Author: Rudraksh Pathak, I Year of B.A. LL.B (Hons.) From Maharashtra National Law University Nagpur.
Abstract
The above research discusses persuasive legal writing as a means of expression with regards to a specific genre, i.e. Memorandum of Understanding. MoU in itself is such an elaborate document that it uses different elements of language, and different ways of persuasion in order to meet the objectives charted out inside the MoU signed between two parties.
This process of drafting a MoU with persuasive legal means is a complex process yet very simple, rationalistic and practical with an amalgamation of interests put forward by both the parties. There is a give and take kind of relationship in a MoU.
Persuasive legal writing is used as a means to get the other party agreed, as per the requirements and wishes of the client. But during this process it is equally important to keep certain conditions in your mind. Persuasive writing gathers relevance based upon these conditions/ facets / features.
Therefore, it is important that one is aware of its audience (with a broader perspective), hand picking the essence of the problem and using a legal methodology of research rather than just employing an academic, curious or scholarly brain on the research.
Research in this context is expected to be holistic and all pervasive in order to get to the crux of this issue.
Persuasive writing requires you to reflect on how you view a problem or situation, and sometimes more importantly how your clients view her problem or situation.
But this persuasion should not be completely driven by articulate language, rather more focus should be given to the Object, Ratio Decidendi, and what both the parties actually want. In short, content should be given preference but with the presence of language to exhibit its objectives in a decorated and formalized manner.
Key Words Genre, Legal Writing, Memorandum of Understanding, Persuasive writing, Ratio Decidendi
Introduction
Persuasive legal writing in itself is a domain unlike other genres. Because, other genres or types of texts are independent bodies within the subject of legal language with their independent relevance, but persuasive legal writing is a tool for making any document or submission relevant. Generally, an individual faces a tendency to struggle with formulation of specific words in order to present any legal document such as MoU. But in this scenario a legal mind is to be employed in the process, in which one should find the thoughts popping up in the head of the author and express it, forgetting about the language used.
The utmost objective of Persuasive legal writing is not to make a text decorative, whereas to make its terms and conditions crystal clear. So, any kind of ambiguities could be removed from the MoU or any other document over which the two parties have agreed upon.
Be it any document MoU, Contract or Appeal, they have a proper structure that is to be employed. By our words, our presentation, our approach towards the document, we aim to persuade the other party to enter into that agreement.
Persuasion is making someone feel your idea is fundamentally, yea, primordially, right. This is Ba Theory of Persuasive writing. Ba Theory says, make the reader curl up contentedly with your ideas by getting rid of bad writing habits that make the reader grouchy, then enrich your writing to make your idea feel good.
The above concept clearly simplifies that by persuasive writing, be it in legal context or in any other field of academia, you present your fundamental understanding of the genre or piece of writing in such a manner that it appeals to the rational thought process of any other party. Then you can say that you are fundamentally right or your foundations are right for a MoU.
MoU being an informal legal document without many legal complications is just an agreement over the terms and conditions set amongst the two or more parties. But its objectives should be designed in a legally persuasive manner.
In a proposal, we aim to motivate management into action; in a position paper, to inspire a response or further investigation; in a legal analytical brief, to win a judge's ruling on our behalf; in a business plan, to secure funding; in an admissions essay, to gain acceptance into a university pro- gram; in an editorial, to persuade our readership into embracing or rejecting a public policy or issue. However, we also need to think about for whom we must strengthen, create, or reverse an opinion. And in doing so, we want to ensure that we address these readers' concerns related to the issue.
Basically the research on the above topic would be dealing with the persuasive elements of a legal document with specific reference to Memorandum of Understanding. Because the document in itself is so complete that it could further pave the way for getting a better understanding of this persuasive element.
I specifically chose Persuasive legal writing in context to MoU; because MoU is the most simplistic version of any legal document which too much extent is informal in nature. Apart from that the persuasive elements in it are much more realistic than others because it is a document that specifically deals with the objectives, terms and conditions vividly, ignoring the other legal formalities unlike some other legal documents.
Deliberation over Persuasive Legal Writing (On the basis of its facets)
In law-and-motion and appellate practice, we don’t practice legal writing. We practice persuasive legal writing. With every brief, every motion, every opposition we file, we are trying to get the judge to do something for us: to reverse a judgment; to grant a motion; to exclude evidence. To persuade the judge to act in our favor.
It is a tool to convince the reader with your point of view, that could be elaborate, articulate, or following other means of persuasion, but is always complemented by a quality objective of that write up. Without it, an avid legal audience would easily point out certain flaws in one’s points that are chipped in that document or in any other written format.
It is particularly used in order to execute certain motives which are backed by the interests of clients or backed by the convincing power of a writer towards its audience. As this subject of persuasive legal writing it is so vast in itself that, it is used in majority types of texts and documents. Because the utmost objective of the author is to convince the audience into believing in certain principle or thought in the legal field of scholars, academicians, jurists and students of the legal field or fields concerned with that legal issue.
The facets which actually describe persuasive legal writing as a topic are mentioned below-
Know Your Audience- The reader of your persuasive writing – your brief, motion, or opposition – is (for our purposes) two primary things: (1) intelligent but ignorant; and (2) incredibly busy.
Intelligent but ignorant- This is the audience which is quite rational, and intellectual in their approach towards any legal text, but they are not aware about the issue or legal scenario. So it becomes the responsibility of a persuasive legal writer, to ingrain that fact or thought in these bright brains. They can be jurists, scholars and academicians. Sometimes they may even have expertise in the subject concerned but have not dealt with it in a precise frame like the one who has presented by using his means of persuasion.
Incredibly Busy- It is a part of common sense that, even when a judge is dealing with multiple matters in a day he/ she tends to be busy. So one’s persuasive legal text can be the game changer which differentiates itself from the monotonous presentations of the case. Therefore, this means of persuasive legal writing can further facilitate the convincing power of one’s argument.
Understand the Essence of the Problem- It is very important to be aware about all the possible scenarios when one’s trying to convince the reader about his/her school of thought. If one is using persuasive legal means for a bright audience, they should be ready for all kinds of logic and rationalities that they are going to use as a tool for countering one’ s argument. For that, personalized examples, removal of unnecessary words, choosing one’s language and words very carefully, using some trusted sources for backing one’s argument, giving precise propositions, etc., are very important in one’s legal document. This understanding of the essence of the problem is also called the Lawyer's Way of Research. In this, the legal mind goes to the origin of thoughts, excavates the roots; in order to clear certain pre conceptualized assumptions.
The easiest thing for the reader to do is to become distracted from, or disinterested in, your papers. Accordingly, your papers cannot be confusing. Or ambiguous. Or aggravating. If your writing gives the reader any reason to switch his or her attention from your papers, you can bet that he or she will do so.
Try to ensure Absolute Credibility of the Reader-
It is very important to ensure that one is not giving any reason to the reader to become suspicious about believing in your thought process or school of thought. Because, It is difficult to gain the trust of one’s readers. But by making silly mistakes or by one’s overreach towards the issue, one can be the progenitor of suspicion in the minds of these curious readers. It is even an accepted concept that prior research is important in order to excavate the roots before dealing with any problem. Therefore, if the writer lacks in excavating these roots, it could shake the credibility of the reader and spoil his diligent efforts of legal persuasion altogether. Because the problem is that the reader sometimes even considers the absence of evidence as the evidence of absence in legal academia.
Analyze the General Perspective, Before molding it as per your Convenience-
This is a factor which can be considered as a must, before executing one’s dexterity in regards to persuasive legal writing. An excellent writer always finds out certain ways to somehow convince his/ her audience, but before that he/ she practices an in-depth analysis upon the general perspective regarding that issue.
Even in courts, the party tries to convince the court with his legal persuasion, after understanding, what is the general belief of the jurists, scholars and other intelligentsia regarding that issue. So that the certain loopholes or flaws or other dominant raison d’être that can be used to make your stand more convincing in front of your audience.
Legally Persuasive Salient Features of a MoU
A Memorandum of Understanding is also called a Gentlemen's Agreement. They are a set of guidelines that governs two parties, while working towards a common line of action. A MOU is simpler and often a less complex document when compared to normal contracts. When two or more parties agree to work towards a common objective, without a legally binding contract, an MoU is created. An MoU is not usually legally binding. In the case of Jyoti Brothers vs. Shree Durga Mining Co the Calcutta High Court held that a contract to enter into a contract is bad and is not valid from a legal standpoint of view. Contrarily, in the case of Jai Beverages Pvt. Ltd. v. State of Jammu and Kashmir and Ors the Supreme Court held that if an MOU is in a formal shape and if the parties benefit from acting in accordance with the terms listed out in the MOU, it can be considered as a legally binding agreement. MOUs are governed under the Indian Contract Act, 1872 and are enforced under the Specific Reliefs Act, 1963.
It has certain features which guide its structure, purpose and necessity and make it an informal legal agreement. The MoU should necessarily deliberate upon some of these features while forming an agreement between the parties. Those elements are as follows-
Scope of the Agreement- Role of all third parties and other agencies involved in the transaction should be decided by the parties. All the exclusions and inclusions in relation to the partnership should be stated to avoid uncertainties.
Parties to the Agreement- A MoU should clearly identify the two or more parties to the agreement. There shouldn’t be any kind of ambiguity regarding this aspect. Because, if we are confused about the parties itself, then it shakes the very motive of the agreement and shows the lack of sincerity towards making this MoU effective.
Rationale behind Signing the MoU/ Objectives - The objectives or the purpose behind signing this MoU should be distinctly visible even from the outline of this draft. It deals with the overall intention of the parties, for what arrangements the parties are instrumental, steps designed by them in order to reach their mutual goal for which the MoU was signed in the first place and you suggest certain measures which could make this agreement more smooth and effective.
Time Period- There is a particular period for which the MoU is signed between the parties. There is a commencement date and an expiry date of that MoU unless stated otherwise. Adherence to these dates is very important for MoU signed, being relevant in the eyes of the parties. If the dates are not followed by the parties, then it can defeat the very purpose of signing this document.
Plan of Action- Equally important is to function upon a plan of action agreed upon by both the parties. There are certain actions which are fixed by the medium of Memorandum of Understanding. These actions should be properly followed by the parties in order to seek reciprocity in the adherence towards the plan of action. This plan of action can include all kinds of scientific inquiries, deep analysis, sharing of certain resources so as to get access and aid in the better functioning of both the organizations. Other MoUs are also signed with wide ranging purposes.
Confidentiality amongst the Parties- The privacy regarding the deal set between the parties should be strictly adhered to. There are some sensitive domains upon which MoUs are signed upon. So the security regarding privacy is a must. Some issues such as classified military information, intellectual property or other secrets should be kept covert from the access of third parties.
The confidentiality obligations herein will not apply to information in the public domain; information in the possession of the receiving party prior to the disclosure of the information; information which is independently developed by the receiving party; information required to be released by law; and information which is rightfully received by the receiving party from third parties without any breach of confidentiality obligation.
Terms and Conditions- There are certain terms and conditions upon which any MoU is signed. These conditions are reviewed regularly as per the change in circumstances. These T & C set a stage for the commencement of the MoU, the moment it is signed by the parties. The validity of MoU is also decided under this genre, by deciding to what extent the transaction should take place, and within what time period.
Use of Persuasive Legal Writing in a MoU; an Analysis
The preliminary statement sets the mood for an offensive argument. The challenge of responding to a writing? to an appellant's brief, for example ? is not to appear defensive. To avoid sounding defensive, do not repeat your opponent's position followed by your response. Repetition reinforces. Assert your idea positively, negating your opponent's by implication.
In a MoU one has to be very specific and clear about what one desires from the other party/ parties. For that, it is important to intercept the approach of the other party, so that one can play his/ her cards accordingly. If they are mild then you can follow an aggressive approach in charting out your demands while drafting a MoU, whereas on the other hand if they themselves are veterans in that game, then one has to follow a very balanced approach.
This certainty in one’s approach can only be ensured by the legally persuasive mode of communication via writing or in oral version. Persuasive legal writing contemplates on the demands one can seek through that draft and employs all its hands on formation of an understandable, beneficial yet acceptable draft. In short, a person’s forthcoming or defensive stand is driven by the legally persuasive mode of writing considering a variety of factors, demands and the level of desperation of the other party.
While forming Objectives, Commitments, and Terms and Agreement the party has to be very careful about the language used, the extent of legal persuasion and the demands put forward by all the parties.
In Objectives- Objectives particularly deal with the analysis, research and identification of steps, suitable measures, and the parameters to seek each other’s support in the context of a MoU. All these factors are the heartbeats of the MoU drafted. Legal Persuasion as a tool becomes extremely important in this draft, because this is the very first section which is important enough that readers will consider it worth reading. Because in a shorter format, it paints the picture that what all is jotted down in this informal document signed between the parties. Skills of legal persuasion are used to capture all the ideas that are agreed upon, by the parties and what they seek to achieve. Then a persuasive document is framed which is elaborate yet short and sweet, avoiding any kind of verbosity and to the point.
In Commitments This is the part which facilitates the different types of access provided by the parties to each other. Sometimes, this section includes, research team, volunteers, sharing of documents, resource material, etc. This section needs to be very precise and should circumscribe the demands of all the parties in one go. Though, involvement of legal persuasion in this section is limited but very subtle. Generally the persuasion skills employed are for the purpose of extracting the maximum from a few pages. The reader can get the entire necessity or purpose of framing this draft, by looking at the commitments done, between the parties.
Terms and Agreement They place certain boundations on the parties which the parties have to adhere to. If there is any kind of lackadaisical attitude by the parties, it could even render the MoU void. Though it is an informal document and is not legally actionable at first but both the parties need to comply with the conditions set. Terms of any MoU make this document more relevant in the eyes of both the parties. Before, performing their share of business, they have a clear outline charted in front of them regarding the performance of duties. Persuasive legal writing as a tool plays a very crucial role in this domain by setting the terms/ rules in such an order that it can convince both the parties without overreaching its authority and at the same time mustering the compliance by the parties.
Conclusion
Persuasive legal writing in itself is a very wide domain with various utilitarian aspects not only in terms of a single document, but almost in each and every document having the legal caliber or authority of compliance. In terms of MoU specifically, a scent of these persuasive elements can be found in the aroma of all its features, elements and its basic structure. Particularly objectives, commitments, and Terms and Agreement are some of the core features of MoU which require the in depth usage of persuasive legal writing. Because, these features are the heartbeats of a Memorandum of Understanding, which make the usage of persuasive legal writing a necessity. Sometimes, the documents are ingenious in nature, behind which the persuasive elements have a key role to play.
References
Ted Pelletier, Persuasive Legal Writing Starts With Knowing The Reader, Plaintiff Magazine, Accessed on October 30, 2021.
Miriam Kass, The Ba Theory of Persuasive Writing, American Bar Association, Jstor, Pg no. 50, Accessed on 29th October, 2021.