1.3 Know your purpose in writing
When you write a document addressed to a particular audience, you will have a particular purpose. For example, when studying criminal law, you may be asked to play the role of a newly qualified solicitor writing a memorandum to one of the partners of your firm, informing them of the strength of the prosecution case against your client who has been charged with the criminal offence of use of a drug of dependence. How you write this memorandum will be different from how you, as a representative of a lobby group, would write a submission to the government urging the creation of supervised drug-injecting centres.
While there are various specific purposes in writing documents, there are, generally speaking, two basic kinds of purpose you might have when writing a document: informing your audience about something or persuading your audience to do something. It is possible, and indeed quite common, for a document to do both, but they are still distinct purposes.
1.3.1 Informative writing
The goal of informative writing is to give the reader information about some particular subject matter. The task is simply to provide that information so that the reader can gain an understanding of the subject matter. Neutrality and objectivity are usually important features of such writing; it is not designed to convince the reader of a particular view, just to inform.
Very often in law school (and in legal contexts more broadly), you will be asked to inform your audience about a particular text or document, such as a judge’s decision in a legal case, a statutory provision, a law reform inquiry report, or an academic journal article or book. Informing your audience about what was said in the ‘target’ document can be described as an expository or interpretive task.
Expository writing
Expository writing is a particular kind of informative writing which expounds – or lays out – another piece of writing. It must be accurate and fair to that other writer or document and enable the audience to have an accurate and reliable understanding of that other document without having to read it themselves.
Key generic questions to address when planning your expository writing include:
- What is the purpose of the writer I am to expound?
- What question or issue is their document addressing?
- Who is the intended audience of the writer?
- What is the structure of the document, and how does that structure fit its purpose?
- What positions does the writer take on the relevant issues?
- What arguments does the writer put forward for their position?
- What is central or essential in the document and what is peripheral or inessential?
Importantly, in expository writing, you do not critique, judge or evaluate what the author wrote or give your own views on the topic. It is similar to a ‘comprehension’ exercise, but with an important difference. You are not just showing how much you know. Instead, you are creating a document that enables someone else to understand the text you are expounding. This is an essential legal skill that sounds simple but can be quite challenging.
For example, imagine you are a first-year solicitor in a large law firm and one of the partners has asked you to write for her a two-page memorandum summarising yesterday’s 86-page High Court decision on insider trading. She does not want a document that shows her that you understand the case. She wants a short document that will enable her to understand the essence of the case in three minutes.
TIP: READ THREE TIMES
Read or skim the document you are expounding at least three times. The first time, just read it to get an idea of what you are working with. On the second reading, highlight key words or passages and make some notes as you go. It is not until the third reading that you should really start to think about how you can expound the contents.
Once you have read the document three times, you will be in a better position to ask yourself the key question your exposition will need to answer: what exactly does my reader need to know from the original document?
When reading the original document, do not just look for key words to restate in your piece. Quoting a text is not expounding it. You need to explain what the document means, not reproduce the best bits of it. Sometimes selective quotation of small passages may be appropriate, but do not overdo it. The best expository writing will have minimal quotations. Some may have none at all. Ultimately, if you capture the essence of the original document and put it in your own words in a way that helps your reader to understand it, you will have drafted a good exposition.
1.3.2 Persuasive writing
In contrast, persuasive writing, as the name suggests, seeks to persuade or convince the reader to agree with what the writer is saying. The writer wants to convince the audience of something and is, therefore, not taking a neutral stance in relation to the subject matter. There is often some issue to be decided or a problem to be solved, and the writer is seeking to persuade the audience that the best or preferred way of deciding the issue or solving the problem is what the writer is putting forward as the answer. This means that the writer must take a clear position, rather than neutrally describing positions that may be put forward by others.
As you can see, this is different to informative/expository writing and is sometimes described as critical or argumentative writing. ‘Critical’ in this context does not mean that the writing simply seeks to say negative things about something. Rather, it is more a matter of a careful, reasoned analysis of the strengths and weaknesses of some position in order to reach a decision about it. What the writer seeks to do is persuade the reader that the analysis and argument put forward justify the decision or judgment expressed.
Similarly, ‘argumentative’ here does not mean quarrelsome, belligerent or rude. It means that the writing puts forward logical arguments, or reasons, for its conclusions. In this context, an argument is a set of statements that are logically related such that the earlier statements (the premises) provide logical support for the concluding statement. The support may make the conclusion certain (in the case of deductive arguments) or make the conclusion more likely to be true (in the case of inductive arguments). (See Chapter 7 for more on arguments.)
TIP: USE ARGUMENT AND EVIDENCE, NOT EMOTIONS
In law, the means of persuasion should be reasoned argument and evidence, and not appeals to prejudice or emotional manipulation. Plenty of other kinds of persuasive writing (such as advertising or political election speeches) can adopt emotional rhetoric, but persuasive writing in law should only ever be reasoned and supported with evidence.
While it is true that to persuade one must also inform, there is a clear distinction between the goals of informative writing versus persuasive writing. If you identify the type of writing you need to do at the outset and apply the principles discussed in this section, your task will be much easier.
