Legal writing is a type of technical writing used by lawyers, judges,
legislators, and others in law to express legal analysis and legal rights
and duties. Legal writing in practice is used to advocate for or to express the
resolution of a client's legal matter. 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
rule books: 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 ways: Specialized words and phrases unique to
law, e.g., tort, fee simple, and novation.
Quotidian words having different meanings in law, e.g., action,
consideration, execute, and party. 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; said and such. Loan words and phrases from other
languages: In English, this includes terms derived from French and Latin 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 your 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. 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. Categories of legal writing
Legal writing is of two, broad categories: legal analysis and legal
drafting. Legal analysis is two-fold: predictive analysis, and persuasive
analysis. In the United States, in most law schools students must learn legal
writing; the courses focus on: predictive analysis, i.e., an
outcome-predicting memorandum of a given action for the attorney's client; and
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, rules, and regulations;
contracts; 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.
= 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 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 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 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 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. 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" 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 and public matters.
= Resistance to ambiguity= Legalese may be particularly resistant
to misinterpretation, be it incidental or deliberate, for two reasons:
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, rejects the claim
that legalese is less ambiguous in The Great Myth that Plain Language is not
Precise. Kimble says legalese often contains so many convoluted
constructions and circumlocutions that it is 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 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.
= 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, although no client or judge has ever actually expressed such a
preference publicly. But a study conducted by Joseph Kimble, has
expressly revealed the preference of Judges and lawyers for plain language
alternatives. See also
Business speak Legal English
Plain English Plain language
List of plain English words and phrases Scribes: The American Society of Legal
Writers Walter F. George School of Law
Notes References and further reading
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 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 by Rupert Haigh and
published by Routledge. B.M.Gandhi's Legal language, legal
writing & Gen. English ISBN 978-9351451228
New ELS: English for Law Students written by Maria Fraddosio 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 by 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, Chapter 13,
pp. 171-176, especially its notorious riff on how a lawyer might edit -- and
torture -- the phrase "The sky is blue". 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.", p. 241.)
External links Exercises for Legal Writers II:
Wordiness Exercises for Legal Writers I: Active
and Passive Sentences and Writing with Verbs