We’ve heard this before: good legal writing should “flow.” But how to achieve it?
To me, flow means connecting discrete thoughts — to one another and the overall analysis — so your reader’s never lost as she travels from one idea to the next.
This is easier than you think. It has a lot to do with the first sentence of each paragraph. That first paragraph should do two things:
Telegraph what the paragraph is going to be about; and
Signal how the paragraph relates to the last one.
1. Telegraph what the paragraph is going to be about
Readers absorb information best if they can grasp, right away, its significance. Begin each paragraph with a topic sentence that introduces the paragraph’s main idea and the point you plan to make. This will give your readers a focus before they get into the details.
Topic sentences are particularly important when discussing a line of case law. Too often, lawyers use the first sentence of a paragraph to describe the case name, citation, and court’s holding (or worse — the facts of the case). This can be disorienting for the reader, who, unlike the writer, has not spent hours researching the legal issue.
Instead, dedicate a few words, right at the front of the paragraph, to explaining why you’re talking about the case.
Below is an example from the joint dissenting reasons of Abella and Karakatsanis JJ. in Vavilov, the Supreme Court of Canada’s latest on the judicial review of administrative decisions. The justices had a challenge before them: to plod through a whole lot of cases while keeping the reader from losing interest or getting lost. I don’t think I’m alone in finding this area of the law incredibly boring. But the justices kept me tripping along with the help of great topic sentences. I have bolded them.
The canonical example of Dicey’s approach at work is the House of Lords’ decision in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, the judicial progenitor of “jurisdictional error”. Anisminic entrenched non-deferential judicial review by endorsing a lengthy checklist of “jurisdictional errors” capable of undermining administrative decisions. Lord Reid noted that there were two scenarios in which an administrative decision-maker would lose jurisdiction. …
The broad “jurisdictional error” approach in Anisminic initially found favour with this Court in cases like Metropolitan Life Insurance Company v. International Union of Operating Engineers, Local 796, 1970 CanLII 7 (SCC), [1970] S.C.R. 425, and Bell v. Ontario Human Rights Commission, 1971 CanLII 195 (SCC), [1971] S.C.R. 756. These cases “took the position that a definition of jurisdictional error should include any question pertaining to the interpretation of a statute made by an administrative tribunal”, and in each case, “th[e] Court substituted what was, in its opinion, the correct interpretation of the enabling provision of the tribunal’s statute for that of the tribunal” (Canada (Attorney General) v. Public Service Alliance of Canada, 1991 CanLII 88 (SCC), [1991] 1 S.C.R. 614, at p. 650, perCory J., dissenting, but not on this point)….
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In 1979, the Court signaled a turn to a more deferential approach to judicial review with its watershed decision in C.U.P.E. There, the Court challenged the “jurisdictional error” model and planted the seeds of a home-grown approach to administrative law in Canada. In a frequently-cited passage, Dickson J., writing for a unanimous Court, cautioned that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” …
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In subsequent decades, the Court attempted to reconcile the deference urged by C.U.P.E. with the lingering concept of “jurisdictional error”. In U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, the Court introduced the “pragmatic and functional” approach for deciding when a matter was within the jurisdiction of an administrative body. Instead of describing jurisdiction as a preliminary or collateral matter, the Bibeault test directed reviewing courts to consider the wording of the enactment conferring jurisdiction on the administrative body, the purpose of the statute creating the tribunal, the reason for the tribunal’s existence, the area of expertise of its members, and the nature of the question the tribunal had to decide — all to determine whether the legislator “intend[ed] the question to be within the jurisdiction conferred on the tribunal” (p. 1087; see also p. 1088). If so, the tribunal’s decision could only be set aside if it was “patently unreasonable” (p. 1086).
Can you imagine wading through those cases without the topic sentences?
Notice also how you get the gist of the reasoning by reading only the first sentence of each paragraph. Good topic sentences do that.
2. Explain how this paragraph relates to the last one.
Topic sentences also require a “transition” linking the paragraph to the one that precedes it. These are the signposts that keep your reader on track.
Transitions come in many forms. In Legal Writing in Plain English (which is so good), Bryan Garner explains three types:
Pointing words —- this, that, these, those
Echo links — words or phrases in which a previously mentioned idea reverberates
Explicit connectives — also, further, therefore, yet
As Garner points out, good writers use a combination of these transitions. Here’s another passage from Vavilov, featuring a nice mix of transitions:
The doctrine was again [EXPLICIT CONNECTIVE] recently assessed by the English courts in Belhaj, where Mr. Belhaj and his wife alleged that English officials were complicit with the Libyan State in their illegal detention, abduction and removal to Libya in 2004. The court of first instance concluded that most of the claims were barred by the foreign act of state doctrine. On appeal, Lloyd Jones L.J. for the court cited with approval the modern description of the doctrine and its limitations set out in Yukos and held that the action could proceed in light of compelling public policy reasons ([2014] EWCA Civ 1394).
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As the conflicting judgments in Belhaj highlight [ECHO LINK], the attempt to house several unique concepts under the roof of the act of state doctrine in English jurisprudence has led to considerable confusion. Attempting to apply a doctrine which is largely defined by its limitations has also caused some confusion in Australia. In Habib v. Commonwealth of Australia, [2010] FCAFC 12, Jagot J. observed that the act of state doctrine has been described as “a common law principle of uncertain application” (para. 51 (AustLII)).
Similarly [EXPLICIT CONNECTIVE], in Moti v. The Queen, [2011] HCA 50, the court rejected the contention that the act of state doctrine jurisprudence established “a general and universally applicable rule that Australian courts may not be required (or do not have or may not exercise jurisdiction) to form a view about the lawfulness of conduct that occurred outside Australia by reference to foreign law” (para. 50 (AustLII)). The court noted that “the phrase ‘act of State’, must not be permitted to distract attention from the need to identify the issues that arise in each case at a more particular level than is achieved by applying a single, all-embracing formula” (para. 52).
The Canadian common law has grown from the same [POINTING WORDS] roots. As in England, the foundational cases concerning foreign act of state are Blad and Duke of Brunswick. But since then, whereas English jurisprudence continually reaffirmed and reconstructed the foreign act of state doctrine, Canadian law has developed its own approach to addressing the twin principles underlying the doctrine articulated in Buttes Gas: conflict of laws and judicial restraint. Both principles have developed separately in Canadian jurisprudence rather than as elements of an all-encompassing “act of state doctrine”. As such, in Canada, the principles underlying the act of state doctrine have been completely subsumed within this jurisprudence.
Need some more ideas for making connections between paragraphs? Here are some sample transition words and phrases:
To add
again
moreover
what’s more
finally
To compare
but
yet
whereas
even though
as with X, Y
however
by comparison
similarly
compared to
conversely
meanwhile
likewise
To expand on a point
namely
specifically
particularly
in fact
To give an example
for example
for instance
on this occasion
to illustrate
take the case of
To emphasize
in fact
certainly
indeed
To wrap up
as a result
in brief
summing up
to conclude
accordingly
in sum