Legal Writing
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Legal writing involves the analysis of
fact pattern A fact pattern or fact situation is a summary of the key facts of a particular legal case, presented without any associated discussion of their legal consequences. For example, at common law, "Murder is the killing of another human being with malic ...
s and presentation of arguments in documents such as legal memoranda and
briefs Briefs (or a brief) are a type of short, form-fitting Undergarment, underwear and swimsuit, swimwear, as opposed to styles where material extends down the thighs. Briefs have various different styles, usually with a waistband attached to fabric ...
. One form of legal writing involves drafting a balanced analysis of a legal problem or issue. Another form of legal writing is persuasive, and advocates in favor of a legal position. Another form legal writing involves drafting
legal instrument Legal instrument is a legal term of art that is used for any formally executed written document that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or ...
s, such as
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
s and
wills Wills may refer to: * Will (law) A will or testament is a legal document that expresses a person's (testator) wishes as to how their property ( estate) is to be distributed after their death and as to which person (executor) is to manage the pr ...
.


Distinguishing features


Authority

Legal writing places heavy reliance on authority. In most legal writing, the writer must back up assertions and statements with
citations A citation is a reference to a source. More precisely, a citation is an abbreviated alphanumeric expression embedded in the body of an intellectual work that denotes an entry in the bibliographic references section of the work for the purpose of ...
of authority. This is accomplished by a unique and complicated citation system, unlike that used in any other genre of writing. The standard methods for American legal citation are defined by two competing rule books: the ''
ALWD Citation Manual ''ALWD Guide to Legal Citation'', formerly ''ALWD Citation Manual'', is a style guide providing a legal citation system for the United States, compiled by the Association of Legal Writing Directors. Its first edition was published in 2000, unde ...
: A Professional System of Citation'' and ''The
Bluebook ''The Bluebook: A Uniform System of Citation'' is a style guide that prescribes the most widely used legal citation system in the United States. It is taught and used at a majority of U.S. law schools and is also used in a majority of federal ...
: A Uniform System of Citation''. Different methods may be used within the United States and in other nations.


Precedent

Legal writing values precedent, as distinct from authority. Precedent means the way things have been done before. For example, a lawyer who must prepare a
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
and who has prepared a similar contract before will often re-use, with limited changes, the old contract for the new occasion. Or a lawyer who has filed a successful
motion In physics, motion is the phenomenon in which an object changes its position with respect to time. Motion is mathematically described in terms of displacement, distance, velocity, acceleration, speed and frame of reference to an observer and mea ...
to dismiss a lawsuit may use the same or a very similar form of motion again in another case, and so on. Many lawyers use and re-use written documents in this way and call these re-usable documents ''templates'' or, less commonly, ''forms.''


Vocabulary

Legal writing extensively uses
technical terminology Jargon is the specialized terminology associated with a particular field or area of activity. Jargon is normally employed in a particular Context (language use), communicative context and may not be well understood outside that context. The conte ...
that can be categorised in four ways: # Specialized words and phrases unique to law, e.g., ''
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
'', ''
fee simple In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., perm ...
'', and ''
novation Novation, in contract law and business law, is the act of – # replacing an obligation to perform with another obligation; or # adding an obligation to perform; or # replacing a party to an agreement with a new party. In international law, no ...
''. # Ordinary words having different meanings in law, e.g., ''action'' (lawsuit), ''
consideration Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions. The court in ''Currie v Misa'' declared ...
'' (support for a promise), ''execute'' (to sign to effect), and ''
party A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often feature f ...
'' (a principal in a lawsuit). # Archaic vocabulary: legal writing employs many old words and phrases that were formerly quotidian language, but today exist mostly or only in law, dating from the 16th century; English examples are ''herein'', ''hereto'', ''hereby'', ''heretofore'', ''herewith'', ''whereby'', and ''wherefore'' (
pronominal adverbs A pronominal adverb is a type of adverb occurring in a number of Germanic languages, formed in replacement of a preposition and a pronoun by turning the former into a prepositional adverb and the latter into a locative adverb, and finally joini ...
); ''said'' and ''such'' (as adjectives). # Loan words and phrases from other languages: In English, this includes terms derived from French ('' estoppel'', '' laches'', and ''
voir dire (; often ; from an Anglo-Norman phrase meaning "to speak the truth") is a legal phrase for a variety of procedures connected with jury trials. It originally referred to an oath taken by jurors to tell the truth ( la, verum dicere). This term is ...
'') and
Latin Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
(''
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'', ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'', ''
prima facie ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
'', '' inter alia'', ''
mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'', ''
sub judice In law, ''sub judice'', Latin for "under a judge", means that a particular case or matter is under trial or being considered by a judge or court. The term may be used synonymously with "the present case" or "the case at bar" by some lawyers. I ...
'') and are not italicised as English legal language, as would be foreign words in mainstream English writing.


Formality

These features tend to make legal writing formal. This formality can take the form of long sentences, complex constructions, archaic and hyper-formal vocabulary, and a focus on content to the exclusion of reader needs. Some of this formality in legal writing is necessary and desirable, given the importance of some legal documents and the seriousness of the circumstances in which some legal documents are used. Yet not all formality in legal writing is justified. To the extent that formality produces opacity and imprecision, it is undesirable. To the extent that formality hinders reader comprehension, it is less desirable. In particular, when legal content must be conveyed to nonlawyers, formality should give way to clear communication. What is crucial in setting the level of formality in any legal document is assessing the needs and expectations of the audience. For example, an appellate brief to the highest court in a jurisdiction calls for a formal style—this shows proper respect for the court and for the legal matter at issue. An interoffice legal memorandum to a supervisor can probably be less formal—though not colloquial—because it is an in-house decision-making tool, not a court document. And an email message to a friend and client, updating the status of a legal matter, is appropriately informal. Transaction documents—legal drafting—fall on a similar continuum. A 150-page merger agreement between two large corporations, in which both sides are represented by counsel, will be highly formal—and should also be accurate, precise, and airtight (features not always compatible with high formality). A commercial lease for a small company using a small office space will likely be much shorter and will require less complexity, but may still be somewhat formal. But a proxy statement allowing the members of a neighborhood association to designate their voting preferences for the next board meeting ought to be as plain as can be. If informality aids that goal, it is justified. Many U.S. law schools teach legal writing in a way that acknowledges the technical complexity inherent in law and the justified formality that complexity often requires, but with an emphasis on clarity, simplicity, and directness. Yet many practicing lawyers, busy as they are with deadlines and heavy workloads, often resort to a template-based, outdated, hyperformal writing style in both analytical and transactional documents. This is understandable, but it sometimes unfortunately perpetuates an unnecessarily formal legal writing style. Recently a variety of tools have been produced to allow writers to automate core parts of legal writing. For example, automated tools may be used by transactional lawyers to check certain formalities while writing, and tools exist to help litigators verify citations and quotations to legal authority for motions and briefs.


Categories

Legal writing is of two, broad categories: (i) legal analysis and (ii) legal drafting. Legal analysis is two-fold: (1) predictive analysis, and (2) persuasive analysis. In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, in most
law school A law school (also known as a law centre or college of law) is an institution specializing in legal education, usually involved as part of a process for becoming a lawyer within a given jurisdiction. Law degrees Argentina In Argentina, ...
s students must learn legal writing; the courses focus on: (1) predictive analysis, i.e., an outcome-predicting memorandum (positive or negative) of a given action for the attorney's client; and (2) persuasive analysis, e.g., motions and
briefs Briefs (or a brief) are a type of short, form-fitting Undergarment, underwear and swimsuit, swimwear, as opposed to styles where material extends down the thighs. Briefs have various different styles, usually with a waistband attached to fabric ...
. Although not as widely taught in law schools, legal drafting courses exist; other types of legal writing concentrate upon writing appeals or on interdisciplinary aspects of persuasion.


Predictive legal analysis

The legal memorandum is the most common type of predictive legal analysis; it may include the client letter or legal opinion. The legal memorandum predicts the outcome of a legal question by analyzing the authorities governing the question and the relevant facts that gave rise to the legal question. It explains and applies the authorities in predicting an outcome, and ends with advice and recommendations. The legal memorandum also serves as record of the research done for a given legal question. Traditionally, and to meet the legal reader's expectations, it is formally organized and written.


Persuasive legal analysis

The persuasive document, a motion or a brief, attempts to persuade a deciding authority to favorably decide the dispute for the author's client. Motions and briefs are usually submitted to judges, but also to mediators, arbitrators, and others. In addition a persuasive letter may attempt to persuade the dispute's opposing party.
Persuasive writing Persuasive writing is any written communication with the intention to convince or influence readers to believe in an idea or opinion and to do an action. Many writings such as criticisms, reviews, reaction papers, editorials, proposals, advertise ...
is the most rhetorically stylized. So although a brief states the legal issues, describes authorities, and applies authorities to the question—as does a memorandum—the brief's application portion is framed as an argument. The author argues for one approach to resolving the legal matter and does not present a neutral analysis.


Legal drafting

Legal drafting creates binding legal text. It includes enacted law like statutes, rule and regulations; contracts (private and public); personal legal documents like wills and trusts; and public legal documents like notices and instructions. Legal drafting requires no legal authority citation and generally is written without a stylised voice.


Plagiarism

In writing an objective analysis or a persuasive document, including a memorandum or brief, lawyers write under the same
plagiarism Plagiarism is the fraudulent representation of another person's language, thoughts, ideas, or expressions as one's own original work.From the 1995 '' Random House Compact Unabridged Dictionary'': use or close imitation of the language and thought ...
rules applicable to most other writers, with additional ethical implications for presenting copied materials as original. Legal memoranda and briefs must properly attribute quotations and source authorities; yet, within a law office, a lawyer might borrow from other lawyers' texts without attribution, in using a well-phrased, successful argument made in a previous brief. Plagiarism is strictly prohibited in academic work, especially in
law review A law review or law journal is a scholarly journal or publication that focuses on legal issues. A law review is a type of legal periodical. Law reviews are a source of research, imbedded with analyzed and referenced legal topics; they also pro ...
articles, seminar papers, and similar writings intended to reflect the author's original thoughts. The drafting of legal documents such as contracts is different as, unlike in most other legal writing categories, it is common to use language and clauses that are derived from
form book A form book is a tool used by attorneys in the United States to aid in the filing of pleadings, motions and other legal documents with a court or similar decision-making body. A form book may be a bound volume or binder containing loose-leaf pages, ...
s, legal opinions and other documents without attribution. Lawyers use forms documents when drafting documents such as contracts, wills, and judgments. The key difference between using phrases or paragraphs from other legal documents, and copying in other contexts or copying the entire document, arises from the fact that lawyers are effectively drawing upon a common pool of clauses that they adjust and modify for their own purposes.


Plain language movement

The
Plain Language Movement Plain language is writing designed to ensure the reader understands as quickly, easily, and completely as possible. Plain language strives to be easy to read, understand, and use. It avoids Verbosity, verbose, convoluted language and jargon. In m ...
in legal writing involves an effort to avoid complex language and terminology in legal documents, to make legal writing more understandable and accessible. One of the goals of the movement is to reduce reliance on
terms of art Jargon is the specialized terminology associated with a particular field or area of activity. Jargon is normally employed in a particular communicative context and may not be well understood outside that context. The context is usually a particu ...
, words that have a specific meaning within the context of the law, but that may carry a different meaning in other contexts.


Legalese

''
Legalese Legal writing involves the analysis of fact patterns and presentation of arguments in documents such as legal memoranda and briefs. One form of legal writing involves drafting a balanced analysis of a legal problem or issue. Another form of legal ...
'' is an English term first used in 1914 for legal writing that is very difficult for laymen to read and understand, the implication being that this
abstruseness In philosophy, the terms obscurantism and obscurationism describe the anti-intellectual practices of deliberately presenting information in an abstruse and imprecise manner that limits further inquiry and understanding of a subject. There are two ...
is deliberate for excluding the legally untrained and to justify high fees. ''Legalese'', as a term, has been adopted in other languages. Legalese is characterized by long sentences, many modifying clauses, complex vocabulary, high abstraction, and insensitivity to the layman's need to understand the document's gist. Legalese arises most commonly in legal drafting, yet appears in both types of legal analysis. Some important points in the debate of "legalese" v. "plain language" as the continued standard for legal writing include: * Public comprehensibility: Legalese suffers from being less comprehensible to the general public than plain English, which can be important in both private (e.g., contracts) and public matters (e.g., laws, especially in democracies where the populace is seen as both responsible for and subject to the laws). * Resistance to ambiguity: Legalese may be particularly resistant to misinterpretation, be it incidental or deliberate, for two reasons: #Its long history of use provides a similarly extensive background of precedent tied to the language. This precedent, as discussed above, will be a strong determinant of how documents written in legalese will be interpreted. #The legalese language itself may be more precise when compared to plain English, having arisen from a need for such precision, among other things. * Coverage of contingencies: Legal writing faces a trade off in attempting to cover all possible contingencies while remaining reasonably brief. Legalese is characterized by a shift in priority towards the former of these concerns. For example, legalese commonly uses doublets and triplets of words (e.g., "null and void" and "dispute, controversy, or claim") which may appear redundant or unnecessary to laymen, but to a lawyer might reflect an important reference to distinct legal concepts. Plain-English advocates suggest that no document can possibly cover every contingency, and that lawyers should not attempt to encompass every contingency they can foresee. Rather, lawyers should only draft for the known, possible, reasonably expected contingencies.


See also

*
Academese Academese is a term referring to unnecessary jargon associated with the field of academia, particularly common in academic writing in humanities, and is contrasted with plain language. The term is often but not always pejorative, and occasionally c ...
*
Business speak Corporate jargon, variously known as corporate speak, corporate lingo, business speak, business jargon, management speak, workplace jargon, corporatese or commercialese, is the jargon often used in large corporations, bureaucracies, and similar wo ...
*
Plain English Plain English (or layman's terms) are groups of words that are to be clear and easy to know. It usually avoids the use of rare words and uncommon euphemisms to explain the subject. Plain English wording is intended to be suitable for almost anyone, ...
*
Plain language Plain language is writing designed to ensure the reader understands as quickly, easily, and completely as possible. Plain language strives to be easy to read, understand, and use. It avoids verbose, convoluted language and jargon. In many countr ...
*
Legal Writing Institute The Legal Writing Institute (LWI) is a nonprofit organization dedicated to improving legal communication, building the discipline of legal writing, and improving the status of legal writing faculty across the United States. The Institute currently h ...


References


External links

*
International Legal English
', written by Amy Krois-Lindner and TransLegal, is a coursebook for Cambridge ESOL’s International Legal English Certificate. * Bryan Garner’s ''Dictionary of Modern Legal Usage'' (Oxford University Press) is regarded as an authoritative guide to legal language, and is aimed at the practising lawyer. * Peter Butt and Richard Castle’s ''Modern Legal Drafting'' is a reference book aimed at the practising lawyer. *

' (2004) b

and published by Routledge. * B.M.Gandhi's ''Legal Language, Legal Writing & General English'' . * ''New ELS: English for Law Students'' written by Maria Fraddosio (Naples, Edizioni Giuridiche Simone, 2008) is a course book for Italian University Students. * ''The Scribes Journal of Legal Writing'', created by Scribes: The American Society of Legal Writers. *

' (2006) b

and published by Oxford University Press. * For a humorous perspective on legal writing, see Daniel R. White's ''Still The Official Lawyer's Handbook'' (NY: Plume/Penguin 1991), Chapter 13, pp. 171-176, especially its notorious riff on how a lawyer might edit -- and torture -- the phrase "The sky is blue" (pp. 172-174). Similarly, see Professor Fred Rodell's "Goodbye to Law Reviews," whose opening lines contain the classic statement of the problem: "There are two things wrong with almost all legal writing. One is its style. The other is its content." (This and other articles are collected in ''Trials and Tribulations—An Anthology of Appealing Legal Humor'', edited by Daniel R. White (NY: Plume/Penguin 1991), p. 241.)
Exercises for Legal Writers II: Wordiness

Exercises for Legal Writers I: Active and Passive Sentences and Writing with Verbs
{{DEFAULTSORT:Legal Writing English language Jargon Legal communication
Writing Writing is a medium of human communication which involves the representation of a language through a system of physically Epigraphy, inscribed, Printing press, mechanically transferred, or Word processor, digitally represented Symbols (semiot ...