LEGAL WRITING

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:
I.
II.
III.
IV.

Authority
Precedent
Vocabulary
Formality

I. Authority

Legal writing places heavy reliance on

authority. In most legal writing, the writer
must back up assertions and statements with
citations to authority.

RESEARCH IS ESSENTIAL.

II. Precedent

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.

III. Vocabulary

Legal writing extensively uses

technical terminology that can be categorised in
four ways:
A.

Specialized words and phrases unique

to law, e.g., tort, fee simple, and novation.

B.

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).

C.

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 (
pronominal adverbs); said and such (as adjectives).

D.

Loan 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
italicised as English legal language, as would be
foreign words in mainstream English writing.

III. 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.

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

Categories of legal writing

(i)

Legal Analysis

A.

Predictive analysis
B. Persuasive analysis

(ii) Legal Drafting

Predictive legal analysis

an outcome-predicting memorandum (positive or

negative) of a given action for the attorney's client.

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.

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.

Legal drafting

Legal drafting creates binding, legal text. It

includes enacted law like 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 stylised voice.

SOME USEFUL TIPS:

I. Avoid passive voice when possible.
Passive voice in a sentence occurs when a writer makes the
object of an action into the subject of a sentence.
II. Do not begin a sentence with it or there.
Although it is not technically a grammatical mistake, try to
avoid starting a sentence with it or there that is then
followed by any form of the verb be. Instead of beginning
sentences with the word there, locate the true subject of a
sentence and begin with those words: Three pieces of
evidence support my clients case. This reconstructed
sentence is much stronger and more appealing to a reader.

III. Semicolons can be confusing

The semicolon may be the most misunderstood
punctuation mark in the English language.
Writers often use this mark where a period,
colon, or comma belongs.
Which is correct?
Although Martin ran as fast as he could, he
could not catch it; the bus.
Martin ran as fast as he could; yet, he could
not catch the bus.

IV. Beware of pronoun/antecedent

agreement.

Pronoun/antecedent disagreement is one of the

most common mistakes found in my students
writing. A pronoun always must agree with its
antecedent in number (singular or plural) and
person (first, second, or third person).
Is this correct?
The lawyer convinced the jury that the evidence
overwhelmingly supported their client.

V. Placement of punctuation after

quotation marks.

typically, question marks and exclamation

points are placed inside the closing quotation
mark when the mark applies only to the
quoted material: The baseball announcer
yelled into the microphone, Play ball!
However, if the mark applies to the entire
sentence, the punctuation is placed outside of
the closing quotation mark: Did she ask, How
much will the repairs cost?

VI. Because versus Since.

The
distinction
between
these
two
prepositions has blurred in recent years, but I
still believe that an acute writer should follow
the traditional usage. The word since is a
time or temporal word. For example, I have
lived in Ohio since I was a baby. The
preceding sentence provides a reader with
information about how long I have lived in
Ohio. To the contrary, the word because is tied
to causation. For example, Because I have
lived in Ohio for so many years, I know how to
drive in the snow.

VII. Its versus Its.

This one is truly problematic for even the most

gifted writer. Its is a contraction for the two
words it and is. For example, I think I
need to put on my coat because its cold.
Its, however, is a possessive word. The bird
must have fallen out of its nest.

VIII. Affect versus Effect.

Errors in writing often involve words that sound alike

(homophones). Affect and effect are two very good
examples of words that often are incorrectly
interchanged. Affect (as a verb) commonly means to
influence, to change, or to assume. ( Gregg Reference
Manual). The presidents new bill will not affect the
current status of the market. Effect is frequently used
as a noun and means the result of something. ( Gregg
Reference Manual). The country will not know for
several years whether the presidents new bill created
an effect on the market. However, effect can be used
as a verb that means to cause something to come into
being: The policy will effect change in local
government practices.

IX. Common spelling errors, and there,

their, or theyre.

Nearly every writer sometimes misspells the

following common English words. First,
cannot is one word. Second, a lot is two
words. Third, judgment does not have an
e between the d and the g. Finally, people
often confuse the words there, their, and
theyre.
Possessive
their
means
belonging to them. Theyre is a
contraction of they are. There is then used
for every other use of the word.

X. Proofread your work.

Last, but certainly not least, proofread your work.

Grammar, punctuation, and usage errors not only
confuse readers but reflect poorly on you. Review a
paper for the final time by reading it aloud backwards
sentence by sentence. When a person reviews a piece
of writing many times, the persons brain tends to fill
in the gaps and supplements missing words or
rearranging misplaced parts of a sentence. Reading a
document backwards and aloud enables a writer to
review a piece in a fresh, new way and out of the
normal context and flow of the work. A sentence that
may have made sense in the framework of the rest of
the paragraph may not make sense at all standing on
its own.