Legal writing
From Wikipedia, the free encyclopedia
Legal writing is a type of technical writing used by legislators, lawyers, judges, and others in law to express legal analysis and legal rights and duties. Its distinguishing features include reliance on and citation to authority, importance of precedent, specialized vocabulary, and a tendency toward overformality. (Much of what is said here applies in all English-speaking countries, but this article focuses on legal writing in the United States.)
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[edit] 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. Two competing guidebooks define the standard methods for legal citations: the ALWD Citation Manual and The Bluebook.
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 forms.
Vocabulary. Legal writing makes extensive use of technical terminology. This distinctive vocabulary can be classified in four categories:
- Specialized words and phrases unique or nearly unique to law, such as tort, fee simple, and novation.
- Everyday English words that when used in law have different meanings from the everyday usage, such as action (a lawsuit, not movement), consideration (support for a promise, not kindness), execute (to sign, not to kill), and party (a principal in a lawsuit, not a social gathering).
- Archaic vocabulary: legal writing employs a fairly large number of outdated words and phrases that were formerly part of everyday English but are today rare except in law. Some date from the 1500s. Most are long-abandoned outside the law. For example: herein, hereto, and hereby; said and such (as adjectives); and wherefore.
- Loan words and phrases from other languages: in this category are terms derived from French (such as estoppel, laches, and voir dire) and Latin (both terms of art such as certiorari, habeas corpus, and prima facie; and non-terms of art such as inter alia, mens rea, and sub judice). Such foreign words are not written in italics or other distinctive type as is customary when foreign words appear in other English writing.
Formality. The three preceding features--along with other forces--often bring to legal writing a high level of formality even when it is not required. The constant resort to authorities that were created long ago can lead lawyers to mimic an older and more formal style of writing. The use and re-use of form documents without updating their language also perpetuates a formal style of writing. And the use of specialized vocabulary, both necessary and unnecessary, makes much legal writing very formal.
Besides these three features, other causes contribute to overformality in legal writing: some lawyers believe formal language is more fitting to the serious and lofty purposes of the law, some believe formal language impresses or intimidates nonlawyers, many did not receive comprehensive training in legal writing during law school, and some simply do not want to adapt their formal writing style to the modern environment.
[edit] Categories of legal writing
Legal writing can be divided into two broad categories: legal analysis and legal drafting. Legal analysis can itself be divided into objective analysis and persuasive analysis. In the United States, most law schools now require students to take courses in legal writing, and these courses focus on objective analysis--the legal memorandum, considered a building block of all legal training--and persuasive analysis, including motions and briefs. Although not as widely taught in law schools, legal drafting courses exist and are expanding.
Objective legal analysis. The legal memorandum is the most common type of objective legal analysis, but this type may also include the client letter or legal opinion. The legal memorandum provides a balanced and objective discussion of a legal question and the authorities that govern the question. It explains and applies the authorities so as to predict an outcome, and it usually offers advice or recommendations. The legal memorandum also serves as a record of the research undertaken on a given legal question. By tradition and to meet the expectations of typical legal readers, it is organized and written in a fairly formal way.
Persuasive legal analysis. A persuasive document, such as a motion or brief, attempts to persuade a decision-maker to decide a dispute in favor of the author's client. Motions and briefs are usually submitted to judges, but persuasive documents may also be submitted to mediators, arbitrators, and others who resolve disputes. And a persuasive letter may be used to persuade the opposing party in a dispute. Of the types of legal writing, persuasive writing is the most conducive to rhetoric, style, and flair. So although a brief states the legal issues, describes authorities, and applies authorities to the question--just as a memorandum does--the application portion of a brief is framed as an argument. The author argues for one approach to resolving the legal issue and does not present a neutral analysis.
Legal drafting. Legal drafting is the category of legal writing concerned with creating binding legal text. It includes enacted law, such as statutes, rules, and regulations; private and public contracts and agreements; notices and legal information; and documents related to personal legal matters, such as wills and trusts. Legal drafting does not require the citation of legal authority and is generally written without personal flair or voice.
[edit] Plagiarism
In preparing an objective analysis or a persuasive document, lawyers generally operate under the same plagiarism rules that apply to most writers. Legal memorandums and briefs should not quote, use, or rely on authorities without giving proper attribution. But within a single law office, a lawyer might borrow from other lawyers' texts without giving attribution or might use a well-phrased and successful argument made in a previous brief.
Plagiarism is strictly prohibited in academic work, and particularly in law review articles, seminar papers, and similar pieces intended to reflect the author's original thoughts.
But legal drafting is different. Unlike most other areas of writing, plagiarism is not frowned upon in legal drafting. This is because of the high value legal writers place on precedent. As noted, lawyers commonly make extensive use of forms for creating drafted documents such as contracts and wills. Many forms are commercially created and sold. Borrowing from previous drafted documents is also a common practice. A good lawyer may frequently copy verbatim well written clauses from a contract, will, or statute.
[edit] Legalese and the plain-English movement
Legalese is a term for legal writing that is difficult for nonlawyers to understand. For all the reasons discussed earlier in this article, legal writing tends to be very formal. This formality is manifested in long sentences, numerous modifying clauses, complex vocabulary, high levels of abstraction, and a general lack of sensitivity to the needs of the nonlegal reader. Legalese arises most commonly in legal drafting, although it appears in both types of legal analysis as well. Today, the Plain English movement in legal writing is gaining a foothold, and experts are busy trying to debunk what they see as the myths of legalese.
In defense of legalese or traditional legal-writing style, some lawyers offer the following:
The features of legal writing--here we mean primarily legal drafting--that make it resistant to misinterpretation when read by legal professionals also often make it difficult for those without legal training. This defense rests on the theory that legalese is more precise and less ambiguous than plain English. Modern plain-English experts disagree with this theory. See, for example, Joseph Kimble, The Great Myth that Plain Language is not Precise, 7 Scribes J. Leg. Writing 109 (1998–2000). Kimble believes that legalese often contains so many convoluted constructions and wordy circumlocutions that is it more vague and ambiguous than plain English.
Another defense of legalese is that the need to cover all contingencies overrules brevity.{{{author}}}, {{{title}}}, [[{{{publisher}}}]], [[{{{date}}}]]. Plain-English advocates suggest instead that, first, no document can possibly cover all contingencies and, second, that lawyers should not try to cover all the contingencies they can envision or dream up. Rather, lawyers should draft for the known and reasonably expected contingencies and stop there. On this point, see Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 34 (ABA 2002).
A final defense of legalese is that lawyers, judges, and clients have come to expect it and even prefer it. As for lawyers, it's hard to say. Some may prefer legalese, but many do not. As for judges, the evidence is that most prefer a plainer, clearer style; multiple surveys bear this fact out. And as for clients, this writer[original research?] has never heard clients say they prefer legalese--only lawyers saying that on behalf of clients.{{{author}}}, {{{title}}}, [[{{{publisher}}}]], [[{{{date}}}]].
