In the last issue, we provided tips on “writing processes”. In this issue, we take a closer look at “writing products”. Over the years, lawyers’ writing products have earned themselves a reputation for being overly complex, replete with archaic expressions and legal jargon, and generally difficult for the lay person to comprehend. Numerous attempts to encourage clarity and plainness of expression have ensued, and these have generated numerous rules of thumb: “focus on the actor, the action and the object”; “prefer the active voice”; “use base verbs, not nominalizations”.
These rules of thumb, as useful as they are, tend to be rather prescriptive. Here, we make some observations about legal writing taking a descriptive approach, which observes lawyers’ writing practices, in order to understand how they strategically use language to achieve their communicative goals.
We focus on strategies for presenting opinions in client correspondence. This is often the most sensitive part of the correspondence: it can be difficult for lawyers to be 100 percent certain about their opinion but they nevertheless need to present a clear opinion to their clients. Let’s see how one Hong Kong lawyer resolved this problem, when writing a barrister’s opinion for a solicitor, as observed in the first author’s empirical research. She summed up her opinion as follows.
“Having perused the correspondence between the parties, I believe that there is an enforceable tenancy despite the lack of a written lease.”
Leaving aside the overly formal use of the verb peruse, consider how the writer has strategically drawn on what applied linguists call “hedging” and “boosting” strategies.
- She explicitly reduces her commitment to the main proposition (“there is an enforceable tenancy”) by use of appropriate hedging, ie, the phrase I believe. One could also use in my opinion, or it seems to me.
- The main proposition itself is not hedged. If one were to do so (eg, “I believe that there may (perhaps) be an enforceable tenancy”), the opinion would lose its clarity.
- Finally, she boosts her opinion in the introductory clause (ie, “Having perused the correspondence between the parties”), which draws the reader’s attention to the work she has put in. To achieve this effect, a lawyer could also say, “Having taken all of the circumstances into account….”.
Such a combination of hedging and boosting strategies leads to the presentation of an opinion that is both strong enough to be clear and hedged enough to present an accurate picture of the writer’s state of knowledge and so accords with a solicitor’s ethical obligations (in particular, see Commentary 3 and 4 of Principle 5.18 of the Hong Kong Solicitors’ Guide to Professional Conduct. Vol. 1. 3rd ed. (2013).) Readers who are interested in other linguistic strategies for legal writing can refer to the material on our website Legal English in Hong Kong, which can be accessed at legalenglish.hk.