The Purpose of Legal Writing
The distinct nature of legal writing lies in its precision and the structural conventions that govern it. Unlike creative writing, where authors can express their thoughts with relative freedom of style, tone, and structure, legal writing is characterized by constraints that derive from the nature of legal material itself. Legal writing is seldom subjective and once an issue is settled by authority, a subject matter is not revisited unless with some risk of editorial rebuke. So because the language of legal writing must be so prescribed, legal writing tends to rely heavily on the use of legal phrases and formal expressions to permit the functional elucidation of legal material. It can be said that one of the indispensable characteristics of legal writing is to be concise since legal matters are normally too technical for the uninitiated to fathom without excessive explanatory elaboration. Further, there may be a specific juristic purpose for which the law requires certain matters to be communicated in a certain way . For example, a contract has to be in writing to be enforceable, as to be adopted as evidence, certain public and private letters might have to be endorsed and as to be valid, certain legal instruments such as a Last Will or a Deed of Cession, by their very nature, must satisfy certain specific technical requisites. Even more, for such legal documents, the law suggests the use of certain specific words of art that cannot be easily equated with synonyms without compromising the intended legal meaning. It is this particular quality of legal writing which may make the task of writing all the more difficult for a student wishing to try his hand at law. To further complicate matters, it is a fact that there are very few persons with the aptitude and academic expertise to train the aspiring legal writer. Legal writing, therefore, becomes a task for the fledgling lawyer or law student to venture forth into the unknown armed with nothing by their solid legal knowledge and their resolve to find the truth!
The Importance of Analysis in Legal Writing
For any lawyer who is able to avoid a malpractice claim, analysis is as important as the ability to write a sentence. The legislative history and the words of those who wrote the laws will not convince a judge of the correct reading of a statute or a rule. Instead, the most important factor in an attorney’s success is the ability to analyze the law and the facts, and then persuade a judge or jury of the correct application of law to the facts.
Unlike sentence writing, there are no rules for analysis. There is no Blue Book- you simply cannot cite to a case in order to show that your opponent’s argument is invalid. A lawyer may have read every single case decided on a topic and laid out every possible argument, but in the end what is really important is whether each of those cases mean the same thing and whether they apply to the current situation.
When presenting a case, an attorney must argue for a particular interpretation of a law. The attorney has to be able to justify the specific interpretation they are arguing by showing that it is the most likely result. The judge has to be convinced that the rule as argued is the correct one, and the opposing party’s argument is not. Therefore, the question of analysis pervades every part of writing.
If your writing shows that you do not understand the law as thoroughly as your opponent, then the judge may choose the opposite side even if the written case is not as elegantly written. It is not even uncommon for the opposing party’s licensed attorney to lose his license after not submitting a writing which is as persuasive as the opposition’s.
This is the reason young lawyers often welcome the opportunity to write- the more a young attorney is able to write, the easier it becomes for them to prove that they understand the law. When they are given the chance to write, they will readily accept the chance.
Key Aspects of a Legal Analysis
At the heart of legal writing is legal analysis. To excel in law school and, later, as a practicing lawyer, mastering legal analysis is essential. It is our hope that the steps involved in effective legal analysis will become second nature to you so that each time you assemble anything that resembles an argument for a law school class, for a memo, for a brief, even for an email, you are applying a uniform process both in your own mind and to the end product as a whole.
As with any complex process, identifying all of the components may appear to be overwhelming, but the essence of legal analysis can be broken down into at least these four parts:
Fact gathering is at the center of the legal analysis process. Without both the factual background and the rules, the process cannot even begin. For the student or practitioner, fact gathering means sorting through the mass of information before you, finding out which pieces of information are significant for a particular purpose, and putting them in some meaningful order. For example, in a torts problem involving auto negligence, these tasks may include the following piece analysis: gathering information about what actually happened in the accident; what was the speed, the visibility, the weather, the conditions of the roads; were there any witnesses and, if so, what did they see; what were the passengers doing; what was the driver of each car doing in the moments leading up to the accident; how serious are the injuries claimed by the plaintiff; from whom was the plaintiff going to the hospital; what doctors were treating him; what tests did they do and what were the results.
Once a set of facts is known and understood, the next step is organizing them into a logical order that reflects their relative importance and significance to the problem under discussion. For example, in a torts problem, the facts might be organized by party. The plaintiff’s side would lay out what happened from the point of view of the plaintiff. The defendant’s side of the problem would lay out the facts as seen from the defendant’s side. Or the facts could be laid out in chronological order. Seeing the facts lined out in one way or another helps to clarify the elements of the problem that need to be addressed.
The rule is the key to analysis. In order truly to analyze a situation, you must apply the rule—assuming that the facts as laid out meet the prerequisites of the rule and that the rule applies to the facts. You rule out whether a particular issue is important to the problem. An issue will not be important or worth worrying about unless the rule has teeth and the rule has teeth only if the answer to the situation in question is not clear or obvious. To analyze effectively, the problem must be seen as one for which a correct answer needs to be found rather than one for which there really can be only one answer.
This is the time for the qualitative judgment to take place. The whole process of legal analysis exists to produce a conclusion. The ultimate purpose of legal analysis—and indeed much of the whole art of being a lawyer—is to find a solution to a problem.
Methods to Enhance Legal Writing Skills
One way to improve your legal writing is to treat it like a puzzle. Find the pieces that make your point and fit them together in a cohesive manner. The first step in fitting the pieces together is to determine what the main point of your writing is. Take a piece of paper or open a new text document and write down the main point. The purpose of writing it down is to ensure that you follow this single point through the rest of your writing. If a sentence or paragraph does not contribute to your main point then delete it. The organization of your writing naturally flows from your main point. Each paragraph is dedicated to a single point related directly to your main point. For example, if your main point is that David’s car accident was not his fault then each paragraph discusses a reason why the car crash was not David’s fault. Choosing the main point of your writing directs your thought process and keeps your writing focused. Establishing a clear train of thought within a single paragraph is just as important as establishing a main point. Find the primary idea within the paragraph and write it down. Then add in subpoints that support your primary idea. Listing your points can take one of several different formats including , bullets, numbers or letters. No matter which format you chose, the important thing is that you have an organized approach. Once you have established the thoughts within a paragraph you should go through and rewrite the sentences, maintaining the same thoughts and flow of sentence but ensuring that your sentences are concise and have no extraneous information. The third key element in improving your writing is to edit your work. Finding errors in your writing is difficult so a good practice is to set your writing aside for a period of time then read it again with a fresh set of eyes. Good editing practices include eliminating unnecessary or overly long sentences, typos, and awkward or incorrect phrases.
Common Pitfalls in Legal Composition
Common Challenges in Legal Writing
As with any other type of writing, issues often arise as you prepare a legal document. Some of the challenges that often come into play involve the types of words you use and the tone you take. Here are some common challenges associated with legal writing and analysis, as well as tips on how to overcome them:
Overuse of Jargon:
Lawyers have their own vocabulary, just as professionals in any industry do. The problem is, those outside of the industry cannot possibly understand industry lingo, such as "undifferentiated assets," "adverse action," or "material fact." Industry jargon is an obstacle to clear legal writing. The best way to avoid excessive lingo in post is to consider your audience when writing and the words you use. In most cases, avoid lingo unless it is absolutely necessary for your writing. If you can replace a legal term with a clearer, more concise word, do so.
Objectivity:
When it comes to writing legal documents, objectivity is incredibly important. Since you are required to look at the case "through your client’s eyes," clients who read your documents should be able to tell where you stand. However, if you get too personal, your content will lose its factual focus. Rather than allowing your personal opinion to sway your writing, present the facts and analysis objectively.
Ambiguity:
In law, clarity is crucial. This means you shouldn’t be ambiguous in your writing. While some legal writers feel ambiguity creates discretionary power, the truth is judges may be reluctant to exercise discretion in such vague circumstances. Avoid ambiguity by being precise and limiting the number of alternatives you present. Consider the heading of your document and make the content simple and direct so the reader knows exactly what the document entails.
The Intersection of Technology and Legal Writing
The legal landscape is evolving rapidly with the advent of technology’s impact on the profession. Change and technology are a constancy of our world today; yet, there are forces that are at work to ensure that a lawyer’s role remains intact. Those forces are those that are changing how lawyers and non-lawyers interact with information, who includes legal scholars, academics and law professors. Legal writing and analysis are issues where we see this continuing evolution.
Increasingly attorneys are accessing resources online to research specific topics of law, for instance Westlaw and LexisNexis. In fact, there are many more available through different universities, law schools and institutions, including Seyfarth Shaw. All of these sites provide their members with virtual copies of reported opinions, briefs, motions, meditations and settlements, etc., which a lawyer can access and download any where in the world over the Internet. Researching on the Internet and the availability of electronic information have forever changed the way we write and research.
More recently, artificial intelligence (A.I.) has already permeated the industry. A.I. and "robotlawyers" have emerged online, and blogs like Ross Intelligence, Eclipse Law, Lex Machina, Casetext and Bloomberg, to name but a few, are providing firms with free access to peer-reviewed research papers and articles , all designed to make it easier to tap into for relevant information. While each of these programs is designed somewhat differently, they all share common features: A search bar with potential keywords; a search database; and, a listing of sources, including judicial opinions and, sometimes, newspapers, law reviews and other publications.
A hallmark of being an attorney is strong writing skills, and this is where technology has certainly impacted the industry. Most firms comprise attorneys from different backgrounds, cultures and experiences. A writing solution like Practice Al can help firms develop and execute better firm-branded content practice, beginning from their first draft through to the publishing process, while other players, like Wordrake, become a second set of eyes and ears, in essence, a friend that helps polish their documents.
There are also active technical tools that assist attorneys in drafting and publishing content that accurately captures and represents the firm’s voice. Frank Li at Robots & Writing describes one such tool, Write[sic], as a system that generates contract drafts consistent with the user’s style and vocabularies, which simply gets smarter with every contract drafted.
The future is now, and lawyers adapting will be well prepared to succeed in the ever-changing landscape.