Legal writing


Legal writing

Legal writing is a type of technical writing used by legislators, lawyers, judges, and others in law to express legal analysis and legal rights and duties. Its distinguishing features include reliance on and citation to authority, importance of precedent, specialized vocabulary or jargon, and a tendency toward excessively complicated grammar and overformality.

Distinguishing features

Authority

Legal writing places heavy reliance on authority. In most legal writing, the writer must back up assertions and statements with citations to 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 rulebooks: the "ALWD Citation Manual: A Professional System of Citation" and "The Bluebook: A Uniform System of Citation". Different methods may be used in other countries.

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 categories:

# Specialized words and phrases unique to law, e.g., "tort", "fee simple", and "novation".
# Quotidian 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).
# Archaic vocabulary: legal writing employs many old words and phrases that were formerly quotidian language, but today exist only in law, dating from the 1500s; English examples are "herein", "hereto", "hereby", "heretofore", "herewith", "whereby", and "wherefore" ; "said" and "such" (as adjectives).
# 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, requiring cited authorities, make legal writing formal. Many law schools teach writing in this classical, formal, complex manner for the sake of "legal" clarity. Recently, however, the law has moved from classical legal writing towards a concise, mainstream, reader-friendly style. While legal vocabulary and verbose sentences make legal writing difficult for non-attorneys, it is necessary.

Legal writing's principal purpose is to provide a thorough and precise document. In following a tried-and-true format, a legal document leaves little open to interpretation. An informal format renders the document's legal intentions unclear.

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 persuading the deciding authority to favourably decide the dispute for the author's client. Motions and briefs usually are submitted to judges, but also to mediators, arbitrators, and others. A persuasive letter may attempt persuading the dispute's opposing party; persuasive writing is the most rhetorically stylised. 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, i.e., statutes, rules, regulations, contracts (private, public), agreements, notices, legal information, and related documents about personal legal matters (wills, trusts). Legal drafting requires no legal authority citation, and generally is written without a stylised voice.

Legal Writing in Academia

Mercer University School of Law is home to the Legal Writing Institute, the world's largest organization devoted to improved legal writing. The Institute's 1800 members represent attorneys, judges, and legal writing professors in the United States, Canada, Europe, Asia, Australia, and New Zealand.Mercer’s legal writing program has been ranked first or second since US News & World Report began the specialty ranking in 2006. The program was ranked first in 2006 (tied with one other school), second in 2007, and first in 2008.

Plagiarism

In writing an objective analysis or a persuasive document, lawyers write under the same plagiarism rules applicable to most writers. 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.

Legal drafting is different; unlike in most other legal writing categories, plagiarism is accepted, because of the high value of precedent. As noted, lawyers extensively use formats (contracts, wills, etc.) in drafting documents; borrowing from previous documents is common. A good lawyer may frequently copy, verbatim, well-written clauses from a contract, a will, or a statute to serve his or her client's legal interests.

Legalese

"Legalese" is an English term first used in 1914 [ [http://www.etymonline.com/index.php?term=legal} Online Etymology Dictionary ] ] for legal writing that is difficult for laymen to read and understand, the implication being that said abstruseness is deliberate for excluding the legally untrained and to justify high fees. "Legalese", as a term, has been adopted in other languages. [ [http://www.babylon.com/definition/legalese/French legalese | French | Dictionary & Translation by Babylon ] ] [http://tur.proz.com/kudoz/1551838] 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. Today, the Plain Language Movement in legal writing is progressing, and experts are busy trying to demystify legalese.

Some important points in the debate of "legalese" vs "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).

Resistance to Ambiguity

Legalese may be particularly resistant to misinterpretation, be it incidental or deliberate, for two reasons:Fact|date=May 2008
#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.
#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, refutes the claim that legalese is less ambiguous in "The Great Myth that Plain Language is not Precise". [{7 Scribes J. Leg. Writing 109 (1998–2000)}] Kimble says legalese often contains so many convoluted constructions and circumlocutions that it is vaguer and 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; see Howard Darmstadter, "Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting" 34 (ABA 2002).

Expectation/Preference

Regardless of its objective merits or demerits when compared to plain English, legalese has a clear importance as a professional norm. As such, lawyers, judges, and clients may expect and prefer it.

For a humorous example of non-legalese, see the Interactive EasyFlow software license & disclaimer excerpts.

References and further reading

* " [http://www.cambridge.org/elt/legalenglish/ 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.

* " [http://www.forum-legal.com/docubase.htm#cavendish Legal English] " (2004) by [http://www.forum-legal.com/people.htm Rupert Haigh] and published by Routledge.

* "New ELS: English for Law Students" written by Maria Fraddosio (Naples, Edizioni Giuridiche Simone, 2008) is a course book for Italian University Students.

* " [http://www.forum-legal.com/docubase.htm# The Oxford Handbook of Legal Correspondence] " (2006) by [http://www.forum-legal.com/people.htm 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.

See also

* Business speak
* Gobbledygook
* Legal English
* Plain English
* Plain language
* Plain Language Movement
* Mercer University School of Law

References

External links

* [http://www.plainenglish.co.uk/guides.htm Plain English]
* [http://www1.law.ucla.edu/~volokh/legalese.htm An advocate for simplification of legal terminology offers a table of legalese words and suggested replacements]


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