The importance of legal writing – contentious matters
The importance of legal writing for experts practicing law cannot be underestimated, especially in Ukraine.
In Ukraine, legal writing has historically never been included as a specifically designed course in law faculties’ programs. As a result, young Ukrainian lawyers often leave their alma maters lacking the skills to draft legal documents.
In practice, young lawyers have to learn how to draft documents from scratch while doing their first job, and the quality of their legal writing skills greatly depends on the quality standards in the law firm they join, the type of work they do, and on the ability and willingness of their bosses/mentors to pay attention to developing their legal writing skills.
That is why we at CMS Cameron McKenna Nabarro Olswang have decided to develop a course on legal writing for the law faculty at one of the top Ukrainian universities - National University “Kyiv-Mohyla Academy”. The course will have separate parts that will address legal writing in all kinds of non-contentious matters, held by my colleague Olga Belyakova, partner in CMS’s Kyiv Office, and a lecture on the peculiarities of legal writing concerning contentious matters, which I will deliver.
As a lawyer practicing litigation for many years, I know very well how important it is to be able to present the client’s position to the court or arbitral tribunal in clear and concise writing.
It is very true in disputes that the devil is in the detail. And those details are—guess where?—in documents! Lengthy submissions, exhibits, all sorts of complaints and other papers, all of these are critically helpful to win the dispute or solve the client’s problem but can easily be the reason for which you lose.
Based on my personal experience, the criteria for a good document in a contentious matter are:
(1) Structure. This is needed to make the document reader-friendly, i.e. it is not guaranteed that anyone will read a messy, lengthy paper making extra effort to identify the key arguments of the submitting party’s legal position. A poorly structured document can be extremely detrimental to the credibility of the legal position it takes.
(2) Length. A good document must be as short as possible. In these digital times, unnecessarily lengthy documents simply do not work. Businesses communicate via all sorts of messengers, and lawyers need to keep up with their clients. The truth is, however, that it is very difficult to say complex things clearly but succinctly.
(3) Content. This is important for obvious reasons. In contentious matters, you should always be careful regarding the way in which any information is presented, how the most important arguments are accentuated, and also how you deal with weaker points (these should be handled with elegance and without causing harm). As a practical tip, any legal document must be self-explanatory, clearly identifying the case/proceedings in which it has been submitted, the reason why it was submitted, the key arguments in support of the interested party’s position, what is sought/should be done by the addressee on its consideration and why.
And some Ukrainian specifics: legal writing skills are extremely important when you are dealing with any law enforcement authorities. Given their public reputations, whatever are the reasons for communicating with law enforcement in Ukraine, such communications should be in writing and, ideally, involve an attorney. This is needed to ensure constructive and neutral communication without unnecessary pressure or manipulation, and with no negative consequences.
Now, to conclude: strong legal writing skills are a must for anyone not only wishing to become a successful lawyer dealing with disputes in Ukraine, but also worldwide. So, if you are a young legal professional starting your career path, pay attention to learn these skills as soon as possible.