TYPES OF LEGAL WRITING- AN OVERVIEW
“The language of law must not be foreign to the ears of those who are to
- Learned Hand
Legal writing combines artistry and wisdom: weaving critical facts into
the fabric of legal theory coupled with knowing the most effective way to
communicate so that the finished product fits the needs of your audience.
We are able to find many basic how-to-books and books that aim to
enhance your brief writing skills or help you
write concisely and accurately. As legal “Wisdom is the right use of
writing is an essential tool that any lawyer knowledge. To know is not to be
has, we have to appreciate that it is very wise. Many men know a great deal
different from writing from an academic and are all the greater fools for it.
point of view. A legal document (E-mail, There is no fool so great a fool as a
plaints, agreements, etc.,) is not something knowing fool. But to know how to
use knowledge is to have wisdom.”
(Charles Haddon Spurgeon, 19th
century English theologian)
that is pleasing to oneself as the author.
Rather, the most important aspect of legal writing, be it an interoffice
memorandum or a brief or a contract or correspondence, is whether the
reader understands what you are saying. Thus, another lawyer in your
Communication experts say office must quickly grasp your objective
effective verbal communication analysis, the court must be persuaded,
your opposing counsel must know your
requires competence, clients’ positions, and your clients must
confidence, and focus. The understand what you are doing to protect
same is true for legal writing as
In contrast to verbal communication, for which, the speaker is necessarily
present during the communication, legal writing must stand on its own and
reflect these qualities to ensure the target audience gets the point.
Competence is knowledge. Confidence is the courage to take that
knowledge and put it into action. Focus is understanding your purpose.
Competence and focus are familiar concepts to practicing lawyers. Sadly,
in India, while the Rules of Professional Conduct do not require advocates
to possess sufficient skill to perform legal services. But in practicality, the
more skilled you are the more clients you would be able to satisfy in the
discharge of your duties. Competence in legal analysis further requires an
ability to perform legal research and use legal authority, whether statutory,
administrative, or common law. Likewise, focus demands to know the
purpose of your writing. However, unlike competence and focus,
confidence is often elusive in the context of legal writing. Brevity
expresses confidence in writing.
“The writer does the most who gives his reader the most knowledge, and
takes from him the least time.”1 Brevity is not about shortness; even
lengthy writings may be brief in expression. Achieve brevity through
1 Charles Caleb Colton (1780–1832) was a British author, clergyman, and art collector
tightly crafted sentence structure, word choice, and organization. Isadora
Duncan has aptly captured the challenge of writing a tightly crafted
sentence when she wrote, “It has taken me years of struggle, hard work
and research to learn to make one simple gesture, and I know enough
about the art of writing to realize that it would take as many years of
concentrated effort to write one simple, beautiful sentence.”2
Direct, tightly crafted sentences that start with the subject followed by a
verb and limit the use of prepositional phrases, adverbs, and dependent
clauses that keep readers on track. Just as speakers who talk in long
wandering sentences laced with comments that veer of the subject matter
and end up facing restless audiences, so, too, do writers who use lengthy,
meandering sentences lose the interest of their readers. Readers will
simply skim over these sentences in search of the point. Like the restless
listener, such readers question the writer’s confidence in the position
For example, the sentence, “Despite the
plaintiff’s ongoing treatment she was receiving Centuries ago, the Greek tragic
dramatist Sophocles aptly wrote,
after the accident from Dr. Prakash, the “Much wisdom often goes with the
plaintiff’s pain did not subside,” can be revised
to say, “The plaintiff’s pain did not subside despite Dr. Prakash’s ongoing
post-accident treatment.” So, too, it is with word choice. Words that are
descriptive and compelling without being sensational are most easily
digested and understood. Flamboyant language that shows the vocabularic
strength has been found to distract readers—whether they are the court,
2 Isadora Duncan: Life and Literary Connections (1877-1927), Carolyn Sinsky,
opposing counsel, or your client. Likewise, words that exaggerate every
point wear down and overwhelm readers. “Present the truth as you see it;
don’t make your readers struggle to find the truth.”3
1.2 LANGUAGE AS A
Amongst all professions, In any legal document words are the most
law is one of the only rudimentary tool that is used to gain an advantage
areas where the or benefit. Therefore, it is of the utmost importance
profession has a direct that words that are used in any legal document
relation with words. Be it
writing or interpreting
must be chosen carefully, be it during court
proceedings or negotiation meetings or drafting of any legal instruments,
such as wills, sale deeds and so on.
As very aptly portrayed, “Law is one of the principal literary professions.
One might hazard the supposition that the average lawyer in the course of
a lifetime does more writing than a novelist.” Another euphuism that again
captures the essence of legal writing: “Language is the lawyer’s scalpel. If
he cannot use it skillfully, he is apt to butcher his suffering client’s case”.
The above quotes, most aptly capture the role of any person who is
engaged in preparing or drafting any form of legal writing. The main
elements that have to be kept in mind are that the person should able to:
3 Nineteenth-century American theologian Tyron Edwards
v Conduct incisive research
v Analyze complex legal problems
v And explain it in plain English.
Elaborate paragraphs and convoluted sentences take too long to read, and
clients would not have the patience to read them or in the worst-case
scenario pay for them. Unnecessarily complex and flowery language while
used in any form of legal writing would lead to misunderstandings because
the content can be hard to understand. Good legal writing is clear, concise
It is pertinent to note that legal writing is “decisional writing”. All the
readers of written legal documents (supervisor, clients, and courts), would
have to sometimes, based on the legal documents presented before them,
be asked to give a decision based on such
documents. While the tone and style of The expectation of the readers is
writing may change depending on the reader, that with the legally written
each one of them wants the person drafting
the legal document to explain to them on how document, a full understanding of
the issue is made out, so as to
assist them in making the relevant
to make that decision keeping in mind the
law in force and the facts of the particular situation/case. Please do keep in
mind that most of the readers in the modern business environment are busy
and in a hurry, without having time to read the writing presented to them
twice. Legal readers are also inherently skeptical because skepticism helps
them to make better decisions. They will look for weaknesses in your
analysis. Also, legal readers have a tendency to be over-critical about
grammar, style and citation errors – all of which can affect your credibility
as a writer.
1.3 STYLES OF LEGAL WRITING
TYPES: PREDICTIVE WRITING: In a predictive form
of writing, the person, as the word suggests, is
All types of legal writing asked to predict the outcome in some way or the
can be differentiated in other, to the best of his/her abilities. As a lawyer,
two types most of them are regularly asked to predict what a
court will do or in the alternative to predict the
1. Predictive Writing fallout of certain actions. For example, if a
2. Persuasive Writing newspaper is going to publish an article which it
thinks may be controversial, it may ask its in-
house counsel as to whether the particular article
is defamatory or not. In the event, the answer is
yes, it may further want the lawyer to advise it on
how to change it. In another example, a person
who might feel defamed by a particular article
may want to seek the advice of the lawyer as to the
chances of success of a suit for defamation against
the newspapers. As seen in the illustrations above,
the responses that the lawyer has given to different
persons/entities would be predicative as they are
predicting the outcome of a situation given the
facts and the law for the time being in force.
In other words, in all the situations the client
TYPES: would rely on a lawyer’s prediction of how a
court would rule. Predictive writing is also
All types of legal writing sometimes referred to as objective writing, but
can be differentiated in objectivity only partly defines the genre. This is
so as any writing that simply describes the law
1. Predictive Writing may be termed as objective. However, predictive
2. Persuasive Writing writing is more than just objective. It foretells or
tries to predict how the court of law would
resolve a particular controversy. This would be
also taking into account many other variable
factors that the lawyer has gained through his
years of experience, such as the attitude of a
particular court towards the case in question or
how interpretations have been made out of a
particular rule of law in question. Predictive
writing takes many forms: office memos either in
length or short; letters to clients; opinions to
clients; email to supervisors, colleagues and
clients. Regardless of the form, these predictions
must provide everything a lawyer needs to
advice a client, plan the next step in the litigation, decide how to structure
a contract and so on and so forth.
PERSUASIVE WRITING: In the persuasive form of writing, the end
goal of the document is very different from that of predictive writing. The
goal of this form of writing is more often to persuade the other party or in
terms of courts, to persuade the court in giving a favorable decision in the
favor of the party employing the means of persuasive writing. For
example: “This case involves the largest punitive damages award ever
upheld by a federal appellate court, $2.5 billion.”4 Persuasive writing
while requiring all the skills needed for predictive writing, in addition also
requires the skills of strategic thinking and the abilities to make persuasive
arguments and most of all to present the client’s side of the case in a
compelling way. Persuasive writing usually takes two forms,
complaints/written statements, appeal briefs and other documents that are
filed in the trial courts/appeal courts to prove ones case.
To persuade a court to make a favorable decision, the writer’s arguments
must be accurate, crisp, specific, reasonable and convincing. In this light,
it is always advisable to anyone drafting the above documents to avoid
unnecessary repetition or irrelevant facts in the brief and to present the
facts in a chronological manner where possible. It is also necessary that the
lawyer drafting the brief outlines his thoughts before undertaking the
drafting, so as to ensure that he has presented the case of his client in the
most distinct and clear method.
Most of the documents that a lawyer would draft would fall into one of the
two categories of writing.
Some examples of other documents that requires the skills of legal
writing can be said to be: contracts, wills, trusts, pleadings, applications,
interrogatories, affidavits and so on.
1.4.1 OFFICE 1.4 TEMPLATES OF LEGAL
From: [Person and/or Department
issuing the memo]
Date: [Date Sent]
Subject: [Subject of the Memo]
[Opening – Get to the point in the opening paragraph. Keep things simple
and short. Make it easy and fast to read.]
[Summary – Summarize any historical or contextual information needed to
support the opening paragraph.]
[Conclusion – End with a call to action.]
CC: [Send copies to anyone affected by the memo.]
Attachments: [List any attachments to the memo. Only list items referred
to in the body of the memo.
Subject – [Clearly state the subject for which you are writing the E-mail
for. In the event of legal mails, also depending on the content being
transmitted, mention, whether it is confidential or not. Ex: [Privileged and
Dear/ Mr/Ms ___________:
[Body] - Your answers to professional emails should be well thought-out
and carefully crafted.
End in a friendly manner by thanking the reader and including your
contact information. Close with the
appropriate formality: Sincerely, Warm
Regards, Very Truly Yours, Cordially, 1.4.2 PROFESSIONAL
Best, etc. Also indicate whether you have EMAIL
included any related documents with
1.5 COMPONENTS OF WRITTEN
There are three main elements to written communication:
• Structuring (the way the content is laid out)
• Style (the way it is written)
• Content (what you are writing about)
A good structure will help you to express yourself more clearly. Some
important points while structuring your agreement may help:
Ø Clarifying your thoughts and the purpose of your communication
before you start writing. In business communications, clarity is more
important than style.
Ø Identify the key points, facts and themes
Ø Decide on a logical order for what you have to say
Ø Compose a strong introduction and ending. The first will make an
immediate and positive impression on the reader; the second will
remain in their mind after they have finished reading. The best way
to make a strong beginning is to lay out the basis of your remainder
of the document briefly in the first paragraph. For example, in the
event you have received a request for a legal opinion on matters
related to a particular law, it would always be best to give a brief
introduction of the law you are about to deal with that is directly
related to the questions asked by the client.
Ø Use short paragraphs and sentences rather than long, rambling ones.
Keep to one idea per paragraph and put your point in the first line,
then add the supporting information.
Ø Help key points to stand out by the use of headings, sub-headings
and bullet points. This will allow your reader to quickly scan your
message for the main points.
It is absolutely essential that one always keeps in mind the audience he/she
is writing for. The writing should be in a style that is appropriate for the
audience. All good communicators think about their readers. Some
important points to remember when drafting a document are as under:
Ø How much information and detail is needed?
Ø Should you use specialist terms or should you “translate” these to
make yourself understood by a generalist reader?
Ø How formal or informal should your writing be?
• A scientific paper aimed at an audience of non-scientists
would have to be written in simpler and less technical
• A report in the Financial Times/Economic would be
written in a very different style from one covering the
same issue in the Hindustan Times.
• A lawyer giving advice to a client would not go into the
same amount of details as to legal precedents and
arguments as a law student would when writing an
• Emails sent with job applications should be treated more
formally than emails to friends and family.
Ø Does it look neat and elegant?
Ø Is it concise, with an exact use of words and economy of
style? The rule to follow is "If in doubt, cut it out!" For example,
instead of saying forward planning, just say planning - there is no
such thing as backward planning! Words such as very, just, quite,
perhaps, maybe and really should all be removed.
These words should be avoided if possible, in every form of
• Just: The word "just" is a filler word that weakens your
writing. Removing it rarely affects meaning, but rather,
the deletion tightens a sentence.
• Really: Using the word "really" is an example of writing
the way you talk. It's a verbal emphasis that doesn't
translate perfectly into text. In conversation, people use
the word frequently, but in written content it's
unnecessary. Think about the difference between sayings
a rock is "hard" and "really hard," for example. What
does the word add? Better to cut it out to make your
• Very: Everything that applies to "really" applies to
"very." It's a weak word. Cut it.
• Quite: When someone uses "quite," he or she either
means "a bit" or "completely" or "almost." Sometimes
the word adds meaning; sometimes it's fluff. Learn to
tell the difference--but, when in doubt, cut it out.
• Amazing: The meaning of "amazing" is causing great
wonder or surprise--but some writers use the word so
often that the meaning gets lost. How can something be
amazing if everything is? Ditch this diluted word.
• Literally: When something is true in a literal sense, you
don't have to add the word "literally." The only reason it
makes sense to use the word is when it clarifies meaning
(i.e., to explain you aren't joking when it seems you are).
• Stuff: Unless you are aiming at informality, don't use the
word "stuff." It's casual, it's generic, and it usually stands
in for something better.
• Things: Writers use the word "things" to avoid using a
clearer, more specific word that would communicate
more meaning. Be specific. Don't tell us about the "10
things," tell us about the "10 books" or "10 strategies."
Specificity makes for better writing.
• Got: Think of all the ways we use the vague word "got"
in conversation: "I've got to go," "I got a ball," or "I got
up this morning." Though it's fine for conversation, in
writing, "got" misses valuable opportunities. Rather than
writing a lazy word, look for clearer, more descriptive
language: Examples: "I promised I'd leave by 9," "I
picked up a ball," or "I woke up today,"
Ø Are the sentences conveying a meaning that is simple, direct and
o For example, a bureaucrat would write: Political organization
administered directly via the populace, intended for the
employment of the general community, on behalf of each and
every one of the citizens of the nation. Abraham Lincoln
wrote: Government of the people, by the people, for the
Ø Are paragraphs too long? Paragraphs of less than 10 lines are easier
Ø Is a blank line left between paragraphs to aid clarity?
Ø Are sentences too long? A sentence should contain just one
idea. Sentences with more than 30 words should normally be split.
Ø Is the first sentence interesting/ Does it draw the reader in?
Ø Have you avoided unnecessary jargon/too much legal terminology?
Ø Is the style suitable for the intended audience?
Ø Are bulleted lists used where appropriate?
Ø Have you used short, concrete, familiar words rather than long,
obscure, complex words? Use the active words where possible rather
than the passive voice? "It is recommended ...." should be replaced
by "We recommend" as this is simpler and more direct
Ø Have you kept wordy phrases to a minimum?
Ø Have you avoided repetition?
Ø Use the Right Format. Format refers to how your correspondence is
laid out on paper or online. Usually, writers choose their formats
based on the method of delivery—letter, memo or e-mail. Each type
has distinct format conventions (guidelines) for including and
placing elements such as the date, addressee, subject line, salutation,
message body, closing line, signature block and company letterhead
or logo. The Plain English Campaign recommends sans serif fonts
(e.g. Arial, Verdana) as being clearer and easier to read than serif
fonts (e.g. Times New Roman, Garamond).
• For formal documents, such as letters and company memos,
use business like serif fonts, such as Times New Roman,
Book Antigua, Garamond or Courier New.
• For less formal documents and e-mail messages, use an
easy-to-read font, either serif (like those fonts just
mentioned above) or sans serif. Good sans serif choices are
Arial, CG Omega, Tahoma, Trebuchet and Verdana.
• Avoid using “social” fonts, i.e., those used for invitations
and restaurant menus, such as Bradley Hand, Monotype
Corsiva, and Pointed Brush, to name a few. Social fonts are
inappropriate for business correspondence because they are
more difficult to read, and they give a visual cue that the
content is not serious or professional.
• Use the font size and text attributes (all caps, bold, italic,
underline) carefully. When the font is too large, the
document may appear juvenile; and when it’s too small, the
document is crowded and hard to read. Use text attributes
only to help emphasize key words. Font size should be
consistent and easy on the eyes.
This forms an essential part of any written let alone a legally drafted
document. Checklist for the way the content is laid out:
Ø Is the layout clear and easy to follow?
Ø Do headings stand out (e.g. are they in a larger font size)?
Ø Is the information arranged in a logical sequence with a beginning
(introduction), middle, and end (conclusion)?
Ø Does the introduction clearly state the subject and purpose?
Ø Does it briefly summarise the content?
Ø Have you thought through in advance what you want to say?
Ø Have you a clear objective?
Ø Have you listed the essential points you wish to make?
Ø Have you made these points clearly?
Ø Have you developed your argument in a logical way?
Ø Have you allowed detail to obscure the main issues?
Ø Is the content positive and constructive?
Ø Have you shown an interest in the reader by writing with warmth,
sensitivity and friendliness?
Ø Have you edited it through several revisions, honing the text until it
is just right?
Ø Have you left it overnight if possible? Your mind will assimilate it
better and you will come back with a fresh view.
Ø Never use a long word where a short one will do.
Ø If it is possible to cut a word out, always cut it out.
Ø Never use the passive voice (e.g. "Bones are liked by dogs") where
you can use the active voice ("Dogs like bones").
Ø Never use jargon if you can think of an everyday equivalent.
Ø Using language with precision
Ø Correct spelling, grammar and punctuation. Use your spell checker
but don’t rely on it completely: a spell-checker failed to pick up the
following error: “I hope to hear from you shortly”. It is always
recommended that you keep on adding correct word meanings to the
dictionary for all the words that the spell check would tag as
incorrect and auto change it to the correct version according to it.
1.6 RULES TO BE OBSERVED IN LEGAL WRITING
For legal drafting/writing, especially persuasive legal writing, a few more
additional rules have to be followed to serve the best interests of your
clients or organization. Each rule will be demarcated for predictive and
persuasive styles of writing for the ease of understanding. Please note that
the rules need not be followed blindly. The aim of legal writing is to state
what one wants to communicate as briefly and clearly as possible. The
rules are as under:
In all writing, the first rule is to know
RULE 1: KNOW YOUR your audience. If you are
AUDIENCE [Predicative & communicating to a court, know the
court—be familiar with the local rules
and practices, the members of the court, and preferences of those
individuals. The first question is all writing is: For whom are you writing?
Are you writing a brief for an appellate court, a trial brief, an opinion letter
to in-house counsel, an opinion letter to a highly knowledgeable layperson,
or an unsophisticated client?
If the judge is an expert on the law on your issue, then the facts are all the
judge should need to process the argument, the facts become most
important. If you are before a brand-new judge who practiced property law
for twenty years, then you will probably assume that the judge’s
knowledge of the law of your trademarks case might be less. Then, your
brief should contain a more fundamental discussion of the law.
If you are to persuade a judge to rule in your favor, or an adversary’s
lawyer to pay you money or demand less money, you want to be
persuasive. And the most important step in persuasion is communicating
clearly what it is you are trying to
persuade the other person to do.
One has to always remember that legal RULE 2: CONTEXT BEFORE
documents are to educate the reader as DETAIL [Predicative &
to what is coming. Put the important
material up front. Readers understand much more easily if they have a
context. Because readers understand new information in relation to what
they already know, tell them a piece of new information that relates to
their presumed knowledge. Then, build on that information with each new
piece you add.
In court cases, one has to first, ask oneself how much the audience already
knows about the facts and the law of your case. The answer is that the
judge knows very little about the facts of your case. You have lived with
your case for perhaps years, but the judge knows only what it set out in the
pleadings until you explain what happened.
Strive to explain the case in a way that an average person can understand
it. This is not always possible, but it should be your goal. Judges and
lawyers are generally sophisticated readers, and can understand difficult
prose if given enough time. But why would you want to make it difficult?
Each extra step the reader must make in deciphering the facts of your case
or the theory of your argument distracts from the force of your
presentation. Make it easy for the reader.
Explain your case in the first two or three pages. If you cannot explain the
essence of the dispute in three pages, you probably already have lost your
first and best chance to keep the reader’s attention. Have a non-lawyer
read your fact statement and see if that reader can tell you what the case is
You must build a container or in other words, a context in the reader’s
mind, so when you pour in the facts and law of your case, the reader has
the container to hold the information.
How do you read legal opinions? Too often, we have to skip to the end to
find out what happened. A legal opinion should be written so that the first
paragraph or two tells you what the opinion is about and the prediction as
regards the outcome.
RULE 3: FRAME THE ISSUE IN The most important part of your
FEWER THAN 75 WORDS plaint/written statement or appellate
brief, or even of a
[Mostly in persuasive writing]
memorandum/opinion to another
lawyer/client, is framing the issue. What is the question you are trying to
answer for the court or the other lawyer/client? What do you want the
court to decide?
Do not start writing your brief or memo until you have a succinct
statement of what the case is about. And you must do this in 50-75
words. If you can’t explain the case in 75 words, you do not understand it
very well, and neither will your reader.
Put your issue statement right up front, preferably in the first paragraph of
your brief or memo. A short, plain statement of the issue tells the reader
what the case is about, and provides context for your discussion that
Remember that you have already put the RULE 4: STATE THE FACTS
issue up front in 75 words or less. Then in CLEARLY [Mostly in
your facts statement, you have to explain the persuasive writing]
You have already told the reader what the issue is and generally what kind
of case it is in your 75 words statement. Then expand on that. After you
have done your short statement of facts, you weave them into the
discussion section of your opinion and one can add and expand there if one
needs to. Your first statement is to give context, a roadmap.
Be concise. The fewer the words, the more memorable the point.
RULE 5: AVOID OVER There is nothing wrong with stating the
CHRONICLING [Mostly in facts in chronological order. Your
initial outline of the case should list all
dates. But when you write your brief or
memo, do not fall into the habit of starting every sentence with a date.
Avoid over chronicling. Too many plaints start out by reciting a
chronology of facts: “On March 23, 2014, this happened, then on May 6,
2014, this happened.” This approach confuses the reader because then the
reader does not know what facts are important, and what, if any, dates the
reader should remember. As a general rule, most dates are not important.
Unless an exact date is important, leave it out. Instead, tell the court what
the case is about and only the material
facts, and why they are important.
Headings tell the reader what is RULE 6: HEADINGS SHOULD
coming. If possible, headings should INFORM [Predicative &
convey information. “Facts” conveys
nothing. “The Fire and Aftermath” tells the reader the nature of the facts
that are coming. Headings are signposts that guide the reader. If the legal
argument portion of your opinion is five pages, you may not need to break
it up; but if it is longer, separate it into numbered headings.
Headings do not just give context, they also signal the reader when to
safely take a break. The reader needs breaks in digesting the complex
material. Separate the parts—and subparts into headings.
RULE 7: WRITE SHORT Short paragraphs give the reader a
PARAGRAPHS [Predicative & chance to pause and digest what has
gone before. If you put three or four
sentences with new information in each paragraph, that is enough.
And remember each new piece of information should build on the old.
You have probably seen where paragraphs are diagramed so that each
sentence refers back to something in the last sentence. That is called
building on context—building on prior knowledge. We will talk a bit more
about sentence length and structure later.
Obviously, the substance of the case is RULE 8: FORM IS
most important—but to communicate IMPORTANT—MAKE IT LOOK
the substance, use the best form
possible. GOOD [Predicative &
It is so much easier nowadays to make the document look good. Always
use a serif type for text—because the serifs direct the reader’s eyes to the
next letter. Times New Roman is the standard now. Use it, or a similar
typeface. A non-serif or sans serif type is good for headings because it
directs the reader’s eyes downward to the material following the heading.
Ariel is a common sans-serif type.
RULE 9: CHECK YOUR Check every page of every paper that
DOCUMENT CAREFULLY leaves your desk. Should we really
[Predicative & Persuasive]
have to make this into a rule? I think
so. It is a common oversight that documents are provided where the pages
are upside down or are in a wrong order or there are missing pages/blank
pages. Checking before it is sent to the client/filed in court. Always do
remember mistakes can always happen
The page limit is your friend; it RULE 10: KEEP IT SHORT:
requires you to refine your argument. THE PAGE LIMIT IS YOUR
You must strive to write briefly and
clearly. It is much harder to write a FRIEND [Predicative &
short brief than a long one. Too much space is a temptation to write all (or
more than) you know about the subject. Make every word count, and your
document will be much more convincing the reader might think that you
know more than you wrote, not less.
If something is important enough to be
RULE 11: USE NO TALKING in a footnote, it is important enough to
FOOTNOTES [Predicative & be in the text. Footnotes detract from
readability. Don’t let footnotes swallow
the page from the bottom, as in a law review article. Your goal is to
communicate not to distract the reader from the points that you have
mentioned in your draft legal document.
The only proper use for footnotes in legal writing is to give citations,
rather than having citations in the middle of a sentence. Proper use of
footnotes is for reference only. If something is truly parenthetical, but you
believe it needs to be mentioned, use parentheses.
Cluttering up your document with RULE 12: CITATIONS GO IN
jumbles of letters and numbers makes FOOTNOTES [Predicative &
it almost totally unreadable. This
practice should cease, especially now Persuasive]
that footnoting references are simple.
Citations belong in footnotes. You will be amazed at the increased
readability. But make sure you put only citations in footnotes; that is, no
“talking footnotes.” The reader must know that she does not need to read
the footnotes they are for reference only. Then, the constant glancing up
and down is not necessary.
RULE 13: EDIT, EDIT, EDIT Edit, edit, edit, and edit again. Typos,
[Predicative & Persuasive] bad grammar, and misplaced
paragraphs (which were not such a
problem before computers) simply take away from your argument. Keep a
copy of a good dictionary for Modern Legal Usage terms which would
provide you with answers to grammar, syntax, and punctuation questions.
With new technology always comes new pitfalls—following the
“spellcheck” or “grammar check” blindly leads to some weird words and
constructions. It is important to read every word. Spellcheck can substitute
wrong words—spelled correctly, but not what you mean. You may mean
“constitution,” but spellcheck reads it as “constipation.”
Do not finalize any document before going over every single word.
Write short, crisp sentences. What is RULE 14: WRITE SHORT
the most underused punctuation mark SENTENCES [Predicative &
in legal writing? The period. The most
overused is easy—the comma. More
periods, fewer commas—sentence length should average no more than
twenty words. Eighteen is better. Word processors have that feature.
Long sentences are especially difficult when strung together. Sophisticated
readers can understand longer sentences if they are properly constructed.
No one can wade through ten in a row. Break up the pace, follow a longer
sentence with a short one. Readability is the goal.
RULE 15: USE MAINLY Passive voice is not forbidden.
ACTIVE VOICE [Predicative & Sometimes you do not need to name
the actor. For example: “Many books
on this subject have been published.”
Or a smooth transition from one sentence to the next requires you to put
the subject first. Cut down on passive voice and nominalization. If there is
no good reason, put your sentence back the way real people would talk.
Use “that” restrictively, and “which” non- RULE 16: DISTINGUISH
restrictively. (In British English, which is used BETWEEN “THAT” AND
both ways.) The easy way to remember— “WHICH” [Predicative &
which is preceded by a comma; that is not.
RULE 17: USE THE DASH, Though you should avoid cluttering up
PARENTHESIS, AND COMMA your document with too many
FOR DEGREES OF EMPHASIS incidental comments, sometimes they
[Predicative & Persuasive] fit nicely. A dash provides the greatest
emphasis—it is a stronger break—next
in degree is the parenthesis, then the
Do not use two or three or four words for one
(“devise and bequeath”; “grant, bargain, and RULE 18: ONE WORD IS
sell”; “right, title, and interest”; “make, ordain, USUALLY ENOUGH
[Predicative & Persuasive]
constitute, and appoint”). A related tendency
of lawyers is to use many words when one is more understandable
(“sufficient number of” = enough, “that point in time” = then, “for the
reason that” = because).
Many judges and clients find the
RULE 19: NO practice of spelling out numbers and
PARENTHETICAL NUMERICAL then attaching parenthetical numerical
[Predicative & Persuasive]
quite irritating. This was done when
scribes used quill pens to copy documents. The real reason for this is to
prevent fraud, by making it difficult to alter documents. An opinion that
states “There were two (2) defendants and three (3) police officers
present” is extremely hard to read.
The reader is confused by nouns acting RULE 20. HYPHENATE
as adjectives, or two adjectives together PHRASAL ADJECTIVES
modifying one noun. Always hyphenate [Predicative & Persuasive]
phrases like “wrongful-discharge suit,”
or “public-policy exception.”
In a list of three or more, always insert
RULE 21. USE THE SERIAL the serial comma. Some writers insist
COMMA [Predicative & on omitting the last comma, before the
“and.” Do not omit the last comma—
doing so can cause misinterpretation.
Cut the useless preambles. Unnecessary RULE 22. AVOID
preambles can weaken or hide the point UNNECESSARY PREAMBLES
they introduce. Some unnecessary [Predicative & Persuasive]
ü It is important to add that . . .
ü It may be recalled that . . .
ü In this regard, it is of significance that . . .
ü It is interesting to note that…
RULE 23: USE QUOTATIONS You should explain how the cited cases
SPARINGLY [Predicative & support your theory of the case. Do not
use lengthy quotations—a few lines at
No one reads long block quotes. People skip that single-space block and
go on. Unless the case you are quoting from is exactly on point (which is
very seldom true), just quote the most relevant and persuasive part. And do
it in the text if you can. No matter how long. Just remember, long blocks
are not read.
Lead into the quote with your paraphrase of what the quote says. The
reader will actually read it to see if you
are telling the truth.
Use persuasive language. If you can’t RULE 24: USE PERSUASIVE
explain your case, how can you expect LANGUAGE [Only in
the readers to understand it? Similes or
metaphors are very effective to illustrate your analysis.
RULE 25: CONTINUE YOUR Continue your research! You might file
RESEARCH [Only in a plaint or brief months before it is
persuasive writing] argued before the court. Check every
citation periodically, and again the day
before the case is argued. It has happened more than once that a new
Supreme Court case has appeared in the interim.
1.7 EXAMPLES OF WORDS THAT CAN BE
NOT PREFERABLE PREFERRED
the means by which how
entered a contract to contracted
filed a counterclaim counterclaimed
filed an application applied
adequate number of enough
for the reason that because
in the event of if
in light of the fact that because
notwithstanding the fact although
cause of action to
in order to now
at this point in time until
until such time as usually
whether or not whether in May
during the month of May by
by means of five miles
as a consequence of later
a distance of five miles
NOT PREFERABLE PREFERRED
made a complaint complained
a period of a week a week
made an application applied
made a provision provided
it is contended by the plaintiff contends
with regard to with
in connection with searched
performed a search on either one
each and every respond
provide responses testify
offer testimony ask
make inquiry help
provide assistance limit
place a limitation upon examine
make an examination of protect
provide protection to resembles
reach a resolution identify
bears a significant mentions
reveal the identity of allege
makes mention of
are in compliance with