Module 1

MODULE 1
STRUCTURE AND STYLE OF LEGAL WRITING

“The language of law must not be foreign to the ears of those who
are to obey it.”
- Learned Hand

1.1 INTRODUCTION

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 writing is an essential tool

that any lawyer has, we have to appreciate that it is

very different from writing from an academic point of “Wisdom is the right use of knowledge.
view. A legal document (E-mail, plaints, agreements, To know is not to be wise. Many men
etc.,) is not something that is pleasing to oneself as know a great deal and are all the greater
the author. Rather, the most important aspect of legal fools for it. There is no fool so great a fool
writing, be it an interoffice memorandum or a brief or as a knowing fool. But to know how to
a contract or correspondence, is whether the reader use knowledge is to have wisdom.”
understands what you are saying. Thus, another (Charles Haddon Spurgeon, 19th century

lawyer in your office must quickly grasp your objective English theologian)

analysis, the court must be persuaded, your opposing

counsel must know your clients’ positions, and your

clients must understand what you are doing to protect their interests.

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

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writing. However, unlike competence and focus,

Communication experts say effective confidence is often elusive in the context of legal
verbal communication requires writing. Brevity expresses confidence in writing.

competence, confidence, and focus.

The same is true for legal writing as “The writer does the most who gives his reader the

well. 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 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 taken.

For example, the sentence, “Despite the plaintiff’s ongoing

treatment she was receiving after the accident from Dr. Centuries ago, the Greek tragic

Prakash, the plaintiff’s pain did not subside,” can be dramatist Sophocles aptly wrote,
revised to say, “The plaintiff’s pain did not subside despite “Much wisdom often goes with the
Dr. Prakash’s ongoing post-accident treatment.” So, too, it
fewest words.”

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, 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 Charles Caleb Colton (1780–1832) was a British author, clergyman, and art collector
2 Isadora Duncan: Life and Literary Connections (1877-1927), Carolyn Sinsky,
http://modernism.research.yale.edu/wiki/index.php/Isadora_Duncan
3 Nineteenth-century American theologian Tyron Edwards

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1.2 LANGUAGE AS A PROFESSIONAL TOOL

In any legal document words are the most rudimentary tool

Amongst all professions, law that is used to gain an advantage or benefit. Therefore, it is of
is one of the only areas the utmost importance that words that are used in any legal
document must be chosen carefully, be it during court
where the profession has a proceedings or negotiation meetings or drafting of any legal
direct relation with words. Be instruments, such as wills, sale deeds and so on.
it speaking, reading, writing

or interpreting them.

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:

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 and precise.

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 writing may change depending on the reader, each

one of them wants the person drafting the legal

document to explain to them on how to make that

decision keeping in mind the law in force and the facts The expectation of the readers is that
of the particular situation/case. Please do keep in mind with the legally written document, a
that most of the readers in the modern business full understanding of the issue is made
environment are busy and in a hurry, without having out, so as to assist them in making the

time to read the writing presented to them twice. Legal relevant decisions.

readers are also inherently skeptical because skepticism

helps them to make better decisions. They will look for

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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 asked to predict the outcome
All types of legal writing can in some way or the other, to the best of his/her abilities. As a
be differentiated in two lawyer, most of them are regularly asked to predict what a
types court will do or in the alternative to predict the fallout of
certain actions. For example, if a newspaper is going to publish
1. Predictive Writing an article which it thinks may be controversial, it may ask its
2. Persuasive Writing 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 would rely on a
lawyer’s prediction of how a court would rule. Predictive
writing is also sometimes referred to as objective writing, but
objectivity only partly defines the genre. This is so as any
writing that simply describes the law may be termed as
objective. However, predictive 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

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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.

TYPES: PERSUASIVE WRITING: In the persuasive form of
writing, the end goal of the document is very different
All types of legal writing can from that of predictive writing. The goal of this form
be differentiated in two of writing is more often to persuade the other party or in
types terms of courts, to persuade the court in giving a favorable
decision in the favor of the party employing the means of
1. Predictive Writing persuasive writing. For example: “This case involves the
2. Persuasive Writing 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.

4 https://www.azag.gov/sites/default/files/DDWCLEFINAL.pdf
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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 WRITING:
MEMORANDUM
Memorandum

To: [Audience]
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.] 1.4.2
Attachments: [List any attachments to the memo. PROFESSIONAL
Only list items referred to in the body of the
memo.] EMAIL

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 Confidential- Subject]

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Dear/ Mr/Ms ___________:

[Salutation]

[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,
Best, etc. Also indicate whether you have included any related documents with your
correspondence.

1.5 COMPONENTS OF WRITTEN COMMUNICATIONS

There are three main elements to written communication:
Ø Structuring (the way the content is laid out)
Ø Style (the way it is written)
Ø Content (what you are writing about)

1.5.1 STRUCTURING

A good structure will help you to express yourself more clearly. Some important points
while structuring your agreement may help:

v Clarifying your thoughts and the purpose of your communication before you start
writing. In business communications, clarity is more important than style.

v Identify the key points, facts and themes

v Decide on a logical order for what you have to say

v 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.

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v 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.

v 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.

1.5.2 STYLE

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:

v How much information and detail will they need?

v Should you use specialist terms or should you “translate” these to make yourself
understood by a generalist reader?

v How formal or informal should your writing be?

For example:

• A scientific paper aimed at an audience of non-scientists would have
to be written in simpler and less technical language.

• 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 academic essay.

• Emails sent with job applications should be treated more formally
than emails to friends and family.

v Does it look neat and elegant?

v 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.

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These words should be avoided if possible in every form of writing:

• 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 message stronger.

• 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,"

v Are the sentences conveying a meaning that is simple, direct and lucid?
For example, a bureaucrat would write: Political organization administered
directly via the populace, intended for the employment of the general

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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 people.

v Are paragraphs too long? Paragraphs of less than 10 lines are easier to read.

v Is a blank line left between paragraphs to aid clarity?

v Are sentences too long? A sentence should contain just one idea. Sentences with
more than 30 words should normally be split.

v Is the first sentence interesting/ Does it draw the reader in?

v Have you avoided unnecessary jargon/too much legal terminology?

v Is the style suitable for the intended audience?

v Are bulleted lists used where appropriate?

v 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

v Have you kept wordy phrases to a minimum?

v Have you avoided repetition?

v 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.

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• 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.

1.5.3 CONTENT

This forms an essential part of any written let alone a legally drafted document. Checklist for
the way the content is laid out:

v Is the layout clear and easy to follow?

v Do headings stand out (e.g. are they in a larger font size)?

v Is the information arranged in a logical sequence with a beginning (introduction),
middle, and end (conclusion)?

v Does the introduction clearly state the subject and purpose?

v Does it briefly summarise the content?

v Have you thought through in advance what you want to say?

v Have you a clear objective?

v Have you listed the essential points you wish to make?

v Have you made these points clearly?

v Have you developed your argument in a logical way?

v Have you allowed detail to obscure the main issues?

v Is the content positive and constructive?

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v Have you shown an interest in the reader by writing with warmth, sensitivity and
friendliness?

v Have you edited it through several revisions, honing the text until it is just right?

v Have you left it overnight if possible? Your mind will assimilate it better and you will
come back with a fresh view.

v Never use a long word where a short one will do.

v If it is possible to cut a word out, always cut it out.

v Never use the passive voice (e.g. "Bones are liked by dogs") where you can use the
active voice ("Dogs like bones").

v Never use jargon if you can think of an everyday equivalent.

v Using language with precision

v 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 your

RULE 1: KNOW YOUR AUDIENCE audience. If you are communicating to a court,
[Predicative & Persuasive] 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?

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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 DETAIL
documents are to educate the reader as to what [Predicative & Persuasive]
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 about.

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.

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RULE 3: FRAME THE ISSUE IN FEWER The most important part of your
THAN 75 WORDS [Mostly in plaint/written statement or appellate brief, or
persuasive writing] even of a memorandum/opinion to another
lawyer/client, is framing the issue. What is the
the court to decide? question you are trying to answer for the court
or the other lawyer/client? What do you want

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 follows.

Remember that you have already put the issue up front RULE 4: STATE THE FACTS CLEARLY
in 75 words or less. Then in your facts statement, you [Mostly in persuasive writing]
have to explain the case totally.

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 CHRONICLING There is nothing wrong with stating the facts in
[Mostly in persuasive writing] 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

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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 coming. If

possible, headings should convey information. RULE 6: HEADINGS SHOULD INFORM

“Facts” conveys nothing. “The Fire and [Predicative & Persuasive]

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 PARAGRAPHS Short paragraphs give the reader a chance to
[Predicative & Persuasive] 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 most

important—but to communicate the substance, RULE 8: FORM IS IMPORTANT—
use the best form possible. MAKE IT LOOK GOOD [Predicative &

It is so much easier nowadays to make the Persuasive]

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 DOCUMENT 15
CAREFULLY [Predicative &
Persuasive]

Check every page of every paper that leaves your desk. Should we really 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 requires you to RULE 10: KEEP IT SHORT: THE PAGE
refine your argument. You must strive to write LIMIT IS YOUR FRIEND [Predicative &
briefly and clearly. It is much harder to write a
short brief than a long one. Too much space is a Persuasive]

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 in a

RULE 11: USE NO TALKING footnote, it is important enough to be in the

FOOTNOTES [Predicative & text. Footnotes detract from readability. Don’t
Persuasive] 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 jumbles of RULE 12: CITATIONS GO IN
letters and numbers makes it almost totally FOOTNOTES [Predicative &
unreadable. This practice should cease,
especially now that footnoting references are Persuasive]
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.

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Edit, edit, edit, and edit again. Typos, bad

RULE 13: EDIT, EDIT, EDIT grammar, and misplaced paragraphs (which
[Predicative & Persuasive] 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 the most

underused punctuation mark in legal writing? RULE 14: WRITE SHORT SENTENCES
The period. The most overused is easy—the [Predicative & Persuasive]

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.

Passive voice is not forbidden. Sometimes you

RULE 15: USE MAINLY ACTIVE VOICE do not need to name the actor. For example:

[Predicative & Persuasive] “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.

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Use “that” restrictively, and “which” non-restrictively. (In RULE 16: DISTINGUISH BETWEEN
British English, which is used both ways.) The easy way to “THAT” AND “WHICH” [Predicative &
remember—which is preceded by a comma; that is not.
Persuasive]

RULE 17: USE THE DASH, Though you should avoid cluttering up your
PARENTHESIS, AND COMMA FOR document with too many incidental comments,
DEGREES OF EMPHASIS [Predicative sometimes they fit nicely. A dash provides the
greatest emphasis—it is a stronger break—next
& Persuasive] in degree is the parenthesis, then the comma.

Do not use two or three or four words for one (“devise
and bequeath”; “grant, bargain, and sell”; “right, title, RULE 18: ONE WORD IS USUALLY
and interest”; “make, ordain, constitute, and appoint”). A ENOUGH [Predicative & Persuasive]
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 practice of

RULE 19: NO PARENTHETICAL spelling out numbers and then attaching

NUMERICAL [Predicative & parenthetical numerical quite irritating. This was

Persuasive] 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 as RULE 20. HYPHENATE PHRASAL
adjectives, or two adjectives together modifying ADJECTIVES [Predicative &
one noun. Always hyphenate phrases like Persuasive]
“wrongful-discharge suit,” or “public-policy
exception.”

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In a list of three or more, always insert the serial

RULE 21. USE THE SERIAL COMMA comma. Some writers insist on omitting the last

[Predicative & Persuasive] comma, before the “and.” Do not omit the last

comma—

doing so

can cause misinterpretation. RULE 22. AVOID UNNECESSARY

Cut the useless preambles. Unnecessary preambles PREAMBLES [Predicative &
can weaken or hide the point they introduce. Some Persuasive]

unnecessary preambles:

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…

You should explain how the cited cases support

RULE 23: USE QUOTATIONS your theory of the case. Do not use lengthy

SPARINGLY [Predicative & quotations—a few lines at most.
Persuasive]

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 explain RULE 24: USE PERSUASIVE
your case, how can you expect the readers to LANGUAGE [Only in persuasive
understand it? Similes or metaphors are very
effective to illustrate your analysis. writing]

RULE 25: CONTINUE YOUR RESEARCH Continue your research! You might file a plaint or
[Only in persuasive writing] brief months before it is argued before the court.

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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.

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1.7 EXAMPLES OF WORDS THAT CAN BE SUBSTITUTED [Non-
exhaustive]

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 that although
notwithstanding despite
cause of action claim
in order to to
at this point in time now
until such time as until
whether or not whether usually
during the month of May in May
by means of by
as a consequence of because of
a distance of five miles five miles
at a later date later

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NOT PREFERABLE PREFERRED

made a complaint complained
utilize use
a period of a week a week
made an application applied
made a provision provided
it is contended by the plaintiff plaintiff contends
with regard to about
in connection with with
performed a search on searched
each and every either one
provide responses respond
offer testimony testify
make inquiry ask
provide assistance help
place a limitation upon limit
make an examination of examine
provide protection to protect
reach a resolution resolve
bears a significant resemblance resembles
reveal the identity of identify
makes mention of mentions
are in compliance with comply
make allegations allege

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