Legal writing

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Books on legal writing at a law library

Legal writing involves the analysis of fact
patterns and presentation of arguments
in documents such as legal memoranda
and briefs[1]. 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 instruments, such as
contracts and wills.[2]

Distinguishing features
Authority
Legal writing places heavy reliance on
authority. In most legal writing, the writer
must back up assertions and statements
with citations 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: A
Professional System of Citation and The
Bluebook: A Uniform System of Citation.
Different methods may be used within
the United States and in other
nations.[3][4]

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 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 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 that can be categorised in
four ways:

1. Specialized words and phrases unique

to law, e.g., tort, fee simple, and novation.
2. Ordinary words having different
meanings in law, e.g., action (lawsuit),
consideration (support for a promise),
execute (to sign to effect), and party (a
principal in a lawsuit).
3. 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); said and
such (as adjectives).
4. Loan words and phrases from other
languages: In English, this includes terms
derived from French (estoppel, laches,
and voir dire) and Latin (certiorari, habeas
corpus, prima facie, inter alia, mens rea,
sub judice) 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.[5]

Categories of legal writing

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, in most law schools
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. 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 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 rules
applicable to most other writers,[6] with
additional ethical implications for
presenting copied materials as original.[7]
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
articles, seminar papers, and similar
writings intended to reflect the author's
original thoughts.[8]

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 books, 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.[9]

Plain language movement

The Plain Language Movement in legal
writing involves an effort to avoid
complex language and terminology in
legal documents, to make legal writing
more understandable and accessible.[10]
One of the goals of the movement is to
reduce reliance on terms of art, words
that have a specific meaning within the
context of the law, but that may carry a
different meaning in other contexts.[11]
Legalese

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Legalese is an English term first used in

1914[12] for legal writing that is very
difficult for laymen to read and
understand, the implication being that
this abstruseness is deliberate for
excluding the legally untrained and to
justify high fees. Legalese, as a term, has
been adopted in other languages.[13][14]
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: Perhaps

most obviously, legalese suffers from
being less comprehensible to the
general public than plain English, which
can be particularly 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).[15]
Resistance to ambiguity: Legalese may
be particularly resistant to
misinterpretation, be it incidental or
deliberate, for two reasons:
1. 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.
2. The legalese language itself may be
more precise when compared to plain
English, having arisen from a need for
such precision, among other things.
Joseph Kimble, a modern plain-English
expert and advocate, rejects the claim
that legalese is less ambiguous in The
Great Myth that Plain Language is not
Precise.[16] Kimble says legalese often
contains so many convoluted
constructions and circumlocutions that it
is more ambiguous than plain English.

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.[17]

See also
Business speak
 Plain English
Plain language
List of plain English words and phrases
Walter F. George School of Law

References
1. School, Harvard Law. "Legal Research
and Writing | Harvard Law School" .
Harvard Law School. Retrieved
2018-10-31.
2. Staff, LII (2007-08-06). "Legal writing" .
LII / Legal Information Institute. Retrieved
2018-10-31.
3. "Legal Citation Guides/Authorities (U.S.
Based)" . Harvard Law School Library. 24
August 2017. Archived from the original
on 2018-02-26. Retrieved 25 February
2018.
4. "Citation Guides from Foreign
Jurisdictions" . Harvard Law School
Library. 24 August 2017. Archived from
the original on 2018-02-26. Retrieved
25 February 2018.
5. "Citations and References: Let the
computer do it" . Hilton C. Buley Library.
Southern Connecticut State University.
Retrieved 25 February 2018.
6. Larson, Aaron (21 August 2016).
"Lawyers: Don't Plagiarize Content For
Your Websites" . ExpertLaw.com.
Retrieved 9 April 2018.
7. Strickland, Cooper J. (1 March 2012).
"The Dark Side of Unattributed Copying
and the Ethical Implications of Plagiarism
in the Legal Profession" . North Carolina
Law Review. 90 (3): 920. Retrieved 9 April
2018.
8. Dunnewold, Mary (1 September 2011).
"Plagiarism: Proceed with Caution" . ABA
For Law Students. American Bar
Association. Retrieved 9 April 2018.
9. Adams, Kenneth A. (23 August 2006).
"Copyright and the Contract Drafter"
(PDF). New York Law Journal. Retrieved
9 April 2018.
10. "Bryan Garner on Plain English" .
plainlanguage.gov. Plain Language Action
and Information Network. Retrieved
25 February 2018.
11. Butt, Peter (12 September 2002).
"What is plain language law and why use
it?" . Law and Justice Foundation.
Retrieved 25 February 2018.
12. "legalese" . Online Etymological
Dictionary. Douglas Harper. Retrieved
25 February 2018.
13. "Legalese" . Babylon (French).
Babylon Software Ltd. Retrieved
25 February 2018.
14. See, e.g., "estimación para el posterior
deslinde en trámite de ejecución de
sentencia" . ProZ.com. Retrieved
25 February 2018.
15. Lundin, Leigh (2009-12-31).
"Buzzwords—Bang * Splat!" . Criminal
Brief. Retrieved 2010-02-19.
16. 7 Scribes J. Leg. Writing 109 (1998–
2000)
17. Darmstadter, Howard (2008). Hereof,
Thereof, and Everywhereof: A Contrarian
Guide to Legal Drafting (2 ed.). Chicago,
Illinois 60610: American Bar Association.
ISBN 978-1-59031-9772.

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.
Legal English (2004) by Rupert Haigh
and published by Routledge.
B.M.Gandhi's Legal Language, Legal
Writing & General English ISBN 978-
9351451228.
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.
The Oxford Handbook of Legal
Correspondence (2006) by Rupert
Haigh 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

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