legal writing
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.
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. 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. Different methods may be used on other countries.
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 templates or, less commonly, 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 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- Archaic vocabulary: legal writing employs a fairly large number of outdated words and phrases that were formerly part of everyday language but are today rare except in law. Some date from the 1500s. Most are long-abandoned outside the law. Some English examples are herein, hereto, hereby, heretofore, whereas, whereby, and wherefore ; said and such (as adjectives).
- Loan words and phrases from other languages: In English, this includes 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). These 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 bring to legal writing a high level of formality. The resort to authorities that were created long ago can lead lawyers to follow 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. Many law schools teach writing in this classical, formal, and sometimes overcomplex manner, which has allowed this style to continue.
However, in recent years, there has been a movement away from classical legal writing, towards a more reader friendly and concise
method of conveying ideas. While legal vocabulary and sometimes verbose sentences make legal writing a difficult read for
non-attorneys, there are in many cases necessary. The primary purpose of legal writing is to provide a thorough and precise
document to serve a need for formal documentation. By following the tried and true path of formal legal writing, a document will
leave very little to interpretation. Using a less formal, more reader friendly format makes it more difficult to ensure the
document is clear cut in its intentions.
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 predictive 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 1. predictive analysis, i.e. a memorandum that predicts an outcome for a client whether positive or negative; and 2) persuasive analysis, including motions and briefs. Although not as widely taught in law schools, legal drafting courses exist and are expanding. Other types of legal writing courses focus on writing appellate documents or on interdisciplinary aspects of persuasion itself.
Predictive legal analysis
The legal memorandum is the most common type of predictive legal analysis, but this type may also include the client letter or legal opinion. The legal memorandum predicts the outcome of a legal question by analyzing the authorities that govern the question and the relevant facts related to the rise of the legal question. The memorandum explains and applies the authorities so as to predict an outcome, and it ends with offers of advice or with 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.
Plagiarism
In preparing an objective analysis or a persuasive document, lawyers generally operate under the same
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.
Legalese
Legalese is an English term first used in 1914[1] for legal writing that is difficult for nonlawyers to understand. The term has been adopted by other languages.[2][3] Legalese is legal writing that is characterized by 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 Language 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.[4] 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.[citation needed] Plain-English advocates suggest instead that, first, no document can possibly cover all contingencies and that, second, 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.[citation needed] As for lawyers, some may prefer legalese, but many do not. As for judges, the evidence is that most prefer a plainer, clearer style; multiple surveys have confirmed this.[citation needed]
A final defense of plain-English finds the majority of large English-speaking states are democratic republics where the sovereigns are the people who must be able to understand the laws if they are to enforce them.
For a humorous example of non-legalese, see the Interactive EasyFlow software license & disclaimer excerpts.
References and further reading
- International Legal English, written by Amy Krois-Lindner and TransLegal, is a coursebook for Cambridge ESOL’s International Legal English Certificate.
- Bryan Garner’s Dictionary of Modern Legal Usage (Oxford University Press) is regarded as an authoritative guide to legal language, and is aimed at the practising lawyer.
- Peter Butt and Richard Castle’s Modern Legal Drafting is a reference book aimed at the practising lawyer.
- Legal English (2004) by Rupert Haigh and published by Routledge.
- ELS: English for Law Students written by Maria Fraddosio (Naples, Edizioni Giuridiche Simone, 2004) is a course book for Italian University Students.
- The Oxford Handbook of Legal Correspondence (2006) by Rupert Haigh and published by Oxford University Press.
- For a humorous perspective on legal writing, see Daniel R. White's Still The Official Lawyer's Handbook (NY: Plume/Penguin 1991), Chapter 13, pp. 171-176, especially its notorious riff on how a lawyer might edit -- and torture -- the phrase "The sky is blue" (pp. 172-174). Similarly, see Professor Fred Rodell's "Goodbye to Law Reviews," whose opening lines contain the classic statement of the problem: "There are two things wrong with almost all legal writing. One is its style. The other is its content." (This and other articles are collected in Trials and Tribulations -- An Anthology of Appealing Legal Humor, edited by Daniel R. White (NY: Plume/Penguin 1991), p. 241.
See also
References
- ^ [http://www.etymonline.com/index.php?term=legal}
- ^ [1]
- ^ http://tur.proz.com/kudoz/1551838
- ^ {7 Scribes J. Leg. Writing 109 (1998–2000)}
External links
- [http://www.plainenglish.co.uk/ Plain English
- [2] Legal Writing Institute. The umbrella organization for professionals interested in teaching and learning legal writing.
- An advocate for simplification of legal terminology offers a table of legalese words and suggested replacements
- Plain.Language.com
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