The difference between the right word and almost the right word is the difference between lightning and the lightning bug. – Mark Twain
After you have completed your legal research, your results, motion, response, analysis, arguments and conclusions must be reduced to writing in a manner that is understood by those unfamiliar with your case and issues.
Legal writing is used by lawyers, judges, legislators, and others in law to express legal analysis, legal rights, and duties. Legal writing is also used to advocate for or to express the resolution of a litigant's legal matter. Most likely, during some point in your case, you will need to express yourself in writing.
Any writing directed to the court should clearly state the purpose and what it is you want to court to do. Whenever you file any documents with the court, you are usually required that to also provide a copy to all other parties involved and serve notice (certificate of service) to the court that you did, in fact, provide those copies. Keep in mind that your filed court documents are considered public records and anyone may be able to gain access to them.
A style guide is a set of standards for the writing and design of documents, either for general use or for a specific publication, organization, or field. A style guide establishes and enforces style to improve communication. To do that, it ensures consistency (within a document and across multiple documents) and enforces best practice in usage and in language composition, visual composition, orthography (including spelling, capitalization, hyphenation, and other punctuation), and typography. For academic and technical documents, a guide may also enforce best practice in ethics (such as authorship, research ethics, and disclosure), pedagogy (such as exposition and clarity), and compliance (technical and regulatory).
The Chicago Manual of Style is the authoritative, trusted source that writers, editors, and publishers turn to for guidance on style and process.
The National Geographic Style Manual is a guide to preferred National Geographic Society style and usage. It is not meant to be definitive; use it along with other sources and your own editorial judgment.
U.S. Government Printing Office Style Manual has been used since 1894 to determine the form and style of Government printing. The entire 467 page GPO Style Manual in PDF format can be downloaded for free.
Legal writing places heavy reliance on authority. The writer must back up assertions and statements with citations to authority. 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.
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.
Legal writing extensively uses technical terminology that can be categorized in four ways:
- Specialized words and phrases unique to law, e.g., tort, fee simple, and novation.
- Ordinary words that have different meanings than their common everyday use when use 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 common 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 (pronominal adverbs); said and such (as adjectives).
- 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 italicized as English legal language, as would be foreign words in mainstream English writing.
Common legal terms are included in the Court.rchp.com legal dictionary.
Legal writing tends to be formal and may include long sentences, complex constructions, archaic and hyper-formal vocabulary. Some 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 creates confusion and imprecision, it is undesirable. To the extent that formality hinders reader comprehension, it is less desirable. When legal writing is directed to non-lawyers, formality should give way to clear communication.
Legal writing is of two, broad categories: (i) legal analysis and (ii) legal drafting. Legal analysis is two-fold: (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, states a position and supports this position by presenting arguments and evidence from several sources, e.g., motions and briefs.
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.
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 creates binding, legal text. It includes enacted law, such as statutes, rules, and regulations; contracts (private and public); 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 stylized voice.
Copyright ©2015, Randall Hill, Excerpted from chapter 6, “Legal Research for Non-Lawyers.” About a dozen additional valuable legal writing resources are revealed in Chapter 6.