In Legal Writing, Form is Substance

I am following up to my mention of the dichotomy between form and substance in my first post. Substance generally refers to content and form to the style of expressing content. Especially in conversation, we sometimes slack off on finding the perfect word or tone and rely on our audience to “get the gist” of what we are trying to say or “know what we mean” despite our sloppy form.  We sacrifice form for substance. The sacrifice is sometimes appropriate and even preferred, particularly in those contexts where we have immediate feedback. But in writing, and especially in legal writing, sacrificing form sacrifices substance. The dichotomy between form and substance is almost nonexistent. It is sometimes easy to forget this simply by virtue of how we are taught legal writing. With a focus on paragraphs, sentence structure, and so forth, legal writing is often taught with little reference to substance. One consequence of this is that it leads to an assumption that form is not itself substance.

But meaning is gleaned from a punctuation mark, choosing one synonym over another, large-scale organization of an entire piece, and everything in between.  Confusion, disagreement, and, ultimately, litigation thrive off of alternate unintended meanings — of contracts, statutes or precedent — created or exposed by sloppy form. Form determines how substance will be interpreted and, therefore, its meaning.

Ultimately, form’s goal is to clearly and accurately convey substance so that it is interpreted as its intended meaning. Of course, there is no easy or straight answer as to how to do this, in part because each writing has its own context and purpose and each writer their own personality. Perhaps it includes following all grammatical rules, avoiding passive voice, and writing short sentences. But, unfortunately, clearly and accurately conveying substance it not as simple as following basic principles. And none of these, or even all of them together, is the complete recipe for good form. Rather, it takes detailed awareness, deliberate choices, and critical editing. And practice.