The Legal Writing Process: From Client Instructions to a Finished Draft

The legal writing process should begin with the decision the client or decision-maker must make, not with a blank precedent. Define the objective, collect and test the relevant record, build an outline for the document required, draft from the issues, then revise separately for substance and presentation. This sequence prevents a familiar failure: producing polished language before anyone has confirmed the question, the governing source or the facts on which the advice can safely rest. It also makes the writer’s assumptions visible before they become expensive.

Convert instructions into a defined legal task

Client instructions are often a starting point rather than a complete brief. They may identify an urgent problem, describe events from one perspective or attach documents without explaining which result matters commercially. The first task is to turn that material into a defined assignment. Ask what decision is required, who will use the document, what outcome is sought, what deadline applies and whether the document will advise, negotiate, commence proceedings, respond to a claim or record an agreement.

Write down the issue in practical terms. “Should the company make this payment now?” is not the same task as “Is the invoice enforceable?” The first may require advice on risk, leverage, cash-flow consequences and a proposed response; the second may require analysis of a contract, performance and available remedies. A good initial question narrows research without prematurely deciding the answer.

At this stage, identify the limits of the retainer and the working assumptions. If the instruction concerns a regulated transaction, a land instrument, employment process or court filing, establish whether there are specialist rules or a procedural gateway before drafting begins. Do not treat an incomplete account as a settled factual record merely because it arrived in writing.

Build a reliable working record

Gather the materials that can prove or disprove the important propositions: signed versions of the relevant instrument, correspondence, notices, board or statutory records, filed court material, receipts, registry searches and witness accounts where appropriate. Establish chronology early. A disputed date, missing attachment or unverified authority can change both the legal answer and the immediate action.

Sort the record into four working categories: established facts, allegations, documents requiring authentication or explanation, and missing information. This is not administrative tidiness. It prevents a draft from adopting a client’s characterisation as though it were evidence, and it makes follow-up requests precise. Instead of asking generally for “all documents”, the writer can request the executed agreement, the notice of breach, proof of delivery and the correspondence responding to it.

Research should follow the record and the issue. Start with the current primary source—Constitution, statute, rules, regulation or contract—then identify binding and relevant decisions. Check that the text and authorities are current before relying on them. Secondary commentary can help locate a point, but it should not replace the operative source. Keep citations, links and short notes as research proceeds; reconstructing them from memory during final review is slow and unreliable.

Choose an outline that fits the document

An outline is a reasoning tool, not a decorative table of contents. It should reflect the reader’s route through the problem. A legal opinion may move from question, short answer, facts, law, analysis, risk and recommendation. A pleading will require its own procedural form and material facts. A contract should follow the commercial arrangement and allocate obligations, risk, timing and remedies. Submissions should identify issues, applicable authority, application to the record and the orders sought.

Before drafting full prose, test whether each proposed section earns its place. Does it answer a question the reader will have? Does it contain a material fact, legal proposition or action? If two sections do the same work, combine them. If an essential condition, relief or qualification has nowhere to appear, the outline is incomplete. This early test is much cheaper than reorganising a long draft after the language has been polished.

Use headings that describe the issue rather than headings that merely announce a topic. “Whether the notice complied with the contractual service clause” tells the reader more than “Notice”. In client advice, a short preliminary answer can orient the reader; in a court document, the applicable rules and practice may determine the permitted structure. Form should serve the document’s legal function.

Draft from the issue outward

Draft the core reasoning while the research trail and factual questions are visible. For each point, state the proposition, identify the authority or contractual source, apply the material facts and explain the consequence. This pattern guards against both unsupported conclusions and long quotations that leave the reader to perform the analysis.

Separate facts from inferences, and separate legal certainty from professional judgment. A writer may say that a clause appears to require written notice, then explain why the available evidence of service is incomplete. That is clearer than treating the whole conclusion as either certain or speculative. Where alternatives exist, identify the factor that would move the outcome from one route to another.

Draft in the voice appropriate to the audience. Advice to a board should make the commercial decision and risk intelligible. Correspondence should preserve the client’s position without needless provocation. Court documents should comply with their governing form and confine themselves to what that document properly does. Plain language is compatible with legal precision when defined terms, conditions and qualifications are used carefully.

Revise in separate substantive and editorial passes

Do not treat proofreading as the whole revision process. The substantive pass asks whether the document answers the defined question, uses the correct and current law, accounts for the material record, addresses adverse points and recommends an action that follows from the analysis. Check every authority, quotation, cross-reference, amount, date and remedy against its source. If the law or facts have changed during drafting, revisit the conclusion rather than merely updating a citation.

The editorial pass asks a different set of questions: can the reader see the answer quickly; are headings useful; are defined terms used consistently; is the chronology coherent; is any paragraph doing duplicate work; and are qualifications placed where the reader needs them? Read the draft once as a sceptical recipient. That often reveals an unproved assumption, an undefined abbreviation or a missing attachment more effectively than line editing alone.

Finally, complete the delivery checks: privilege and confidentiality, names and capacities, execution or signature requirements, service method, filing format, annexures, version control and internal approvals. In Kenyan proceedings, the applicable rules and any current practice directions must be checked for the particular court and document. A well-reasoned draft can still fail its purpose if it is sent, signed, served or filed incorrectly.

Official source: Constitution of Kenya, 2010 (Kenya Law).