Written Advocacy

Page 73

6 Written Advocacy

When you draft a document for the court, you are starting the process of persuasion.

English barrister Ian Goldrein QC was fond of asking his students:

‘What was written on the cakes in Alice and Wonderland?

“Eat me!”

Your documents should have “Read Me” written on them.’

I am sure you have received an email (usually from the Human Resources or Marketing Department of your firm) which has no paragraphs and is full of jargon. My practice was to save it to read later. Then, invariably, I forgot. None of the emails had ‘Read me’ on them.

A person I worked with would write very long and very turgid emails to his staff. The really important message that he wished to convey was buried in a sentence on line 56. No one reading his emails would make it that far, and he would get really cross that people had not heeded his order.

I have seen witness statements that run to hundreds of pages. They are written by lawyers who are very bright and who don’t miss a single important fact – it’s just that those important facts are lost in a sea of verbiage. The witnesses just sign the statement. It’s not in their own words. Everything is covered but nothing is distilled.

It is manna from heaven for a smart cross-examiner.

I often think of the judge sitting in her chambers and looking at a mountain of badly drafted pleadings and witness statements. Decision-makers must despair.

But there is hope. We can learn from some distinguished writers.

The first one who can help us is the memorably named Professor Betty Sue Flowers from the University of Texas.

Professor Betty Sue changed my life and she will change yours.

This is for all those people who feel like giving up as they look at a blank piece of paper or a blank screen and have no idea what to write. It is also for all those people who get half way through a document and dry up.

Page 74

74 Advocacy: A Practical Guide

Lastly, it is for all those people who have a deadline looming and think they are not going to make it.

Professor Flowers says that there are four roles to the played in the writing process: madman, architect, carpenter, judge.¹Sacrilegiously, I have changed carpenter to builder because I remember it better.

When you prepare to write you must think about these roles and play them properly. The technique is to play them in the right order and not move to a new role until you have completed the responsibilities of the role you are playing.

1 Madman, architect, builder, judge

Let’s begin, as we must, with the madman. Playing this role requires you to write down everything you want to include or cover in the document you are to write. The word ‘random’ is best used to describe this process. It’s a personal ‘brainstorm’ or ‘blitz’. You may have all the thoughts already at your fingertips but the madman remembers other thoughts while shopping or walking along the street, or even, as we shall see in due course, whilst in the shower.

The madman process could take anything from 10 minutes to 10 days. Don’t put the thoughts in order and don’t even think about writing sentences. Remember, no other role can interfere with this process.

When the madman is exhausted, you can then play the role of the architect.

The architect’s job is to put all the random thoughts into the right order. In advocacy, unlike murder mystery novels or jokes, it’s a good idea to put the punch line or the solution first.

Can any of your thoughts be grouped into headings? Are they logically arranged? Do you think the readers will find the arrangement of thoughts persuasive?

The third role is what I call the builder. The madman has supplied all the material; the architect has designed the house; now it is the time to start building. It is the builder’s job to create sentences from the arranged thoughts of the architect.

I spend more time on the construction of the sentences in due course.

¹Betty S Flowers, ‘Madman, Architect, Carpenter, Judge: Roles and the Writing

Process’ (1981) 58 Language Arts, 834–836.

Page 75

Once the sentences have been created, the judge can take over. The judge is the building inspector. He is pedantic and fussy. It is his job to check on the work of the architect, but more particularly, the builder.

The judge is not creative. He has little time for the sloppy thoughts of the madman. He has very definite views about the structure of sentences, their arrangement and the words used in them.

When he has finished his work, your document should be comprehensive and easy to read. With some polish it will be persuasive.

For most writers the process begins with the builder – or a rough draft of sentences. It works for some but not many. The other roles interfere. The madman says ‘You have forgotten to include this!’ The architect says ‘Don’t put it there!’ and the judge says ‘That’s a very clumsy sentence!’

No wonder, after 10 minutes of this constant interference, most writers give up.

Think about how it is for lawyers. We go to university and learn lots of long and pompous words and some pretty indigestible jargon. My cynical friends call them ‘money words’ because we can charge more for explaining them. ‘Hereinbefore’, ‘thereafter’ and ‘furthermore’ are just a few.

When I was a first-year lawyer my colleagues and I met in the pub to talk about our experiences in court that day. After a while, I noticed that one of my best friends was speaking in a foreign language. He’d spoken plainly at university, but now he was saying things such as, ‘I appeared this morning in the civil jurisdiction in respect of an application to amend particulars of claim pursuant to a notice served on the respondent ...’.

Back at the office, you had a Dictaphone shoved into your hand and you were expected...