Legal Writing De-Mystified
"Legal writing is a prose specifically intended to convey legal reasoning. It is the primary way by which legal reasoning is communicated. At its best, it is elegant, precise, and persuasive. A good legal writing is like a fine piece of music to its composer. Its author is pleased with himself, and the listener is taken by the piece. Sometimes, however, the writer produces something that is more like a cacophony than a concerto. Sometimes the words are discordant, and sometimes there are too many of them, which causes the reader to drift off in search of something more interesting."
So: What is legal writing? It’s writing created by a lawyer or on behalf of a lawyer, applying legal analysis to support a legal position or position. It includes (but isn’t limited to): any communication that contains legal analysis, or is intended to seek legal opinions include: Legal writing is not simply "legalese" or formal language peppered with Latin phrases that require beginners to spend months learning how to translate. Nor is it meant to be "flowery writing" to impress a judge or client. There’s a difference between legal writing and legal "platitudes," which courts, clients , and attorneys can smell a mile away. It may be true that the style of legal writing is generally characterized by concise, clear, and unambiguous phrasing. It may also be true that most legal writing hopes to convey the thoughts and ideas of the author, with the mere intent to advise, inform, persuade, or warn. Legal writing may even be designed for a variety of audiences, including to advise, inform, persuade, or warn clients, judges, support staff, or even opposing counsel. However, legal writing is not about fancy words or filler just to add "bulk" to the text. Legal writing is not about show or style. Legal writing is for the purpose of communication. Legal writing is about POSITIVE communication. Legal writing is believed to be a lost art, but it need not be. Properly used, legal writing can be as entertaining as any other form of writing. Legal writing communicates legal analysis. Legal writing in a legal manner-like good legal reasoning—is concise and to the point, without filler or frills. Legal writing is also structured and organized, for maximum clarity and communication. Legal writing serves a very practical purpose, and is essential to the life of any legal practitioner.
Components of Legal Analysis
Once you have practiced the elemental skill sets, the next level is mastering the components of legal writing and legal analysis. It’s bad enough that students (and lawyers) get legal writing and analysis confused, but make no mistake, most lawyers are not good at either skill. For practicing your legal writing and analysis, I suggest the following applications: Ok, so what are the basic building blocks? The first is the ability to recognize issues in the case presented. What facts are being disputed? What legal questions do they raise? This is very context dependent. First, know who are the parties and what are the positions they are taking. The defenses required to rebut a tort claim are different than those needed to rebut a breach of contract claim. Know these basic elements by heart. Then imagine how the defendants can rebut the claim, period by period and fact by fact. Yes, think of every possible way a claim can be rebutted. Separate the facts into those that go to proving the claim, and those that do not. Begin to create an outline of how you will rebut the claim. The second building block is rule application. Now this can get deeper and uglier [in my opinion]. But the rule applied in one case, must fit the facts of the case at hand. If it does not, then, it must be distinguished from the case at hand. The rule is different. Period. When you begin to analyze and write a brief here, you may find yourself in great difficulty. When faced with several cases that the rule could apply differently, you must first distinguish each case. Do this in chronological order. Next, separate out those cases that you cannot distinguish. Determine if the cases conflict with each other, or whether both could operate with the facts as alleged [tep]. Next, determine which case[s] you need to follow if you were the court. Most courts will follow a Supreme Court declaratory decision. And most courts follow each other. The challenge is the one case out of left field that reaches a different conclusion. Is it binding? Disgoogle or distinguish. Finally, the third step is logical reasoning. All those who stay up all night wondering how to fit square pegs into round holes [or those who physically train sweating while others sleep] have a great source of mental, psychological and spiritual strength. They must create a path of logic to meet the ultimate goal. The beatings that you take in this exercise only have value if you learn from them. Sometimes it takes years to develop – other times, just weeks. No matter, keep doing it. Now that you have these basics, choose one case, find the issue, find the rule applied and if necessary, describe how the case is different.
How to Develop the Lawyering Skill of Writing
A critical skill in the legal profession is the ability to write clearly and concisely about complex factual situations and legal issues. Your writing must not be verbose or too complicated to easily understand. At a minimum, English grammar and punctuation must be correct. To the extent that you prepare memos for your supervisor, or correspondence for clients, or briefs for the court, clarity and conciseness are essential. For certain types of writing (memos, briefs and correspondence), English usage is also essential. For other types of writing (opinions, drafts of constitutions, restatements and treatises), English usage is more optional.
The first step is to develop the habit of writing clearly and concisely. Often this requires at least a few days of bringing this to mind consciously in order to develop it as a subconscious habit. It may take longer. You may need a whole week. You can try to develop the habit of writing clearly and concisely by using this strategy: mentally remember, each time you write, to do it. After you write, read your written product carefully. Look to see if it is confusing, and clarify it. If it is verbose, condense it.
After you bring the habit of writing clearly and concisely to mind, you can play games with yourself to make sure it continues. For example, you can try to catch yourself 3-6 times a day unclear and/or verbose on your writing, even for a sentence or two. Then think about how to fix it. If you need to fix it, do it. If you don’t need to fix it, ask yourself why you didn’t write clearly and concisely. For example, did you speed read your written product before sending it off? Did you worry that if you made it clearer, you didn’t express your true thoughts? Or something else? Whatever the reason, try to see if you can figure out how to change your habits to avoid the problem in the future. This may take a few months, but after you change your habits, you will not have to deal with some of the problems that people who do not stress clarity and conciseness have.
The solution to any problem, including writing problems, is practice. For writing problems, develop regular strategies to practice. Use these strategies very often. If you see improvement, then your strategies are effective. If you see no or little improvement, change your strategies until you do see some improvement. Depending on the nature of the improvement you want, this may take many months. Alternatively, it may only take a month or two, depending on how complex and widespread the improvement is and also how focused on it you are during the day. This can lead to very serious long-term results.
Make sure you track progress in writing clearly and concisely so you can protect against the inevitable degradation in results over time. For example, log clear and concise emails per day or per week, or clear and concise memos per day or per week. Or track some other metric you deem useful. Don’t worry – whatever you remember will become clearer and more concise. As soon as you no longer remember it consciously for several days in a row, just notice and keep working on it by bringing it to mind again consciously. This has been found to be an effective way to keep up a habit. This is important because keeping up a good writing habit is very important for your long-term results.
The benefits of writing clearly and concisely include improving your effectiveness as a lawyer or business person and also making you a better person.
Legal Writing Taboos
Efficient legal writing doesn’t mean you’ll ignore style and grammar, but it does mean you must ensure your writing reflects a basic intellectual honesty. There’s nothing worse than a legal writing job in which you’ve tried to stress the importance of a point by overstating a conclusion or dealing too lightly with an alternative explanation. You’ve probably seen this in court opinions and, if you are like me, it drives you nuts. The best legal writing provides clarity without drawing too much attention to itself. Make sure your facts and analysis match what a logically thinking person would consider reasonable, and you’ll be off to a good start. (There’s one obvious exception: you may want to "overstate a conclusion" for marketing purposes on your blog, for instance, as that’s not meant to be underwritten in an opinion.)
There’s no reason to convince a jaded legal reader to buy what you’re selling if you don’t have the facts and law to do it. In today’s world, where someone writes something, it is no longer hard to find someone with contrary facts or opinions. I cringe at the thought of writing an opinion where someone pulls up an author’s previous ravings about the case at hand. Don’t be that guy… or gal.
Some other common mistakes in legal writing include: Unfortunately, there are many more examples of legal writers gone wild, but you get the idea. So how do you avoid these types of mistakes? As I’ve already noted, it starts with honest analysis of what the facts and law will reasonably support.
But there’s also a structural component to good legal writing. One common pitfall is the tendency of legal writers to make points before establishing their credibility to do so . For example, legal writers will often take the time to define black letter law, assuming their readers have not bothered to look up the meaning of a legal term. A better option, if you’ve made the honest assessments above, is to simply jump to the point you wish to make and explain why the law should apply. Otherwise, you may waste the time of your readers who seek precisely the kind of analysis that bad legal writing, ironically, so often posits to provide.
Another common issue is legal writers making arguments that are not laid out in their briefs. Let’s say you have a critical piece of evidence, such as a statement by an opposing party. You might be tempted to undermine your opponent’s attempt to rely on a piece of evidence by explaining subsequent context. But if you don’t offer that context in your brief, the court may be amused at your revelation but left feeling a bit confused as to why your argument makes a difference.
Similarly, if you’re going to rely on a particular line of cases, then give us your favorites and explain why they matter. There’s nothing worse than reading a legal opinion where it seems like half the cases cited must be garbage because they are not really on point.
Lastly, what about writing for lay people? Legal writing to lay people should still present the intricacies of an argument without too much complexity, just as legal writing to attorneys should be reliable and pointed without sounding too stuffy. The same pitfalls remain, especially the ones dealing with unwarranted implications and overstated conclusions.
If you do your job well, you won’t need to rely on fancy writing, witty prose or eternal footnotes. You will simply deal with the facts, the law, and connecting the two to illustrate the conclusions that flow from your analysis.
The Interrelationship of Legal Research and Legal Writing
The process of legal analysis and writing never happens in a vacuum. To distill a body of information into a clearly articulated legal argument, you must thoroughly understand the law that forms the foundation of your position. The only way to accomplish this is through legal research, which will help inform your writing and allow you to present your legal argument in the most effective manner possible.
When researching questions of law, you must not only probe cases and statutes for guiding principles. The best lawyers are also adept at discerning the best interpretation of the law, and this requires familiarity with the law’s historical evolution. For example, consider the question of whether a party suing for breach of contract must sufficiently identify the particular item involved at the time of contract formation. Some jurisdictions recognize an exception to the general rule, and finding precedent that is persuasive but ultimately contrary to your interests can deepen your understanding of how this topic has evolved over time and reveal the logic behind competing positions on whether a contract is enforceable.
Identification of precedent is only part of the equation; you must then develop a legal argument based on your findings. To do so, you must consider the basic elements of legal reasoning. An essential first step is defining the question, and doing this often entails rephrasing the question into a series of questions that editors for clarity and precision. Next, you must develop a hypothesis that expresses your approach to resolving the question, basis your interpretation of the law. Finally, you must gather evidence to support your hypothesis, and this evidence should be as factually consistent and logically relevant as possible.
The most fundamental relationship between writing and research lies in the fact that the very purpose of legal research is to make sound writing possible. If you don’t understand the law being applied in a legal memo or brief, it’s impossible to make a clear, persuasive case in favor of your opinion. For this reason, always approach an area of legal inquiry with a flexible and open mind, and reason your way through each problem before rushing to a conclusion. Only then can effective legal writing support sound legal analysis.
Adjusting the Style of Legal Writing for Different Audiences
Legal writing is not a one-size-fits-all endeavor. As you compose your legal documents and even everyday emails, you have to consider who will be reading what you have written. The classic example is adapting a legal brief for either the judge or opposing counsel. The former is presumed to have greater legal knowledge and will defer to your expertise on the applicable law and rules of the court. While it is important to be concise and clearly state your arguments, you do not need to define every legal term. The latter, opposing counsel, certainly has a working knowledge of the law, but will also want footnotes that explain the case law you are using in order to bolster your argument. If you have reviewed the requirements for legal writing as settled in the 2015 case Stringfellow v. K.A. S.I. Inc., you already know how important footnotes are in satisfying opposing counsel’s needs.
There are other audiences you may not consider when drafting your legal documents. Clients, for instance, are often looking for personal reassurance on top of solid legal advice and exceptional representation. If your client does not understand a word of your latest legal brief, it does not help your credibility . Your office’s general counsel may simply want to know the bottom line while having additional information available if they need it. General counsel is interested in protecting the company’s assets and avoiding liability. Journalists like a good story, even when they are reporting on court cases. If you can make them care about the case, you’v got a great chance to have your arguments widely disseminated with a more sympathetic light.
This brings legal writing to your everyday emails. If you are providing information to a client, you will want to balance between being professional and detailed while not offering a dissertation on the problem. However, if you are reaching out to legal counsel, you may want to include some case law, advice on venues, and your credentials as an attorney. Alternatively, if you are writing a synopsis of the case to a journalist, you may want to offer a catchy lede (first sentence) that will hook your audience along with a summary that highlights the chief interest of the article.
You need to pay attention to your audience and go from the broad interest to the specific details. Your conclusion is just as important as your introduction. How you close your legal writing should just as clearly identify the target audience.