Monday, August 11, 2014

Good Writing Refines Legal Drafting

We now know how traditional legal drafting impedes writing and communication. Now reverse the logic. Good writing can improve legal drafting. All it takes is skill and will.

There's so much to explain, I could write a whole book about it. But I won't. At least, not now. The world is not ready yet. Every young aspiring lawyer is enamoured with the wispy haired high priests preaching platitudes about the virtues of hard work (which means doing what you're told) and loyalty (which means not trying do anything different). I can't break their aura of command just yet. I could, however, take a stab at it. Then a swipe. Slowly cutting my way through.

They're doing it wrong, I tell you. You and I, we can do it better. Bear with me. I'm going to tell a story. Then structure the plot lines and characters. And lastly, top it up with style.


Lord Kok of Ipoh speaks the truth

1. Story

Behind every case, there is a story. Where does the story start? Who are the main characters, and what are their roles? Which plot line ought to be fleshed out fuller? What is the theme? A good writer knows how to spin a good story. Everyone loves a good story, including the judge. A good lawyer, therefore, should always start with the story.

This story is about a fire. At a race circuit. Past midnight. A night 'time attack' endurance race. During a pit-stop refueling. Fuel spurted out from the hose. Flames ignited and engulfed a few mechanics. A young trainee suffered horrific burns. Five defendants sued: two drivers/team principal, corporate team sponsor, circuit owner/race organizer, and racing association.

A senior counsel and I acted for the association. The race had been licensed by the association. This meant that the association's international competition rules and safety standards applied, covering matters like car specifications, track design, provision of marshals and medical staff, and the refueling process. The rules are voluminous, split into annexes, numbering hundreds of pages.

Our story started even before the night of the fire. The race had been going more than a decade. Every year, months before the event, the association conducted track inspections and reviewed the race regulations. The association appointed monitoring stewards for the race. The rest of the race personnel - notably the scrutineers and fire marshals - were appointed by the race organizer.

Our story goes to places where we want you to be. Our story builds momentum that's hard to shake off, sidetrack from and stop short. Our story is a bloody damn good read.

Gather round, kids. Let me regale you a tale of intrigue and villainy from yonder, such like you never heard afore...

Illustration from armedwithvisions
 

2. Structure

A good story has structure. A good story doesn't ramble on and trap the storyteller into an embarrassing self-incriminating corner.

Most lawyers, being lawyers, jump straight into law. Oh, it's a fire, someone got burned, classic case of negligence, let's examine the elements of duty of care, breach of duty and causation. Wrong move. The law will always be there, pinned to books, and won't be fluttering away anytime soon. Sift through the facts first, then you'll know where to find the law.

Now, back to the race fire case. Put legal technicalities aside, and think about the possible areas where safety controls ought to be in place to protect participants. Circuit and equipment inspection? Check. Safety regulations for racing teams to follow? Check. Adequately trained personnel to detect hazards and intervene where necessary? Check. And there you have it. The typical types of duty imposed on defendants in control of potentially dangerous activities include: (i) duty to prevent or mitigate risk; (ii) duty to regulate; and (iii) duty to monitor and remedy. That's just the second level. We need to go deeper. Levels within levels.

From early on, we built our story. Whilst the rest of the defendants build their sub-plots around our story. Layer by layer, thread after thread, a tightly knitted web we spun. We controlled the narrative. We set the pace. We drew out the battle lines, subtly pointing out who does what, and what ought to be done and not be done.

Swept along the flow of our story, the plaintiff's lawyers swam circles around the event itself. They accused the team for using a faulty hose, the scrutineers for failing to detect the hose, and the fire marshals for not reacting in time to put out the fire.

Our case was not perfect. We had flaws of our own. Oh yes, we had. But they slipped through the cracks, faded to the background, drowned out by the noise. We didn't get away with murder, so to speak. But we certainly did get off rather lightly, with less scrutiny and less heat compared to the others. The pressure on us could have been greater. But the way we structured our story - and everyone else's story along with it - lifted a lot of the pressure away.

How my stories look like

3. Style

It was only late in the trial that the plaintiff's lawyer finally realised - perhaps after a closer look through our thick bundles - that the race regulations approved by the association may have deviated from the safety standards set by the international competition rules, especially the part about refueling procedures. But by then, it was far, far too late. The judge rejected the lawyer's attempts to adduce fresh evidence. The judge wasn't keen on taking a detour into the woods, away from the well-trodden paths paved by us.

Why did the oversight happen? True, it's largely the plaintiff lawyer's fault for not combing through the piles of documents. Then again, it's hard to notice something awry with a paragraph or two, when the story is long, rich and compelling. We created a labyrinth filled with forks, dead ends, and pathways leading away from the association. Levels within levels. Everyone - and not just the plaintiff - got lost in our maze, our web, our narrative. We played our beat. Everyone else danced to our tune.

There's one other special ingredient we had. It's called 'style'. It's not just what you say, but how you say it. A story can be told in a dozen different ways. A good storyteller is accustomed to different styles, and knows how to pick the right style for the right theme.

What was our theme? That of a benevolent watchful guardian, of course. We painted a sweeping panorama. We were like an eagle perched majestically atop a peak, gazing down at the battlefield from afar. And so, we crafted our language to be clear, succinct and neutral. We didn't point fingers at anyone. We kept emotions in check. We let everyone else do the fighting.

At the end of trial, the association escaped liability (but not the corporate team sponsor and circuit owner/race organizer). And the judge loved our story. How can we tell? Easy. Out of all the parties' final submissions, the judge cut out our summation of the facts, and pasted them in verbatim into his final judgment (it's reported, by the way).


My story. Every word, comma and dot. ALL MINE!

Epilogue

No matter how difficult or boring a case is, you can always weave a good story. Win or lose, it doesn't matter. The true test of a good lawyer is how well he can project his ideas into the judge's mind. And a lawyer who writes well, with a fountain of imagination unfettered by legalistic shackles, projects ideas best.

Take another case of mine. We acted for the plaintiff, wrote a well-structured 144-page submissions, and eventually lost. Nevertheless, we put up a great fight and spun a good story. Our theme, stated at the opening line of our executive summary, lingered throughout. Here's what the judge had to say towards the end:
"Counsel for the Plaintiff describes this case as a case of a debtor turned victim, and a creditor and third-party purchaser turned villains. Having heard the evidence and the submissions, with the greatest respect I find that I am unable to subscribe to the Plaintiff's counsel's description of the parties." (emphasis added)

The defeat, crushing as it was, still tasted sweet. The villain-victim reversal angle? Oh yes, my idea, my words.

Build your story. Write it well. Draw your audience into a labyrinth of levels within levels. Guide their thoughts. Do all of that, and more often than not, you will find your happy ending.


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