The Basics of Legal Writing
At its core, legal writing requires competence in both analysis and communication. In general, if you’re a competent legal analyst, you write just by doing what any good lawyer is supposed to do. But writing that is effective (that moves the reader) demands more. It requires application of sound logic, linguistic prowess, and even a bit of emotional appeal. So mastering legal writing involves blending (figuratively, not literally) these three key components — content, form, and energy — while at the same time exercising your judgment and intuition. It takes work, but it can be done.
The process begins with understanding of the basic elements, which include purpose, role, audience, and genre. These elements cut across all types of legal writing and — when properly understood and applied — are critical to producing work that actually is effective.
Purpose: The nature and extent of the writing and thinking that is needed depends on the writing’s purpose. The primary purpose of legal writing is to solve problems. Lawyers write to inform and persuade a court; to implement a contract or statute; to investigate facts or the law; to plan a business transaction or settlement; and to advise a client. The goal of the writing should generally dictate whether you write generally or specificially , and whether you need to reserach or not.
Role: Your role affects the form the writing takes. A judge’s opinion, for example, is decidedly different than an oral argument. And the role you play is likely the most important factor involved in determining how you should write.
Audience: The audience is paramount. Good legal writers consider their audience before producing anything. You do this by analyzing the audience’s knowledge and attitude toward the issue. This ensures you don’t write over or below their capabilities, and directly affects how and what you write.
Genre: Where and how you communicate also helps determine how to write. Is it a dispute heard by a trial court, an administrative agency, or a court of appeals? Is it a letter, brief, brief, memo, opinion, pleading, transcript, settlement agreement, complaint, or some other form? By knowing the genre, you gain an appreciation for the form the writing should take.
Tools and Resources for Effective Legal Writing
There’s no denying that having the right legal writing resources and tools can maximize the quality of your legal writing. From helpful reference material to the latest online legal writing tips, these resources and tools have the power to convert mediocre writing into first-rate, publishable material. It is crucial for new legal writers to think of specific online and offline resources that will make their legal writing more efficient as they make their cases. To help get you started, here are some of the most essential legal writing resources and tools that every legal writer should use:
Online.
Legal Writing in Plain English: 2nd Edition. The second edition of Joseph Kimble’s instantly popular Legal Writing in Plain English teaches a practical approach to clear, concise, and effective legal writing. As the founder of WMU-Cooley Law School’s renowned Writing Center, Professor Kimble is the perfect author of this expert resource.
The Elements of Legal Style. This writing style guide aims to present the English language as it’s used to communicate legal information. Author Antonin Scalia is an Associate Justice of the US Supreme Court and Bryan Garner is an Editor of Black’s Law Dictionary, which is the most recognized law dictionary in the United States. Together, they obviously make a powerful writing duo. As a result, this is one of the most authoritative sources for an in-depth discussion of legal writing and the best source for the grammatical and citation particulars of legal documents.
LawNerds. LawNerds is an excellent online resource that can be used as a go-to guide for effective legal writing. It offers users the best and the most updated knowledge on specific issues in legal writing by providing a unique combination of blogging and legal services. Law Nerds is also highly praised for its wide-range of online resources, tips, and advice from experts.
Offline.
White Smoke. This professional writing software is an invaluable tool for legal writers. It combines a spelling, grammar and plagiarism checker, and interactive reference tools to ensure the highest quality in legal writing. It can identify issues with wordiness, basic word construction, subject-verb agreement, hyphenation, apostrophes, commas and more. It also has a legal dictionary to help legal writers think of appropriate choice of words.
Chicago Manual of Style. Chicago Manual of Style is a comprehensive guide to all rules regarding grammar, mechanics and usage for legal writers.
Legal Writing Organization and Structure
Effectively structuring legal documents is crucial because, in addition to thinking about the content of your legal writing, you have to think about how you are going to best organize the content for maximum impact. For example, the main argument of your brief is clearly easily gonna come first. However, what should get the second and third paragraphs of your brief? This doesn’t seem like that big a deal, but it is. You have to keep each of these things in mind: paragraphs should be the same length and each paragraph should have a similar number of sentences.
The reason that it’s important for your paragraphs to be the same length is that your tone is very predicated on paragraph length. It becomes very apparent to your audience when you have a paragraph that is too short, as well as too long. This means that your paragraphs become much more easily identifiable, increasing their impact.
This is why it is also important that each paragraph have a similar number of sentences. Having similar numbers of sentences allows your audience to say, "That’s paragraph two sentence one," for example. They know that sentence is part of paragraph two and that that paragraph has four sentences total, because none of the other sentences in paragraph two were even close to the length of that sentence.
It turns out, sentence length is also very important. Because, for example, the conduit modulator verbs suggested by Bryan Garner that I referenced yesterday are such long verbs that they actually completely ruin the rhythm or cadence of the sentence. This means that if you’re using too many of these conduit modulator verbs, your sentences are effectively going to become as long as they could possibly be before they lose their meaning and impact. In addition, when you use too many of these verbs, the same thing happens as mentioned above with paragraph lengths: The audience quickly begins to notice that your language is really grandiloquent and your style is excessive.
What you need to keep in mind in general is that you want a clear, plain, concise, and effective style in all legal writing styles. This applies to all legal writing styles, no matter what the document is. Consequently, for any document, you want to think about how you’re going to include headings, sections, and paragraphs. I find that the most effective way to handle this is to start with headings, move on to sections, and then create and edit paragraphs at the same time.
Also, while you’re drafting, you generally just want to actually write the content of the paragraphs. Don’t worry about punctuation, spelling, or grammar at all. Then, once you have the structure of the document set up and the content mostly complete, you can go back and focus on grammar, spelling, punctuation, and so on. Once you’ve completed those edits, and the actual content of the paragraphs is set up, you can edit for each of the rest of these five things: Tone, overall clarity, accuracy, conciseness, and persuasiveness.
Bear in mind that putting together a structure is not easy. Your structure should feature headings, sections, and paragraphs all working in concert with each other to create a clear, plain, concise, and effective style.
The Importance of Tone and Style in Legal Writing
When drafting a legal document, the words you choose, the metaphors and analogies you use, and the way you structure your sentences all contribute to the way the message is delivered. Tone, style, and voice are interrelated and in the context of a legal document serve the purpose of clearly conveying the writer’s message to the intended audience. If your audience includes clients, judges, or opposing counsel, you have to be careful about the tone and style of your writing, so as not to offend, belittle, or incite. In some cases that may actually be exactly your intention and, in that case, you better be sure you are either wearing your big boy pants, and can back it up, or have good reason to believe there will be no consequences to you or your position for that type of writing.
Tone is how tone-deaf the writing is to the reader. Scenario: You’re a lawyer representing a plaintiff with a serious injury, it is caused by a defective power tool that the plaintiff was using as intended, in the course of his work, and there are in fact no other reasonable alternatives provided by the manufacturer. Plaintiff has no other way to earn a living to support his family, without being dependent on government assistance programs, if he’s unable to work. Then, you write a pleading to the court that says: "what plaintiff is really asking for is for the defendant to step in and be his fairy godmother". I know that tone is off the charts, but can you point me to the statute or case law that says the maker of a defective power tool is NOT liable under the facts stated above? So while this exasperating tone may not be offensive to the judge or local counsel in that particular case, in the grand scheme of things it is lazy legal writing and should not be tolerated (by judges) or rewarded in making a point (by counsel).
Formal legal writing should use italics and proper formatting to highlight relevant parts of the text, so the reader can easily find the points you are trying to emphasize. You need to make sure you think as an editor before you hit send or print.
In terms of style, there is an appropriate balance in legal writing between formal and conversational. Put another way, when drafting a legal document consider adopting the styles of these two colorful characters. In the following examples you will see what is meant by the former, the latter, and somewhere in between:
"In the matter now before the Court, the Defendant nation of Bikini Bottom files this its Answer to the Plaintiff nation of Atlantis"
versus
"Hey, Brada"
Then somewhere in between:
"Let’s go ahead and have the documents signed, court-stamped and filed."
Basically, tone is how you convey your message and style is how you project your self-image or personal brand. The best legal writers and communicators know how to manipulate both the tone and the style of their writings to achieve their rhetorical goals.
Legal Writing and Terminology
Mastering Legal Writing: A Comprehensive Handbook for New Legal Writers
Navigating Legal Language and Terminology
Employing legal terminology becomes second nature to lawyers and judges after years of practice, but for new lawyers, the text and language of legal documents can be daunting. Some find themselves thinking in Latin when drafting or reading legal writing, but it is important for new attorneys to avoid this trap.
Legal terms serve as shorthand for complex legal theories, ideas, or rules. Most legal terms are adopted from Latin, and these terms possess subtle shades of meaning that must be transmitted in their use. Sometimes a definition in a dictionary will suffice , and sometimes it is necessary to work through to language that conveys at least the general intent and meaning of the legal term. Experienced and skilled legal writers should have a ready mental translation of legal terms into plain English.
There are situations in which there is no legal term with an exact equivalent in plain English. In these instances, after you’ve explained the meaning as best you are able, you may choose to use the legal term as a substitute for the longer phrase. However, it is always advisable in communication with clients to provide at least a brief explanation of the technical legal term that you have retained in your writing.
When dealing with legal issues, upscale your vocabulary from "What does this mean?" to "In what way does this translate into layman’s terms?" And don’t be satisfied to just give the bottom line. Learn to explain the conversion process; that transfers your learning from memorization to long term memory within the brain.
Legal Writing Tips and Mistakes to Avoid
As new legal writers set out to learn the craft of producing quality legal writing, common pitfalls await to slow down progress, derail studies and delay proficiency. Understanding these pitfalls is the first step to improvement:
Passive Voice
The most common mechanical error in legal writing is the passive voice. Measure your work by reading it aloud. Are you often saying, "Kim was given a continuation of her contempt hearing"? Use "The judge gave Kim a continuation of her contempt hearing." The passive voice masks the important player in the action, makes the clause longer and leads to awkwardness.
Brevity
Being verbose is one of the biggest impediments to effective legal writing. You cannot write too short, only too long. Avoid long, complicated sentences. Use short paragraphs. Eliminate adverbs.
Misinterpretation of Legal Concepts
Many new legal writers fail in their interpretation of the legal standards which lead to frustrations. Background research is essential to understand how a law or rule was interpreted before writing a statement of law. Are you sure your law hasn’t been interpreted by the courts in a way that would surprise you? Ask a lawyer. Even the lawyers can get surprised by a new decision or an extension of precedent.
"Me Too" Syndrome
Do not handicap your papers by basing a position on assertions made in other cases when the similarities may be just a little bit too similar. This happens often in family-law cases involving property division, parenting time and support. Study the reasoning and apply it logically to the facts in your case to avoid being handicapped by bad precedent.
Avoiding these common pitfalls will make the process far easier and make you a much more effective writer.
How Feedback and Revisions Can Enhance Legal Writing
Feedback and revision are essential to finding success as a legal writer. You have undoubtedly read passages where authors butchered their prose, and you have undoubtedly winced in horror. Your professors surely won’t let you get away with such errors. Why would you think that anyone would want to read your work if it contains embarrassing mistakes? The answer is that they won’t. The importance of feedback and revision cannot be overstated.
As we have stated previously, you should consider getting outside help from time to time, especially if you have the slightest doubt about your writing, or your ability to improve it. If you are obtaining the above mentioned outside help, you can skip this section. Everyone else, read on.
It is actually not as difficult as you might think to find someone to read your work. Someone in your office, another associate, a law clerk, a student in one of your classes, or a colleague are all good choices. Do not be shy about asking someone for help. And be specific about what kind of help you need: proofreading, editing, general feedback, or substantive feedback. Proofreading and editing is the easiest, and least intrusive type of request. A simple "here’s a draft of something I wrote, could I ask you to take a minute to read it over and let me know if you see any obvious typos?" is probably sufficient. This will usually take less than five minutes, and requires no knowledge of the law at all to accomplish. It will not insult anyone’s intelligence or take away their valuable time, and there will surely be someone in the office willing to do you this small favor.
Editors, on the other hand, take a little bit more time, but will also say yes more often than not. Editors also usually only have two kinds of feedback to offer: grammatical or substantive. A good editor will help you fix typos, bad grammar, horrible sentence structure, and wordiness. A very good editor will also be able to help you with organization and might even be able to suggest more persuasive wording.
Grammatical and stylistic edits are helpful, but are unfortunately often limited by the editor’s legal education and training. This should not be taken as a criticism of the editor; a first year law associate or 3rd year law student who has never written a brief or a motion probably will not have much more than a general understanding of what is considered a proper legal writing style. This is acceptable. The benefit is that grammatical and stylistic editing is far easier to come by than substantive editing. A skilled substantive editor might have a deep understanding of the law in the issue you are writing about , which would be great news for you. But they might be busy, unwilling or unable to help. As always, the choice is yours.
So, how do you revise in light of such feedback? Things can start to get a little tricky here because you have to remember that your job is to write for your audience, and that means changing your writing as much as necessary to fit the needs of your editors. You most likely have spent plenty of time honing your voice as a writer, but that process is inevitably fraught with mistakes and bad decisions. For every sentence that flows beautifully, there are probably two that are clumsy at best, or total bombs at worst. That is why critique from experienced legal editors, judicial clerks and law professors is so valuable. How can you be expected to learn the right way to write if everyone has already gotten used to your writing quirks, flaws and preferences? Flaws can be corrected, and conventions adopted at any time, but you will need knowledgeable editors that are willing to help.
If you get negative feedback, it can be difficult to not overreact. So try to be tough. If you get a boilerplate comment that you are too wordy, or your writing is unclear, or your sentences are choppy, listen to it. Consider it. If you agree with it, that is great. That is a chance to make a big improvement to your writing. If you don’t agree with it, consider it anyway, and try to come up with a reasonable explanation for why the editor might not have liked the piece in front of them. This last point is really important. Emotion and defensiveness have no real place in legal writing.
Yes, there is a time and place for emotion in legal writing, but not in response to feedback. If your editor is a jerk, it is perfectly acceptable to oppose their comments. But it is not acceptable to engage with them in a petulant, defensive manner. Stay calm. Listen to them, even if you already intellectually know all of their arguments. Respond professionally, not emotionally. If you can incorporate their comments, do so, and point them out in your cover letter when you send the revision.
This might sound like an awful lot of work and a lot of emotional strain. Surprisingly, it gets easier with practice. And it becomes essential when you get more senior, and find yourself responsible for auditing more junior associates’ work.