To be concise is to be brief. To be clear is to express something we have a thorough grasp of in an easily understood way. To be cogent is to be persuasive.
These are the three qualities I constantly aspire to with my work.
On the rarest occasions when I achieve all three qualities, I haven’t just produced a piece of legal work for the client, I have produced legal art. It’s art because the presence of these three elements in any legal work blesses it with elegance and an aesthetic of its own.
It doesn’t matter what the work is. It can be a cogently written submission, an easy-to-read contract, a letter worded irrefutably, or an emphatic message. It can be me on my feet in court, or on my bum in a meeting or forum, flapping my lips. There is an art to infusing our work with these three qualities and so there is a potential for art in all these things.
If it is paper, I want the final written work to be as brief as possible whilst maintaining clarity and cogency. I want one word to do the work of three. I want three words to do the work of seven. I want all the words to get along with each other. I want them to be best friends and hang out often. Other times, I want a precise word and no other will do. I like to use words in a way that hits the several registers of the word’s meaning in one go.
I apply the principles of creative writing to my legal writing. I imagine myself like my favourite Japanese or African writers who possess the marvellous ability to weave so much evocative imagery from so few words. By stringing together the few they strew, they vividly recall the images, sound, smell, or a sense of dread and hopelessness or unearth the dark secrets we silently carry about our souls.
If a mere drop of ink on paper could carry my legal argument while keeping those qualities, I would try for it. In fact, I did. I can confirm that we cannot articulate an argument into a drop of ink. We need lots of ink, then. These days it’s pixels.
I hit my record of three pages for a written submission recently for an application for leave to the Federal Court. We were for the respondent (the party opposing the application). Our first page was the introduction. Our second and third pages contained the questions of law and our argument, barely exceeding a page. We won.
I was proud of that submission although it unnerved the solicitor. Three pages only ah? he remarked nervously when I sent him the submission. Yes, I responded disdainfully, three pages suffice for questions like those. The questions of law proposed were very, very poorly constructed. They were fatally flawed. If it weren’t for this fact, our submission would be longer. I concede that generally short submissions are easier to do for a respondent than for an applicant for such an application.
I am always looking for opportunities to keep the submission concise as possible. It is a hope of mine to one day file a winning one-page submission. In the unfortunate circumstance when I cannot keep the pages in single digits, I take extra care to keep the submission in the low end of the double digits; fifteen or twenty pages, on average.
To achieve that, I carefully choose the precise word. That lets me dispense with calling on others. I ruthlessly remove any word or phrase that serves no purpose, rearrange my words and sentences until they are tight and right, re-read the revised drafts and relentlessly refine the impression as a whole. It takes more time and effort to write a fifteen-page submission than it does a hundred-page submission. A serious, intentional effort is required to keep a submission concise, clear and cogent. All one needs to produce a tome of submission is vulgar, mindless effort, which is commonplace.
It’s the same when I use my voice. I want to utter as few words as possible. Whatever I say, I say once and say it as well as I can. I want the few phrases and words I selected to continue reverberating after we have fallen silent if possible lah. If someone said it earlier, there is no need for me to repeat it. I don’t want to read what I wrote out. My words should be a potent distillation of what I wrote.
When I am making a point in court, at a meeting, or at a conference, I keep it as concise as I can. I always go with the option of saying less. If I can get away with saying one sentence to make my point, I’d do it. The longer I talk, the flabbier my words and sentences, the more boring I am likely to be, and the less convincing I am. Some lawyers have a tendency to drone on. Those that think saying as much as possible is a high point or classy strategy of advocacy are woefully misguided.
Advocacy has a paradoxical quality to it; less is more and more is less.
When I am speaking whether in court or at a meeting, I am constantly listening and watching the room for facial expressions. I am reading their reaction to what I am saying and how I am saying it. Am I saying something interesting to them? Did they have a squeaky bum moment? Are their faces placid because they are bored? Where are their eyes looking – is it on the matter before them or some other screen off the side? Do I need to change tack to keep it interesting? I stay sensitive to the state of attention in a room.
That is important. If they are bored or I lose their attention, they are less likely to follow and so accept or agree with my submission or argument. Keeping it concise, not short, is a way to keep it interesting. Conciseness also demonstrates confidence. Those that are concise have an acute grasp of what is relevant and irrelevant. They stay focused on the relevant and extricate all irrelevance. It is easy to stray into irrelevance when we speak or submit. Relevance requires effort. It is not just talking.
There was an oral submission sometime back that I was pleased about because I managed to utter a few short sentences by way of reply and won. We acted for the respondent in an appeal decided after a full trial. I conducted the trial and flatter myself that I decimated the plaintiffs’ witnesses to the point the plaintiffs had no chance on appeal.
The matter came up for appeal after a trial in the Court of Appeal. The way the bench conducted the hearing was unusual. Not that I minded. They began the hearing by reading out the High Court judge’s key findings and asked the appellant to respond to them. That put the appellant’s counsel in a spot. He spent about half an hour addressing those issues only to dig a deeper hole for himself. Given the findings of fact against his client, he had difficulty convincing the bench there were appealable errors present.
When I was finally called upon to submit I said A very short reply, my lady. The respondent’s submission is there are no appealable errors or misdirection of law in this appeal. The High Court was sound on the finding of facts and application of the law. Its judgment should be affirmed. I pray the appeal is dismissed with costs. Thank you. And ended there. There was a silent pause when the bench looked at me and I at them through the video. They seemed momentarily non-plussed at how suddenly my submission was over. Is that all counsel? came the response from the bench. Yes, my lady. The bench adjourned for a short while before dismissing the appeal with costs.
Talking a lot is not a necessary precondition to succeeding in our appeal, hearing or whatever it is we want to say. In a world of too much, just enough is a beautiful thing; more so in a profession known for verbal diarrhoea.
Achieving conciseness, clarity and cogency is a personal standard I set for myself. There is one quality though that binds these three qualities together. Without this quality, they cannot hold together and will eventually fall apart.
That quality is courage or confidence. If we lack them in our work, we will lack cogency. The lack of cogency results in a loss of clarity, which leads to the jettisoning of conciseness. They are related.
What then is required to inculcate courage and confidence? We can start with a meaningful and authentic sense of interest and passion for whatever it is we are doing.