LEGAL WRITING Legal writing is a type of technical writing used by lawyer s, judge s, legislator s and others in law to express

legal analysis and legal rights and duties. Authority Legal writing places heavy reliance on authority. In most legal writing, the wri ter must back up assertions and statements with citation s 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 Ameri can 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 contr act 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 succ essful 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: 1. Specialized words and phrases unique to law, e.g., tort , fee simple , and novation . 2. 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). 3. Archaic vocabulary: legal writing employs many old words and phrases tha t were formerly quotidian language, but today exist mostly or only in law, datin g from the 16th century; English examples are herein, hereto, hereby, heretofore , herewith, whereby, and wherefore (pronominal adverbs); said and such (as adjec tives). 4. Loan words and phrases from other languages: In English, this includes t erms 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 fo rm of long sentences, complex constructions, archaic and hyper-formal vocabulary , and a focus on content to the exclusion of reader needs. Some of this formalit y in legal writing is necessary and desirable, given the importance of some lega l documents and the seriousness of the circumstances in which some legal documen ts 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 exten t that formality hinders reader comprehension, it is less desirable. In particul ar, 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 asses sing the needs and expectations of the audience. For example, an appellate brief to the highest court in your jurisdiction calls for a formal style this shows prope r 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 agre ement between two large corporations, in which both sides are represented by cou nsel, will be highly formal and should also be accurate, precise, and airtight (feat ures 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 allowin g the members of a neighborhood association to designate their voting preference s 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 technic al 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 r esort to a template-based, outdated, hyperformal writing style in both analytica l and transactional documents. This is understandable, but it sometimes unfortun ately perpetuates an unnecessarily formal legal writing style. Categories of legal writing Legal writing is of two, broad categories: (i) legal analysis and (ii) legal dra fting. Legal analysis is two-fold: (1) predictive analysis, and (2) persuasive a nalysis. In the United States , in most law school s students must learn legal writing; the courses focus on: (1) predictive analys is, i.e., an outcome-predicting memorandum (positive or negative) of a given act ion 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; ot her types of legal writing concentrate upon writing appeals or on interdisciplin ary aspects of persuasion. Predictive legal analysis The legal memorandum is the y include the client letter outcome of a legal question and the relevant facts that most common type of predictive legal analysis; it ma or legal opinion. The legal memorandum predicts the by analyzing the authorities governing the question gave rise to the legal question. It explains and app

lies the authorities in predicting an outcome, and ends with advice and recommen dations. The legal memorandum also serves as record of the research done for a g iven 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 au thority to favourably decide the dispute for the author's client. Motions and br iefs are usually submitted to judges, but also to mediators, arbitrators, and ot hers. In addition a persuasive letter may attempt to persuade the dispute's oppo sing party. Persuasive writing is the most rhetorically stylised. So although a brief states the legal issues, describes authorities, and applies authorities to the questio n as does a memorandum the brief's application portion is framed as an argument. The aut hor 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 statute s, rules, and regulations; contracts (private and public); personal legal docume nts like wills and trusts; and public legal documents like notices and instructi ons. Legal drafting requires no legal authority citation, and generally is writt en 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 Instit ute's 2100 members represent attorneys, judges, and legal writing professors in the United States, Canada, Europe, Asia, Australia, and New Zealand. Plagiarism In writing an objective analysis or a persuasive document, lawyers he same plagiarism rules applicable to most writers. Legal memoranda and briefs must ibute quotations and source authorities; yet, within a law office, t borrow from other lawyers' texts without attribution, in using a successful argument made in a previous brief. write under t properly attr a lawyer migh well-phrased,

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, plag iarism is accepted, because of the high value of precedent. As noted, lawyers ex tensively 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 c lient's legal interests. Legalese Legalese is an English term first used in 1914 for legal writing that is designe d to be difficult for laymen to read and understand, the implication being that this abstruseness is deliberate for excluding the legally untrained and to justi fy high fees. Legalese, as a term, has been adopted in other languages. Legalese is characterized by long sentences, many modifying clauses, complex vocabulary, high abstraction, and insensitivity to the layman's need to understand the docu ment's gist. Legalese arises most commonly in legal drafting, yet appears in bot h types of legal analysis. Today, the Plain Language Movement in legal writing is progressing and experts are busy trying to demystify legale

se. Some important points in the debate of "legalese" v. "plain language" as the con tinued standard for legal writing include: Public comprehensibility Perhaps most obviously, legalese suffers from being less comprehensible to the g eneral public than plain English, which can be particularly important in both pr ivate (e.g., contracts) and public matters (e.g., laws, especially in democracie s 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: 1. Its long history of use provides a similarly extensive background of pre cedent tied to the language. This precedent, as discussed above, will be a stron g 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. Joseph Kimble, a modern plain-English expert and advocate, rejects the claim tha t legalese is less ambiguous in The Great Myth that Plain Language is not Precis e. Kimble says legalese often contains so many convoluted constructions and circ umlocutions that it is more ambiguous than plain English. Coverage of contingencies Legal writing faces a trade off in attempting to cover all possible contingencie s while remaining reasonably brief. Legalese is characterized by a shift in prio rity towards the former of these concerns. For example, legalese commonly uses d oublets 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 contin gency, and that lawyers should not attempt to encompass every contingency they c an foresee. Rather, lawyers should only draft for the known, possible, reasonabl y expected contingencies; see Howard Darmstadter, Hereof, Thereof, and Everywher eof: A Contrarian Guide to Legal Drafting 34 (ABA 2002). Expectation/preference Regardless of its objective merits or demerits when compared to plain English, l egalese has a clear importance as a professional norm . As such, lawyers, judges, and clients may expect and prefer it, although no cl ient or judge has ever actually expressed such a preference publicly.