Legal writing

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]

Contents
Distinguishing features
Authority
Precedent
Vocabulary
Formality
Categories Books on legal writing at a law library
Predictive legal analysis
Persuasive legal analysis
Legal drafting
Plagiarism
Plain language movement
Legalese
See also
References
External links

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
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

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.

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.[16]
See also
Business speak
Plain English
Plain language
Walter F. George School of Law
Legal Writing Institute

References
1. School, Harvard Law. "Legal Research and Writing | Harvard Law School" (https://hls.harvard.e
du/dept/opia/what-is-public-interest-law/public-interest-work-types/legal-writing/). Harvard Law
School. Retrieved 2018-10-31.
2. LII Staff (2007-08-06). "Legal writing" (https://www.law.cornell.edu/wex/legal_writing). LII / Legal
Information Institute. Retrieved 2018-10-31.
3. "Legal Citation Guides/Authorities (U.S. Based)" (https://web.archive.org/web/2018022615202
7/https://guides.library.harvard.edu/c.php?g=309930&p=2070190). Harvard Law School
Library. 24 August 2017. Archived from the original (https://guides.library.harvard.edu/c.php?g=
309930&p=2070190) on 2018-02-26. Retrieved 25 February 2018.
4. "Citation Guides from Foreign Jurisdictions" (https://web.archive.org/web/20180226151940/http
s://guides.library.harvard.edu/c.php?g=309930&p=2070191). Harvard Law School Library. 24
August 2017. Archived from the original (https://guides.library.harvard.edu/c.php?g=309930&p=
2070191) on 2018-02-26. Retrieved 25 February 2018.
5. "Citations and References: Let the computer do it" (https://libguides.southernct.edu/c.php?g=17
9069&p=1176746). 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" (http
s://www.expertlaw.com/library/law-practice-management/lawyers-dont-plagiarize-content-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" (https://scholarship.law.missouri.edu/cgi/vie
wcontent.cgi?httpsredir=1&article=1464&context=facpubs). North Carolina Law Review. 90 (3):
920. Retrieved 9 April 2018.
8. Dunnewold, Mary (1 September 2011). "Plagiarism: Proceed with Caution" (https://abaforlawst
udents.com/2011/09/01/plagiarism-proceed-caution/). ABA For Law Students. American Bar
Association. Retrieved 9 April 2018.
9. Adams, Kenneth A. (23 August 2006). "Copyright and the Contract Drafter" (http://www.adamsd
rafting.com/downloads/Copyright-NYLJ-8.23.06.pdf) (PDF). New York Law Journal. Retrieved
9 April 2018.
10. "Bryan Garner on Plain English" (https://www.plainlanguage.gov/about/definitions/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?" (http://www.lawf
oundation.net.au/ljf/app/&id=/2FD34F71BE2A0155CA25714C001739DA). Law and Justice
Foundation. Retrieved 25 February 2018.
12. "legalese" (https://www.etymonline.com/word/legalese). Online Etymological Dictionary.
Douglas Harper. Retrieved 25 February 2018.
13. "Legalese" (http://www.babylon-software.com/definition/legalese/French). Babylon (French).
Babylon Software Ltd. Retrieved 25 February 2018.
14. See, e.g., "estimación para el posterior deslinde en trámite de ejecución de sentencia" (https://
www.proz.com/kudoz/spanish_to_english/law_contracts/1551838-estimaci%C3%B3n_para_el
_posterior_deslinde_en_tr%C3%A1mite_de_ejecuci%C3%B3n_de_sentencia.html).
ProZ.com. Retrieved 25 February 2018.
15. Lundin, Leigh (2009-12-31). "Buzzwords—Bang * Splat!" (http://www.criminalbrief.com/?p=108
66). Criminal Brief. Retrieved 2010-02-19.
16. 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 (http://www.cambridge.org/elt/legalenglish/), 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 (https://web.archive.org/web/20021201115558/http://www.forum-legal.com/docu
base.htm#cavendish) (2004) by Rupert Haigh (https://archive.is/20071009140444/http://www.fo
rum-legal.com/people.htm) 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 (https://web.archive.org/web/2002120111555
8/http://www.forum-legal.com/docubase.htm) (2006) by Rupert Haigh (https://archive.is/200710
09140444/http://www.forum-legal.com/people.htm) 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 (http://ssrn.com/abstract=1704045)
Exercises for Legal Writers I: Active and Passive Sentences and Writing with Verbs (http://ssrn.
com/abstract=1715702)

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