CHAPTER 15 - The Legal Writing Process

CHAPTER 15: The Writing Process for Effective Legal Writing msajili; 2014
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The Impoitance of Wiiting Skills: ............................................................................................................................ 2
What a Legal Wiiting Piocess is anu its Impoitance in Legal Wiiting ..................................................... 2
Stages of the Legal Wiiting Piocess ......................................................................................................................... S
The Impoitance anu 0se of an Expanueu 0utline in the Legal Wiiting Piocess .................................. S
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Piewiiting Stage ............................................................................................................................................................... 7
Wiiting Stage .................................................................................................................................................................. 12
Postwiiting Stage .......................................................................................................................................................... 12
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Suggestions anu uuiuelinesLegal Reseaich anu the Piewiiting Stage ............................................. 14
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Bo not tiy to make the fiist uiaft the final uiaft. ............................................................................................ 14


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a. Greater Productivity
! If you possess good writing skills, you can produce a finished product in a
shorter time than an individual who does not possess such skills.
b. Quality
! The quality of a written product depends on writing skill. The greater the
skill, the higher the quality.
! A written product that leaves the firm represents the law firm.
! A shoddy product reflects poorly on the firm and may damage its
reputation.
c. Communication
! Poor writing skills may lead to miscommunication.
! The goal of a legal research memorandum is to inform and record
information. A person with poor writing skills may not be able to fulfill this
goal.
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A legal writing process
o Is a systematic approach to legal writing.
o An organized approach to legal research, analysis, and writing that helps you
develop your writing skill.
It is necessary because:
i. Legal writing is highly organized and structured.
! The use of a legal writing process helps you conduct research and analysis
within the structure and format of the type of legal writing assigned.
! A writing process saves time by providing the means to organize your legal
analysis and research material as it is gathered.
ii. It saves time.
! If you do not have a writing process and merely gather research material
and immediately begin to write, you will waste a great deal of time.
! Using a writing process forces you to think before you write; to follow an
organized structure from the beginning, making your project thorough and
organized.


S
iii. It helps you capture ideas as they come to you.
! A process provides a framework within which to capture ideas and record
them in their proper place as they occur.
! Without a process, ideas may be lost.
iv. It helps you overcome the difficult areas of legal writing.
! It helps you avoid getting stuck in a difficult analytical area or encounter
writers block by providing a stepped approach.
! A process is a guide that includes all the steps and helps ensure that
nothing is left out.
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Prewriting Stage
The stage where the assignment is organized, researched,
and analyzed.
Writing Stage
The stage where research, analysis, and ideas are
assembled into a written product.
Postwriting Stage
The stage where the assignment is revised, edited, and
assembled in final form.
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o An expanded outline:
! Is an outline converted to usable form.
! Consists of a separate notebook page or computer-generated page for
each topic and subtopic of the outline.
! Writers enter their research and analysis in the expanded outline
throughout the prewriting stage as they gather material and conduct
analysis.
! The end result is a rough draft developed during the prewriting stage.
o Benefits of keeping an expanded outline:
! Ideas are not lost.
" Some useful ideas come to you when you are least prepared and
you try to make a mental note of it. Five minutes later, the idea is
lost.
If you can write an idea down immediately where it belongs (in the
expanded outline), it will not be lost.

4
! You can avoid confusion if you record ideas in the section they will appear
in the writing.
" Avoid confusion and time lost figuring out which ideas go where
by:
Keeping a binder with the expanded outline with you
throughout the prewriting stage.
Placing all ideas where they belong as they come to you.
! Writing becomes easier.
! When you sit down to write, all ideas are there, each in its proper place.
You dont waste time in performing the additional step of organizing ideas.
Ideas are immediately organized as they come to you.

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Legal analysis usually takes place when the research is converted into a written product and is
part of the writing process.
Legal writing
o Is the step where the research and analysis are assembled in a written form designed
to concisely record and communicate the answer to a legal question or questions.
The bulk of legal communication is written.
o The vast majority of cases never go to trial. They are settled, and the communication is
written. When the cases do go to trial, much of the trial work involves writing:
! Written motions
! Trial briefs
! Jury instructions
o In many instances, the law firms practice rarely involves litigation but focuses on the
preparation of:
! Contracts
! Wills
! Corporate instruments
! And other legal documents
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Greater Productivity
o If you possess good writing skills, you can produce a finished product in a shorter time
than an individual who does not possess such skills.
Quality
o The quality of a written product depends on writing skill the greater the skill, the higher
the quality.
o A written product that leaves the firm represents the law firm.
o A shoddy product reflects poorly on the firm and may damage its reputation.
Communication
o Poor writing skills may lead to miscommunication.
o The goal of a legal research memorandum is to inform and record information. A
person with poor writing skills may not be able to fulfill this goal.


6
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Primary goal of legal writing:
o To clearly, concisely, and completely convey legal information in a manner that
accomplishes both the following:
! Fully addresses the topic in as few words as possible
! Allows the reader to gain a clear understanding of the information in as little
time as possible
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A legal writing process
o Is a systematic approach to legal writing.
o An organized approach to legal research, analysis, and writing that helps you develop
writing skill.
It is necessary for the following reasons:
i. Legal writing is highly organized and structured.
! The use of a legal writing process helps you conduct research and analysis
within the structure and format of the type of legal writing assigned.
! A writing process saves time by providing the means to organize your legal
analysis and research material as it is gathered.
ii. It saves time.
! If you do not have a writing process and merely gather research material and
immediately begin to write, you will waste a great deal of time.
! Using a writing process forces you to think before you write; to follow a an
organized structure from the beginning, making your project thorough and
organized.
iii. It helps you capture ideas as they come to you.
! A process provides a framework within which to capture ideas and record them
in their proper place as they occur.
! Without a process, ideas may be lost.
iv. It helps you overcome the difficult areas of legal writing.
! It helps you avoid getting stuck in a difficult analytical area or encounter
writers block by providing a stepped approach.
! A process is a guide that includes all the steps and helps ensure that nothing is
left out.


7
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a. Prewriting Stage
b. Writing Stage
c. Postwriting Stage
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The stage where the assignment is organized, researched, and analyzed.
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a. Assignment - an identification of the type and purpose of the writing assignment.
b. Constraints a consideration of any constraints placed on the assignment.
c. Organization - the organization of the writing assignment.
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When reviewing the assignment, three questions must be considered:
o Is the assignment clearly understood?
o What type of legal writing (document) is required?
o Who is the audience?
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Make sure you understand the task you have been asked. If you have questions concerning the
general nature or specifics of the assignment, ask.
Misunderstanding the assignment may result in a great deal of time being wasted in the
performance of the wrong task.
If the assignment is unclear in any way:
o Summarize the assignment orally with the attorney.
o Another approach is to draft a brief recapitulation of the assignment and submit it for
the attorneys review and signature.
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o Determine the type of legal writing the assignment requires.
o Reason:
! You must know what form of legal writing is required because each type of legal writing
has a different function and different requirements.

8
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a. Law-office legal research and analysis memoranda
Prepared when a researcher is assigned the task of researching and
analyzing the law that applies to a clients case.
Designed to inform the reader of the results of the research and
analysis.
b. Correspondence
A paralegal or law clerk may be required to draft:
Demand letters
Settlement proposals
Notices of events (such as hearing dates)
Letter to be sent to client informing client of the law that
applies in the clients case and how the law applies
Although they may not give legal advice to the client, a paralegal or law
clerk may prepare a draft of the correspondence that the attorney will
send to the client.
c. Court briefs
It is a document filed with a court that contains an attorneys legal
argument and the legal authority in support of that argument.
Two categories:
1. Trial court brief
o A brief, which a court may require an attorney to
submit, in support of a position the attorney has taken
in regard to a legal issue in a case.
o Usually submitted in support of or in opposition to a
motion filed with the court.
! Ex.: An attorney files a motion to dismiss a
complaint. In support of the motion, the
attorney files a legal brief containing the legal
and factual reasons why the court should grant
the motion.
2. Appellate court brief
o An appellate brief is a document filed with an appellate
court.
o It presents the legal arguments and authorities in
support of the clients position on appeal.

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o It is designed to persuade the appellate court to rule in
the clients favor.
d. Others
Contracts, wills, and pleadings
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o Identify the audience to ensure that the legal communication is crafted in a manner
commensurate with the readers ability to understand the contents.
o Legal writing assignments are designed to reach a number of different audiences. Intended
reader may be a:
o Judge
o Attorney
o Clients/some other person
The readers ability to understand the writing will depend on:
o The readers legal sophistication, and
o How the document is written.
! When the reader
" Is trained in the law, use of fundamental legal terminology is
appropriate
" Has little or no legal training, it may be necessary to use non-legal
terms to convey the same information clearly
o Whether the writing is intended solely for internal office use
! A writing intended for individuals working in the office may contain information,
comments, or assessments that would not be included in a writing intended to
be read outside the office.
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Consider any possible constraints that may affect the performance of an assignment.
Three major constraints on the writing process:
a. Time if the performance of the assignment is governed by a deadline, allocate a
specific amount of time to each stage of the writing process.
b. Length if the assignment is limited to a set number of pages, organize the writing to
ensure that each section is allotted sufficient space.
c. Format/Organization if the assignment is governed by a specific format or style
established by the office guidelines or court rule, identify the proper format and be sure
you follow it.

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Organization in the prewriting stage is the key to successful legal writing.
Use an outline to keep the assignment organized when it is written.
o Outline it is the skeletal structure and organizational framework of the legal writing.
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a. The value of an outline
b. The creation of an outline
c. The use of an outline

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o An outline is of greatest value when properly used in the prewriting stage.
Reasons:
! The act of creating an outline causes you to organize ideas and prepare
an approach to the assignment at the beginning of the process.
! The use of an outline saves time.
! It provides an organized framework for the structure of the assignment
and for conducting research and analysis.
! It breaks complex problems into manageable components.
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o When creating an outline, the goal is to prepare a skeletal framework of the
document you are going to draft.
o It should provide an overall picture of how all the pieces of the assignment
relate to each other and fit together.
o The form of the outline is not important; use indentations to separate main
topics from subtopics.
o The outline of the legal writing
o Is governed by the type of writing you are preparing. Locate the standard
format used by your law office and use it as the basis for your outline.
o When developing an outline, keep the following points in mind:
a. Keep the facts and issues of the assignment in mind while
developing the outline.
b. Be flexible when creating and working with an outline.
c. Dont be surprised if it is necessary to reorganize the outline as a
result of your research.

11
d. IRAC format used as basic organizational format for most legal
writing that requires legal analysis.
Steps:
1. State the question or issue.
2. Identify the rule of law that governs the issue.
3. Analyze how and why the rule applies.
4. End with a conclusion summarizing the analysis.
o Include in the outline a reference to or some notation for transition sentences.
! Transition sentences connect the major sections of the writing
and lead the reader smoothly through the legal analysis.
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o An outline is of greatest value when it is actively integrated into the prewriting
stage. It can serve as an invaluable guide during the research and analysis
process.
o When integrated into the R&A process, it provides an organized context within
which to place research and ideas.
o Using an outline results in the development of a rough draft while R&A are
being conducted.
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Step 1
Convert the outline
to a usable form
an expanded
outline.
Use several sheets of three-holed or binder paper,
or create separate pages if you are using a
computer. Write the name of each section and
subsection of the outline at the top of a separate
page (e.g., at the top of one page write Issue, at
the top of another page Facts, and so on).
Step 2
Integrate all
research, analysis,
and ideas into the
outline while
conducting research
and analysis.
As you conduct the research and develop ideas
concerning any aspect of the case, enter them on
the appropriate page of the expanded outline.

12
How do you integrate an outline into the R&A process in the prewriting stage?
By using an expanded outline, accomplished in two steps:
1. Convert the outline to usable form.
2. Integrate research, analysis, and ideas into the outline.
a. Ideas: when any idea occurs concerning the case, enter it on the
page of the expanded outline relating to that idea.
The term ideas includes all thoughts relating to the
writing of the assignment, including how to compose
transition sentences.
b. Research: enter all the relevant data on the appropriate page as
you conduct your research.
When you come across info on a case, which you might
possibly use, retrieve it as you find it and place on the
appropriate case page of the outline.
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The stage where research, analysis, and ideas are assembled into a written product.
Writers block an instance when a writer finds it difficult to go from the research stage to the
drafting stage, from the prewriting stage to the writing stage.
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1. Prepare the writing location.
2. Write during the time of the day when you do your best work.
3. Limit interruptions.
4. Begin writing; do not procrastinate.
5. Begin with a part of the assignment you feel most confident about.
6. Do not try to make the first draft the final draft.
7. Do not begin to write until you are prepared.
8. If you become stuck, move to another part of the assignment.
9. Establish a timetable.

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The stage where the assignment is revised, edited, and assembled in final form.
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Revision addresses the broad intellectual and structural content of the legal writing, such as
overall organization, clarity, and conciseness.
o Revise all initial drafts with the idea of improving quality and clarity.

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o Do not set a limit on the number of drafts that may be required.
o The goal: come up with a final product that clearly, concisely, and completely conveys
the information it is designed to convey.
o Develop a checklist for use when revising a draft, including items such as:
1. Is the writing well organized?
2. Is it written in a manner the audience will understand?
3. Is the writing clear? Does it make sense?
4. Is the writing concise? Are there extra words that can be eliminated?
5. Is the writing complete? Are all the aspects of the assignment covered?
6. Are the legal authorities correctly cited?
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It is the part of the revision process that focuses on technical writing issues, such as:
o Punctuation
o Spelling
o Grammar
o Phrasing
o Typographical errors
o Citation errors
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1. Be prepared to edit a legal writing several times. It may be necessary to edit a
revision several times to catch all the errors.
2. Read the document aloud. When you silently read your own draft, the mind
may automatically fill in a missing word or correct an error without your
knowing it, and you will not catch the error. If possible, have a colleague read it
to you.
3. Have a colleague whose writing skills you respect edit the document.
4. Do not rely on computer spell-check or grammar-check functions.

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1. Prepare and use an expanded outline when conducting research.
2. Identify the issue first.
3. Research issues one at a time.
4. Become familiar with the area of law.
5. Locate the enacted law that governs the question.
6. Locate the case law that may apply.
7. Make sure that the research is current.
8. If you reach a dead end, reanalyze the issue.
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Adopt a writing process.
o An organized approach is essential for legal writing.
o Develop a writing process that works for you.
Work from an expanded outline in the prewriting stage.
o An expanded outline provides a framework for organizing your research and capturing
your ideas.
Consider the audience.
o Always identify the audience early in the process. The type of audience influences the
style, depth, and complexity of the finished product.
Consider time, length, and format constraints.
o Identify any constraints that affect the assignment, and design the approach to the
assignment with these constraints in mind.
Do not procrastinate.
o If you have trouble beginning to write, start with the easiest section.
Sit down and begin.
o Do not worry about qualityjust start.
Break large assignments into manageable sections. Do not become overwhelmed by the
complexity of the assignment.
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o Be prepared to compose several drafts. The goal is a quality product. Let the number of
drafts be determined by this goal.

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Update your research. Check all authority to ensure that it is current.

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CHAPTER 15: The Writing Process for Effective Legal Writing msajili; 2014

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