Legal Writing I

Ponder on this:

Why study legal

writing?
 Why Study Legal Writing &
Study Skills?

"Words are of central importance to the lawyer because

they are, in a very particular way, the tools of his trade.“
( Glanville Williams, Language and the Law )
The law school writing program allows students to
practice the roles of advisor, advocate, and drafter, and
it provides students with the "tools of the trade" they will
need to represent their clients in practice.
• Understand the Importance of
Developing Legal Writing Skills
!!!!!!!!
 WRITING SKILLS AS "TOOLS OF
THE TRADE”

Lawyers are professional writers.

To become good lawyers, law students must learn how to
produce professional quality documents.
 What is Legal Writing:

 Legal writing involves the drafting of all kinds of legal

documents
The skill of legal writing includes more than the ability to
write well
Legal writing involves learning other interrelated skills.
A lawyer does not write a brief or draft a contract without
using skills other than the skill of legal writing.
 I. WRITING AND A LAWYER’S
ROLES
( The 3 P’s ) :
Lawyers write many kinds of documents — court papers,
letters, legal instruments, and internal working
documents for the law firm. As different as these
documents are from each other, they all fall into one of
three categories defined by the lawyer’s primary role
when writing them: (1) planning and preventive
writing, (2) predictive writing, and (3) persuasive
writing
Identify the primary lawyering role called
for in each of the following situations:
• 1. A client (a widower) has been diagnosed with a fatal form of
cancer.
• a. The client asks a lawyer to draft a will and trust to protect his
assets for his children.
• b. The client asks whether there is a procedure by which he can
designate a foster family to care for his children after his death and
whether it would be wise for him to do so.
• c. The client asks the lawyer to file a lawsuit seeking recovery
against his employer for exposure to carcinogens in the workplace.
 A LAWYER’S WRITING ROLES

• Planning and Preventive Writing

• Predictive Writing
• Persuasive Writing
 Consider this:

What it means to say that a legal

document is well written ?
 What is Good Legal Writing

It is clear and concise.

It is well organized, with a seamless flow.
 The issue is identified at the outset.
It is interesting to read.
 What is Bad Legal Writing?

The issue not clearly identified. At its worst, the reader has no idea
what the writer wants to say.
 It lacks order and organization. The reader becomes confused, or
worse, stops reading altogether.
 In the case of longer documents, sub-headings are few or fail to
guide the reader.
 There is an undue use of jargon and acronyms. These are either not
explained or are only poorly explained.
The style is dull, turgid, plodding.
 Ideas repeat, and turns of phrase are overused.
 Sentences and paragraphs are too long and complex.
 The document is replete with errors in grammar,
punctuation, and style.
 Citations are improper and inconsistent.
 The Benefits of Writing Well (Why
bother to master good writing skills?)
 There several reasons. These include:
 Good writing makes a good first impression. It reflects well on your
client, your firm, and you.
 A well-crafted written argument reinforces oral advocacy.
 Cogent writing inspires confidence. It suggests that you are
competent generally and the reader should trust your opinion.
 Ideally, you will persuade your audience of the merits of your
position. A well-written piece will not be the cause of any failure to
persuade.
It may enable the audience to overlook substantive
deficiencies in your position.
A lawyer’s writing should announce to the world that the
lawyer is a professional: the client who receives a
document from the lawyer should be proud to have
retained that lawyer; the opposing counsel who receives
one should respect the lawyer who wrote it; and the judge
who receives one should feel comfortable relying upon the
lawyer’s skill and integrity.
 It contains signposts for the reader.
The style is suited to the audience.
 It uses proper grammar and punctuation.
 It provides an introduction and a conclusion
 Practice Makes Perfect:

• Keep in mind the best way to

learn to write well is to read a
lot, and write often.
 CLARITY
 The chief hallmark of good legal writing is clarity. As Justice Benjamin
Cardozo put it, ―there can be little doubt that in matters of literary
style the sovereign virtue for the judge is clearness.
 Bryan Garner puts the point, ―A lawyer should keep in mind that the
purpose of communication is to communicate, and this can‘t be done if
the reader or listener doesn‘t understand the words used.
 Clarity, therefore, is the most basic quality of good legal writing. For it
is only when writing is clear that the reader can accurately
comprehend the writer‘s message and use that information to facilitate
professional decision – making.
 What makes writing clear?
• Clarity requires proper (i.e., conventional) grammar and
punctuation.
• While there is not a lot of discussion as to why writers
need to follow conventional grammatical rules in order to
be clear, it is apparent that language has to have certain
agreed-upon rules to govern its basic functioning.
Otherwise, there would be no possibility of shared
meaning, and therefore no possibility of language itself.
• The greater the deviation from the core rules of grammar, syntax, and
semantics, the more difficult it will be for the reader to understand the
writer’s message.
• The conventional rules have a fair degree of flexibility, and so the writer
still has to make choices with regard to sentence structure and word
usage from within the universe of acceptable conventions. How then does
a skillful writer do this in order to maximize clarity? The most common
prescription in the literature is to use ordinary words and simple
sentence structures. Richard Wydick, for example, states in his classic
book Plain English for Lawyers that ―good legal writing is plain English.
The most common prescription in the literature is to use
ordinary words and simple sentence structures.
Richard Wydick, for example, states in his classic book
Plain English for Lawyers that ―good legal writing is plain
English.
• Judge Cardozo‘s description of the facts in his famous
opinion in Palsgraf v. Long Island Railroad Co. provides a
good example of this type of simple, concrete writing.
There, Cardozo summarizes the complicated events that
led to the plaintiff‘s injuries in a lucid and succinct
fashion:
 Plaintiff was standing on a platform of defendant‘s railroad
after buying a ticket to go to Rockaway Beach. A train
stopped at the station, bound for another place. Two men
ran forward to catch it. One of the men reached the
platform of the car without mishap, though the train was
already moving. The other man, carrying a package, jumped
aboard the car, but seemed unsteady as if about to fall. A
guard on the car, who had held the door open, reached
forward to help him in, and another guard on the platform
pushed him from behind In this act, the package was
dislodged, and fell upon the rails.
 It was a package of small size, about fifteen inches long, and was covered by
a newspaper. In fact it contained fireworks, but there was nothing in its
appearance to give notice of its contents. The fireworks when they fell
exploded. The shock of the explosion threw down some scales at the other end
of the platform, many feet away. The scales struck the plaintiff, causing
injuries for which she sues. Even though this factual scenario is fairly
complicated, Cardozo makes it easy to follow. The reader needs to read the
paragraph only once to understand what happened and to gain a clear idea of
what caused the plaintiff‘s injuries. Cardozo accomplishes clarity by using
ordinary language and a series of simple sentences
• Even though this factual scenario is fairly complicated,
Cardozo makes it easy to follow. The reader needs to read
the paragraph only once to understand what happened
and to gain a clear idea of what caused the plaintiff‘s
injuries.
• Cardozo accomplishes clarity by using ordinary language
and a series of simple sentences.
 NOTE: ( Plain English
Movement)
• The legal-writing community now widely accepts the view
that writers should adopt a ―plain style of writing in
order to maximize clarity.
• When you use distinctive technical or legal terms,
consider whether the terms add any value beyond their
ordinary language equivalents. If not, use the ordinary
term.
• Also, eliminating unnecessary words and phrases from
sentences that may impede the reader‘s comprehension.
Sometimes referred to as ―clutter, promotes clarity.
( other factors will be considered in due course)
 Examples of Legal jargon
translated in plain English:

cause of action = set of facts that allows one person to

pursue a legal claim against another
• conveyance = transfer
• forthwith= immediately
• hereinin = this document/letter
• hereinafter = subsequently referred to as
• on the grounds of = because
• prima facie = on its face
• pursuant to = in accordance with
• subsequent = following / after
 Recap:

• use of conventional grammar

• simple sentence structure
• (Appropriately) plain language advances clarity.
 Good Legal Writing Is Concise:
• In other words it is efficient. Concise writing conveys the
writer‘s points succinctly, without superfluous words, and
with an appropriate level of detail.
• What constitutes the appropriate level of detail for any
given document depends on the context.
• Often, it is simply not possible to explain a complex idea
with the same degree of economy as one can express a
simple idea.
• A concise piece that makes its point efficiently and with an
appropriate level of detail does not waste the reader‘s
time and takes full advantage of this limited window of
opportunity.
• Conciseness may not be essential to all types of writing,
but it is essential in the context of legal writing because
the ―reader of legal writing has no time to spare and
either will resent inflated verbiage or will simply refuse to
read it.
• Concise writing, as discussed earlier is not principally
about brevity; rather, it is about efficiency and conveying
the appropriate level of detail.
• Concise writing is writing that is as succinct as possible
without unduly restricting the amount of information
conveyed.
 Good Legal Writing Is Engaging
(compelling):
The importance of engaging the reader Lord Denning, a
well-known British jurist, described the importance of
engaging the reader as follows:
No matter how sound your reasoning, if it is presented in
a dull and turgid setting, your hearers—or your readers—
will turn aside. They will not stop to listen. They will flick
over the pages. But if it is presented in a lively and
attractive setting, they will sit up and take notice. They
will listen as if spellbound. They will read you with
engrossment.
In other words, readers will not want to keep reading a
document, no matter how clear and concise it is, if it does
not engage their interest.
To appreciate the importance of engagement as a
fundamental quality of good legal writing, consider the
following paragraph: ( on the ff slide)
• Our client is Bill Smith. Smith has filed a lawsuit in federal
court. It is a personal injury case. Smith was watching a
softball game. Smith got hit with a softball. He was
injured. He suffered a concussion. Smith received
treatment at Methodist hospital. He now seeks damages.
He claims to have mental and physical injuries. Smith
doesn‘t know if he is entitled to damages for mental
injuries. He wants us to find out.
This paragraph is unquestionably clear
and concise, but is it well written?

It would be a stretch to call it well written. Why? Well,

because the style is tedious and monotonous.
 What makes writing engaging ?

One simple tool is variety. The writer‘s use of varied

sentence structures, for example, can make the text more
engaging .Writing that is overly repetitive in its syntax
gets tedious; conversely, writing that has appropriate
variation in the length and pattern of the sentences, with
smooth transitions between sentences, has a natural flow
that helps to maintain the reader‘s interest, in the same
way that variation in speech patterns enlivens
conversation.
Some law students seem to emulate the style they see in
older cases when they first try to write legal memoranda
and briefs, apparently thinking that this is the way
lawyers are supposed to write. But the result is writing
that is artificial-sounding and lifeless, full of legal jargon
and stilted constructions.
Other students come to law school having learned to write
in a stuffy, intellectual style that they apparently picked up
from their exposure to academic writing in college.
Superficially it sounds ―intelligent, but it is ponderous
and dense, using a lot of words to say relatively little.
These types of writing fail to engage the reader because
they employ a voice that is not authentic.
 Consider your reader :

The most important audience for legal documents is the

reader, whoever that is. It could be your client, a witness,
another lawyer or party, a court registrar or a judge.
Having a clear idea of your audience is one of the
essential principles of good legal writing.
 Knowing your audience enables you to pitch your writing
style.