinformation of the same being time barred. The

Court found that the attorney, Mr. Weinstein had violated the State Ethics Rule, which is

identical in wording to rule 1.1 of the Model Rules of Professional Conduct.19

Similarly, The Law Society of Kenya through its Code of Standards of Professional Practice

and Ethical Conduct (SOPPEC) behoves the advocate to conduct himself diligently in client

care. Failure to do so would be dealt with as professional misconduct.20

2. Adequate legal writing

In addition to conducting adequate legal research, an attorney is required to professionally

undertake his writing or drafting. The competence required under rule 1.1 includes adequate

writing skills.21

18
d. In Howard v. Oakland Tribune, 245 Cal. Rptr. 449, 451 n.6 (Cal. Ct. App. 1988), the annoyance of the
court was palpable when it chastised the attorney for sloppy citations. "We were not aided in our resolution of
this appeal by the appellants' opening brief, which was riddled with inaccurate and incomplete citations and
which frequently referred to cases without reference to the pages on which the cited holdings appear." Id
19
Model Rules of Professional Conduct (2004) r. 1.1
20
Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, SOPPEC 4
21
Carol M. Bast, Susan W. Harrell, ‘Ethical Obligations: Performing Adequate Legal Research and Legal
Writing’ 2004
In Kentucky Bar Association v Brown, attorney Brown filed an appellate brief that was ‘‘a

little more than fifteen unclear and ungrammatical sentences, slapped together as two pages

of unedited text with an unintelligible message.’’ The Supreme Court of Kentucky noted that

Brown's brief ‘‘would compare unfavorably with the majority of the handwritten pro se

pleadings prepared by laypersons which this Court reviews on a daily basis.’’ The Supreme

Court of Kentucky suspended Brown from the practice of law for sixty days for violating the

state ethics rule that was identical in wording to Model Rule 1.1.

In In re Hogan, attorney Hogan "lacked the fundamental skill of drafting pleadings and

briefs," with some of the passages understandable and other passages "incomprehensible. The

Supreme Court of Illinois placed Hogan on inactive status while undergoing rehabilitation. In

1998, Hogan filed a Petition for Restoration to Active Status with the Hearing Board of the

Illinois Attorney Registration and Disciplinary Commission. The Hearing Board

recommended that Hogan's petition be denied because Hogan had not undergone any

treatment since 1987 and the petition Hogan submitted showed that his writing was

"incomprehensible.

The Law Society of Kenya in its Professional Conduct Rules, demands of an advocate to be

competent, diligent and ethical in his engagement.22

3. Accuracy and truthfulness

The most important rule when drafting is to ensure that the facts stated are accurate. While

presenting facts, the writer should verify the truthfulness of the record. Above the role of

representing the client, a lawyer is an officer of the court and is duty bound to maintain

honesty even where certain facts may be adverse. 23 He cannot distort the facts or make up

22
Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, SOPPEC 4
23
Professor Edwin Fruehwald, ‘Legal Writing, Professionalism and Legal Ethics’
facts. Similarly, a lawyer can reasonably interpret the law, but the presentation of the law

must be accurate.24

The lawyer’s duty of honesty to the court and opposing side when writing to the court is

paramount. There is also a rule in most jurisdictions that a lawyer must present binding,

adverse authority to the court, even if it hurts the lawyer’s case. This rule exists so that the

court can have an accurate picture of the law, not a distorted picture caused by one side’s

poor research skills. This is also a practical rule: If the court discovers unfavourable authority

that an attorney failed to disclose to the court, the attorney appears dishonest.

Similarly, The Law Society of Kenya, requires advocates to maintain at all times the highest

standards of honesty and integrity towards clients, the court, colleagues, all with whom the

Advocate has professional dealings and the general public. 25 In addition, advocates owe

fidelity to the law and due process.26

It also encompasses the need for advocates to engage in zealous advocacy within ethical

bounds.

4. Avoiding plagiarism

Plagiarism is the theft of another person’s intellectual property. 27 This occurs where a writer

fails to give credit to the rightful owner of the thoughts he has expressed in his writing.

Samuelson warns that it is dangerous for a writer to closely track the language of a case or an

article.28 Even where many footnotes are included without the writer having internalized the

content of material, plagiarism shall still manifest.29

24
Model Rules of Professional Conduct (2004) r. 1.1
25
The Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, SOPPEC -12
26
Ibid, SOPPEC- 8
27
S van der Merwe, ‘Cautioning the Careless Writer: The Importance of Accurate and Ethical Legal Writing’
(2014)
28
Samuelson 1984:162.
29
Ibid
 Legal writers should avoid plagiarism by properly citing sources and giving credit to the

original authors. Failure to do so can result in professional and legal consequences.

5. Avoiding conflict of interest

Legal writers must be mindful of potential conflicts of interest and take appropriate steps to

address or disclose them. This includes avoiding situations where personal interests may

conflict with those of clients or other parties involved.

The Law Society of Kenya Code of Practice, in this regard, require advocates to disclose any

underlying conflict of interest and proceed only upon the client consenting to continued

representation.30

6. Avoiding Bias and Discrimination

Legal writers should strive to eliminate bias and discrimination in their writing, treating all

parties fairly and impartially regardless of factors such as race, gender, religion, or

socioeconomic status.

As Bret Rappaport suggests that genre in the legal context may skew rational thought in two

ways. It constraints the texts that lawyers and judges use in specific circumstances and it

influences the readers.31

He posits that instruments of knowledge, which are called ‘texts’ emerge from encasements

which are referred to as the ‘genres’. This is the cognitive process of classification that

channels thinking and thereby influence individuals' communicative actions. 32 It is “a situated

form of cognition” and thus a powerful bias. Legal writers such as attorneys and

30
The Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, SOPPEC -6
31
Bret Rappaport, ‘A Lawyer’s Hidden Persuader: Genre Bias and How It Shapes Legal Texts By Constructing
Writers’ Choices and Influencing the Readers’ Expectations’ (2013)
32
Ibid
academicians therefore rely on genres to shape their writing and speech and to make each of

them “a recognizable response to the exigencies of the situation.”

Legal writing demands an understanding of the self. Good legal writers understand and

acknowledge their own biases, their conflicts, their agency and power. They ‘communicate in

a voice of their own – as a lawyer and as a mind’. As Bell and Pether point out, ‘the genres of

legal discourse are explicitly concerned with issues of power and authority’. Good writing is

reflexive.33

Legal writing also demands awareness of the other. As a legal writer, you must sustain

awareness that what you write has consequences for others beyond the person for whom the

writing is intended. This requires the legal writer to take account of the other side, not as

someone to be beaten but someone with interests, needs and goals as well.34

Legal scholars have an audience - an audience with expectations precast by genre. Victor

Hugo aptly wrote “life is a theatre set in which there are but few practicable entrances.” 35 All

legal writing is also a theatre set, with performers, a script, and an audience. For the theatre of

legal writing, genre is not only the most practical entrance, but the essential one.

Conclusion

While it is okay to say that a document that accomplishes the writer’s purpose is an effective

document, since it meets the objective of the writer; concluding that it is a well-written

document would be hasty. A more promising approach would be to look at the needs and

interest of the target audience.

33
Bell B, Pether P, ‘Re Writing Skills Training in Law Schools Legal Literacy Revisited’ (1999)
34
Bret Rappaport, ‘A Lawyer’s Hidden Persuader: Genre Bias and How It Shapes Legal Texts By Constructing
Writers’ Choices and Influencing the Readers’ Expectations’ (2013)
35
Victor Hugo, ‘The Back Room of Café Musain’ (2013)
Therefore, good legal writing manifest elements including clarity, conciseness, precision,

meets the legal standards and requirements, balances technicality and accessibility and takes

into account ethical considerations. Adhering to these elements would ensure the reading

audience’s satisfaction.

It is further advisable that legal writers engage in ongoing education and self-improvement to

stay abreast of developments in the law and best practices in legal writing, ensuring that their

work meets the highest standards.