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Legal Writing

(September 9, 2018)

Tabucanon and Mockor: Legal Writing Chapter 1 – Introduction

“The language of law must not be foreign to the ears of those who are to obey it.”
- Learned Hand, judge and legal philosopher

“The lawyer’s greatest weapon is clarity, and its whetstone in succinctness.”


- Judge Prettyman

I. LEGAL WRITING
- Is the kind of writing that lawyers, law professors, judges, and other workers in the field
of law use to express legal rights, obligations, and opinions.

Types: informative, persuasive, functional


a. Informative writing – it conveys information on an issue involving the law or a person’s
legal rights.
 Goal: Objective communication by predicting the law’s “path” vis-à-vis a
set of facts regardless of who is involved
 Examples: memoranda, letters to clients, statement of facts in brief

b. Persuasive writing – - it aims to convince the reader to accept a certain viewpoint


 Writer argues for a particular side or perspective
 Writer is expected to use available legal tools to support his thesis
 Writer’s thesis may be pieces of evidence offered in court, sections of the
law, decisions of the SC, and opinions of legal authorites on a subject
 Examples: academic legal writing, motions, pleadings and argument
section of the brief

c. Functional writing – it is one written for a specific use or result in law


 Specific format, ceremony, or legal requirement may be present in this
type of writing
 This type of writing does not need to be analytical nor persuasive
 This type of writing needs to be accurate and complete, yet
understandable
 Examples: deeds, wills, contracts, draft of laws and ordinances that bind
those involved

II. TWO BROAD CATEGORIES - legal analysis, legal drafting

A. Legal Analysis – predictive or persuasive


1) Predictive Analysis – predictive document belongs to the informative type of legal
writing
 It deals with a legal question in three ways:
a) Analysis – facts and law are analyzed. The facts are then applied
to the law (or jurisprudence), and they are interpreted according
to the meaning of the law
b) Prediction – the outcome of the legal question is predicted,
whether it is positive or negative
c) Recommendation – writer gives his advice or recommendation,
based on the facts and law, as to the best line of action under the
circumstances
o Example: opinion memorandum written for
senior partners, legal opinion letter for clients
[the opinion may be for or against the question
the client has raised]

2) Persuasive Analysis – persuasive document attempts to persuade a judge, arbiter,


or any other deciding authority to decide case in favor of the writer’s client
o Example: pleadings, motions, and briefs

B. Legal Drafting – writer creates a legally binding document, or uses an already available
template found in Legal Forms handbook
 Functional type of legal writing
 Examples: contracts, deeds, wills and testaments for private person, laws,
regulation and ordinances which bind the public in general
 This requires no legal authority
 Legal forms deal with legal drafting

III. DEFINITION OF TERMS


A. Memorandum - means “to be remembered”, a paper that explains and summarized
specific points of law for a judge, for another attorney or for a client
B. Pleading – formal presentation of claims and defenses by parties to a lawsuit
 specific papers by which parties to a lawsuit present their allegations in
proper form [complaint of plaintiff and the answer of a defendant] plus
any additional responses to those papers that are authorized by law
C. Motion – written or oral application made to a court or judge to obtain a ruling or order
directing that some act be done in favor of the applicant
 Applicant is known as the moving party or the movant
 Example: A motion to dismiss asks the courts the court to dismiss an
action, A motion for summary judgement, also known as a motion for
judgement solely on the facts set forth in the pleadings
D. Brief – written document that an attorney draws up for a party in a lawsuit or by a party
himself or herself appearing pro se that concisely states the ff:
1) Issue of lawsuit
2) Facts that bring the parties to court
3) Relevant laws that can affect the subject of the dispute
4) Arguments that explain how the law applies to the particular facts so that the case
will be decided in the party’s favor
E. Appellate brief – it is a writing that must be filed with an appellate court so that court
may evaluate whether the decision of the lower court should be reversed because of some
error or impropriety that occurred during the trial
 Essential elements:
a) Statement of the issue presented for review
b) Summary of how pertinent laws affect the facts
c) Statement of the relief being requested
 Appellee’s brief -> argue = lower court acted properly in its judgement &
request its affirmance
 Appellant’s brief -> attempt to convince court = reverse or vacate the LC
judgement because it acted improperly
Pollman, Stinson and Pollman: Legal Writing - Chapter 2

What you need to know about transitioning to Legal Writing

1) Legal writing often takes more time than other kinds of writing you may have done
before
- LW requires more than describing, summarizing, or categorizing
- LW requires synthesizing, analyzing, and sometimes persuading
- The process of writing helps us think, therefore you need to start writing early enough to
let writing help you think through the problem
2) Good legal writing is concise
- You should never vary from the specified formatting to make your text fit within the limit
- Concise but still say everything that needs to be said
3) Legal readers expect your writing to be formal
- ALWAYS formal tone
- Avoid contractions
- Avoid first person
- Use last names
- Don’t omit articles
4) Minimize the use of quotations, but quote key statutory language
- Determine what a particular case holds and express that holding in your own words
- If court uses wonderfully helpful language, quote it. But make that the exception when
discussing cases
- When discussing statues, quoting relevant language is required
 STATUTORY LANGUAGE is significant because the words the legislature
chose affect the meaning of the law.
5) Avoid “elegant variation,” unnecessary legalese and other distracting stylistic choices
- LW has a subject matter that is often complex, and it is important to express ideas as
clearly and simply as possible
6) Use past tense to discuss the client’s facts as well as the facts and holdings of other
cases
- Legal writers generally use present tense when stating a rule of law
7) Courts don’t “feel,” “think,” or “believe.” Courts “hold,” “state,” “find,” “reason,”
“conclude,” etc.
- Judges act objectively

How to make the transition to legal writing

Step 1: Start working on your assignment immediately after you receive it, not days or weeks later
Step 2: While writing, think about quoting key statutory language, being concise, and using a formal tone
Step 3: Rewrite – again and again and again
Step 4: Review your writing to ensure you’ve used the appropriate writing style, tense, and word choice