UNIVERSITY OF AUCKLAND

Faculty of Law
Legal Writing Guide

LEGAL METHOD AND STYLE

The following is an introduction to legal method and style, using a specific worked example of a tutorial
essay question.
A

Tutorial Essay Question

Assume that you are given the following tutorial essay question in Torts:

Petes Pub is the local tavern of Eketahuna. The owners of the tavern maintain toilets for the
convenience of their patrons. In July 2011, an unidentified patron entered the mens toilet and scrawled
on the toilet wall, amongst all the other graffiti, this message: For a good time, call Elaine 7654321. I
thought she was great and am sure she could satisfy many others. In September, Ken, a regular patron
of the tavern, went to utilise the toilet facilities. Ken was extremely intoxicated after consuming over a
dozen pints of beer. Although he had seen the message before, on this occasion he read it quite
carefully. Ken then phoned the number and Elaine, a local school teacher, answered. Ken explained
where he has obtained her number and asked Elaine if he could engage the services which the graffiti
suggested she was offering. Shocked, Elaine refused and then hung up the phone.
The next day, Elaine phoned Petes Pub, advised them of the situation and requested them to remove
the graffiti from the wall immediately. The manager responded by laughing and said Dont be silly. Its
just a joke. Disgruntled, Elaine has now initiated proceedings against Petes Pub for defamation. Petes
Pub has come to you for legal advice on the possibility of Elaine succeeding in her claim and the
damages the pub might incur. Assume that honest opinion is not an available defence in this case.

B
1

The Research Process

Know thy library!

It is simply not possible to conduct legal research efficiently and effectively unless you know how to
access legal information.
The home page of the Davis Law Library at the University of Auckland,
http://www.library.auckland.ac.nz/subject-guides/law/home.htm (at 21 April 2012), provides
detailed information on:

The collection in the Davis Law Library. The collection uses the Moys classification system.
Information sheets listing the classification numbers and book locations are available both at the
Information Desk in the Davis Law Library and online. There is also signage on the shelves to assist
in locating reclassified sources.

The legal resources, particularly online resources, which are available in the Davis Law Library.
These are grouped into:

New Zealand legal resources (cases, legislation, commentaries and encyclopaedias, journal
articles, internet resources):
<http://www.library.auckland.ac.nz/subject-guides/law/davisweb/newzealand.htm> (at 27
April 2012)

Law journal articles (indexing databases, full text online journals):

<http://www.library.auckland.ac.nz/subject-guides/law/davisweb/journals.htm> (at 27
April 2012)

Other jurisdictions (Australia, Asia-Pacific, Canada, EU, UN, USA, UK):

<http://www.library.auckland.ac.nz/subject-guides/law/davisweb/jurisdictions.htm> (at 27
April 2012)

Online legal references (encyclopaedias, dictionaries, legal abbreviations, citation/style

guides):
<http://www.library.auckland.ac.nz/subject-guides/law/davisweb/law_online_legal.htm>
(at 27 April 2012)

Databases and course guides (Voyager, databases, course guides):

<http://www.library.auckland.ac.nz/subject-guides/law/davisweb/guides.htm> (at 27 April
2012)

Area of law by topic:

<http://www.library.auckland.ac.nz/subject-guides/law/davisweb/law_area.htm>
April 2012)

(at

27

Preliminary reading

Read the question through several times very carefully. Ask yourself: what exactly am I being required
to do? Often this is explicitly stated at the end of the question, as is the case here. You are being asked
to advise Petes Pub on the merits of Elaines defamation claim and the damages that might be awarded.
You are not being asked to address other causes of action such as negligence, malicious falsehood,
invasion of privacy or intentional infliction of emotional distress. Confine your research accordingly.
Note also the final sentence of the problem. You are told not to consider the defence of honest opinion
for the purposes of this essay. Do not research this issue or discuss it. Too often students miss such vital
information in a question and waste valuable time researching and writing about something for which
they will be given no credit.
In sum, read the question very carefully, follow instructions closely, and focus only on what the
question requires.

Identify the relevant facts

Highlight and separate out the material facts that you think will be relevant to the legal issues. If you do
not do so, you may overlook an important fact, or focus your research on a less relevant set of facts.
Separating out the relevant facts helps to ensure that your research and analysis is more structured,
streamlined and efficient.
Analyze the facts meticulously and objectively. Do not generate any extra facts, or re-interpret or shoehorn the facts into your particular view of the case.
If there are facts that might have been relevant or useful but are not mentioned in the question, you
should assume that you are not expected to address that particular issue at length (or at all).
However, if you believe that you have not been given facts in the question that are crucial to a central
legal issue which must be resolved, identify the additional information you require and how it would
affect your legal opinion.
Here, the material facts might be:

Message: For a good time, call Elaine 7654321. I thought she was great and am sure she could
satisfy many others.

Written on toilet wall by unknown patron (not by Petes Pub employees).

Message acted on by extremely drunk patron of Petes Pub.

Petes Pub treats it as a joke and refuses to remove the message.

Identify the legal issues

Depending on the level of your existing knowledge and the question, you may already be able to
identify the main issues and prioritize them on a preliminary basis, based on how significantly they
affect the answer to the question. Be careful, however, not to treat this preliminary analysis as set in
stone you should always reassess your preliminary view of the issues once you have completed more
research.
If you are not at all sure what the legal issue is and the question does not provide any clues, try to
extract relevant legal concepts or keywords from the material facts tort, false statement, reputation,
innuendo, privacy, hurt feelings etc. Then check the index and table of contents of the leading textbooks
in the area to see if you can identify the relevant legal issues and narrow down your field of enquiry.
Alternatively, using your keywords, run a subject or full text search in the relevant text/commentaries,
legal periodicals and case databases, to see if you can identify relevant texts, commentaries, journal
articles or cases that are relevant to the question.
5

Research!

Once you have identified the relevant facts and legal issues, you can start on the research process itself:
finding, collecting and analyzing legal information.
Be methodical plan your research before you start. A hit and miss, random approach to legal
research wastes time and is unlikely to produce impressive results.
Keep meticulous, accurate and full notes as you go. Make sure that you note down all the relevant
citation details you do not want to have to come back and find everything again just to complete
your footnotes!
Collecting photocopies or passively reading large amounts of text does not amount to research. You
need actively to analyze and record your views on the materials as you go. Think critically about what
you are reading. Be alert for inconsistencies and ambiguities. As you read and analyze each new piece
of information, ask yourself: How does this fit into what I have already found? What does it add to my

existing knowledge? Does it reveal new issues to be examined? How does it help me answer the
question I have been set? Where is it likely to fit into my answer?
Unless you know a lot about the subject already, it makes sense to start with the relevant secondary
sources (texts and journal articles), and then move on to primary sources (cases and statutes) once you
have narrowed down the field of enquiry.
(a) Consult the leading textbooks, commentaries or reports in the area. A good textbook or commentary
should provide you with a lucid summary of the relevant legal principles, identify issues that are
uncertain or controversial (which will often be precisely the issues you are being asked to consider!) and
provide you with references to other primary or secondary sources through the footnotes. Your lecturer
may have provided you with a list of the leading textbooks in the area. If not, do a subject or keyword
search on Voyager.
Unless you are conducting historical research or there are special reasons for doing so, do not consult
old editions of textbooks always use the most up-to-date material available.
You may wish to begin with a general introductory text or commentary. Once you are more familiar
with the issues, however, you should consult more specialized and theoretical texts (if available) to gain
a deeper, more critical understanding. In our example, an obvious place to start would be the latest
edition of Todds The Law of Torts in New Zealand and Burrows and Burrows & Cheer Media Law in New
Zealand. The next step might be to refer to, for example, Gilloolys The Law of Defamation in Australia and
New Zealand for a more detailed analysis.
Carefully note down further relevant sources discussed in the text and footnotes. It goes without saying
that you have to then go and find and read and analyze those sources in turn. If you cannot find a source,
do not cite it as if you have. Copying other peoples footnotes is nothing less than intellectual fraud, and
it is very easily spotted by seasoned lecturers!
As the law is stated as at the date of publication of the textbook or commentary, and you cannot simply
rely on textbook authors to have found and discussed all of the relevant sources for you, you also have
to check and update your list of sources gleaned from textbook footnotes.
(b) Journal articles are an essential component of the research process:

They often provide more up-to-date information than textbooks.

They usually focus in more detail on specialized topics and may therefore assist in lifting your
analysis from general overview to in-depth analysis.

Textbooks can often be overly descriptive, or adopt a neutral or conservative approach in their
discussion of legal principles. A good article, by comparison, involves the statement of a thesis
(argument), a critical, theoretical analysis of that thesis, and a conclusion. The quality of argument,
in-depth analysis and focus of a good journal article are also the hallmarks of a good essay answer.

As discussed above, you can glean relevant journal article references from the footnotes of the textbooks
you have consulted. Then check and update for other journal articles which the textbook authors may not
have cited, by doing a keyword search on an indexing database such as the Index to Legal Periodicals
and LegalTrac: see <http://www.library.auckland.ac.nz/subject-guides/law/davisweb/articles.htm>
(at 27 April 2012).
(c) From your analysis of the leading texts and journal articles, you will have discovered references to
any relevant legislation. In the case of our worked example, the Defamation Act 1992 is relevant. You can
use the traditional paper statutes and statutory regulations, or access the electronic version of this
material in Brookers Online (WestlawNZ) or LexisNexis NZ. One of the most important advantages of
the electronic databases is that each section of the statute has a link that automatically brings up recent
case law on the point.
Search the Contents section of the Act (or do a full text search of the Act on the electronic database).
The Contents lists the Parts of the Act and the subject headings of each section.

In our example, certain sections of the Defamation Act seem potentially relevant. For example, section
28 of the Act addresses the issue of punitive damages. Remember that the essay question asked you to
discuss damages.
(d) Case law. Reading cases is an essential component of legal research. You must cite authorities to
support the arguments you make in your essay. Studying cases is one of the best ways to develop your
ability to write a well-reasoned legal opinion. Cases can provide:

The standard approach to analyzing a particular type of legal problem.

Definitive interpretations of legislation.

An exposition of the historical development of the law and current law.

Legal and policy arguments relevant to your research.

For New Zealand case law, do a keyword search on Briefcase/Viewcase and Linxplus (they often turn
up different results!) to update case references you have already found in textbooks, and to check that
you have all relevant references. New Zealand cases are also available on other databases and websites
and in the traditional paper reports. For case law from other jurisdictions, see
<http://www.library.auckland.ac.nz/subject-guides/law/davisweb/jurisdictions.htm> (at 27 April
2012).
6

Writing the essay

At some stage, you will have to stop researching and start writing. Students often have difficulty
knowing when they have done enough research. If you have followed a methodical research process, it
should be easier to know when you are ready. When you find that references to the same cases and
journal articles you have already read and noted up keep appearing, you seem to be reading the same
thing over and over again, or find yourself spending hours chasing some minor peripheral point, the
law of diminishing returns probably means that it is time to get down to writing the essay.
Do not underestimate how long it will take you to write the essay. Rather leave more than enough time
to plan, write, proofread and polish your essay. If you discover in the course of writing that your
research on one or two minor points was not as thorough as you thought, you will then still have time
to go back and look at those specific issues again.
The object of writing a legal opinion or essay is to communicate often complex concepts. This requires
that you pay attention to your audience, and that you lead your readers carefully from what they can be
taken to know already to the new information and ideas that you wish to communicate to them.
You will not be able to communicate a concept properly unless you understand it first. There is
therefore no substitute for having thoroughly researched and thought about what you are going to
write before you start to write it.
When writing your legal opinion or essay:

Ensure that you express yourself concisely and coherently.

Avoid excessively long sentences.

Use the active rather than the passive voice as far as possible (eg The Court held thatrather
than It was held by the Court that or The plaintiff brought a claim rather than A claim
was brought by the plaintiff ).

Avoid stock phrases and style tics (overuse of clearly, obviously, of course is likely to
infuriate your examiner if the matter were really that obvious, it is unlikely that it would have
been set as an opinion topic), clichs, generalizations and excessive use of jargon.

Avoid contractions (eg, use it is instead of its; cannot instead of cant), informal language, slang and
humour.

Use apostrophes correctly do not use s for plurals and never use its in legal writing: it is either
an impermissible contraction for it is, or it is being incorrectly used instead of the possessive
pronoun its (ie, belonging to it).

Avoid upsetting or angering your audience with racist, sexist or gendered language. Gendered
language can easily be avoided by gender-neutral descriptions or titles (but do not do violence to
the etymology of words there is no such thing as an Ombudsperson, for example), by using she
and he and his or her, by pluralising the whole sentence to avoid the use of his or hers (but
do not slide ungrammatically from singular to plural in the same sentence), or by balancing the
gender of examples given within the essay as a whole.

In respect of general questions of style, grammar and syntax, consult the latest edition of Strunk
and Whites The Elements of Style, Fowlers Modern English Usage, Buxtons Punc Rocks: Foundation
Stone for Precise Puncuation and Garners The Elements of Legal Style. Spelling should conform to the
New Zealand Oxford Dictionary. Do not use American spelling except in quotations and US case
names.

(a)

Essay plan

Design a basic essay plan that sets out the overall structure of your analysis. The structure of your essay
should be logical. If your research has been through and methodical, this should not be too difficult.
For example:

1
2
3
4
5
6
(b)

Introduction
Are the words defamatory?
Petes Pubs liability as a publisher
Defences
Damages
Conclusion
Developing the body of the essay

Many students find this the most difficult part of the task. Despite having a thorough knowledge of the
subject, putting pen to paper can be difficult. To ease this burden, it might help to follow this basic
methodology (sometimes referred to as ILAC) when addressing each issue in turn:
1
2
3
4

State the legal issue. (I)

Discuss and analyze the relevant law. (L)
Apply the law to the given facts. (A)
Reach a conclusion on the issue. (C)

Consider the following as a possible answer for parts 2 and 3 of the essay. Note that this is not a model
answer, but it does address the main issues and gives you an idea of how you might go about
answering such a question.

Are the words defamatory?

1

Perhaps the most useful starting point here are the words of McGregor J in Collerton v Maclean where
2
he summarizes the leading definitions of what constitutes a defamatory statement:
A defamatory statement is a statement which is calculated to lower the plaintiff in the estimation of right-thinking
men, [sic] or cause him to be shunned or avoided or expose him to hatred, contempt or ridicule, or one which is
calculated to convey an imputation disparaging to him in his business or office or calling.
3

Further assistance can be derived from the Court of Appeal in New Zealand Magazines Ltd v Hadlee
where Blanchard J stated the relevant principles of law to be used when determining whether words are
4
capable of bearing a defamatory meaning:
a)

The test is objective.

b)

The reasonable person reading the publication is one of ordinary intelligence, general knowledge
and experience of worldly affairs.

c)

The courts are not concerned with the literal meaning of the words or the meaning that might be
extracted on close analysis by a lawyer or academic linguist.

d)

The meaning necessarily includes inferences as the reasonable person can read between the
lines.

e)

The courts will reject meanings that are the product of some strained or forced interpretation.

f)

The words complained of must be read in context.

5

The focus is therefore on the ordinary reasonable reader reading the words in context. In considering
the words in context all of the surrounding circumstances must be considered. The words complained of
clearly convey a defamatory sense to the ordinary person. They suggest that Elaine is an unchaste
person who indulges in indiscriminate amatory ventures. Elaines reputation is likely to be lowered in the
eyes of right-thinking people generally.
However, would a right-thinking person actually think less of Elaine, given the nature of the medium by
which the words are expressed? Although, on the one hand, it might be argued that a right-thinking
person is unlikely to give credence to graffiti in public toilets, the better view is that a right-thinking
person would think less of someone whose name and address could be found scribbled on the walls of
a public toilet. Indeed, the very context in which the words are found would probably add to the hurt to
Elaines reputation, and add to damages.
3 Petes Pubs liability as a publisher
6

Publication is the making known of defamatory matter to someone other than the person defamed. The
words on the toilet wall were not written by the owner or an employee of Petes Pub, but this does not
7
preclude Petes Pub from being held liable. In Webb v Bloch the Court said: All who are in any degree
accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be
considered as principals in the act of publication .
Here, the toilet walls are the means by which the defamatory words are communicated to those
members of the public who use the toilets, in the same way that a newspaper is the means by which a
defendants words can be communicated to the public.
Positive misconduct is not necessary as a failure to act can result in liability. So, for example, posters
pasted on the walls of bus shelters by unknown persons can constitute a publication by those
8
responsible for the shelters.
Because Petes Pub is responsible for the maintenance of the walls and has been expressly informed of
the offending publication it is prima facie liable as the publisher.
___________________
1
2
3
4
5
6
7
8

(c)

Collerton v Maclean [1962] NZLR 1045 (HC).

At 1046.
New Zealand Magazines Ltd v Hadlee (No 2) [2005] NZAR 621.
At 625.
Who is not avid for scandal (Lewis v Daily Telegraph Ltd [1964] AC 234 (HL) at 260 and 268) and is not unduly
suspicious (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (HL) at 1261.
Pullman v Hill [1891] 1 QB 524 (CA).
Webb v Bloch (1928) 41 CLR 331.
Urbanchich v Drummoyne Municipal Council [1991] Aust Torts R 69 (NSWSC) at 190.

The conclusion

Always end your essay with a conclusion that directly addresses the question you were asked to
answer. The conclusion must draw together and summarize the essential results of your arguments and
analysis in the body of your essay. The conclusion therefore provides the ultimate answer to the
question and resolution of the problem. It should neither include a paraphrase of your introduction, nor
introduce wholly new material.

Try not to sit on the fence in your conclusion. If you have thoroughly and critically analyzed the
issues, you should be able to reach a clear and considered conclusion, even if there is no simple right
or wrong answer.
(d)

After the conclusion

Put your essay away for a few days. Then read it again, very carefully and critically. Is the essay
succinctly expressed, clear and logical? Do the arguments in it sound convincing? Does it adopt the
correct tone for its audience? Read it aloud does it flow well? Read it to long-suffering friends and
relatives who know nothing about law, or have them read it. Can they follow your arguments?
Proofread for spelling, grammar and style mistakes, and check all legal references for compliance with
the citation rules in this Guide (see below). Legal writing, like all other forms of professional writing, is
subject to a set of rules and standards that are not optional. How you set out your writing is just as
important as what you say. You will lose marks for writing that does not meet professional standards of
spelling, grammar, style and citation.