LEGAL WRITING

By: Emily Krinsky

Types of Legal Writing


blank%20contract.jpg
("Music of the Times Sample Contract")
Overall, legal writing can be divided into three distinct categories, including functional, informative and persuasive writing. Functional legal writing aims to achieve a particular result as wills, contracts and deeds serve to create a mutual understanding or agreement between people. Informative legal writing is an objective expression of information. This is shown through memoranda, letters to clients and statements of facts within appellate briefs as each communicates fact instead of opinion. The third type of legal writing is persuasive, which aims to convince readers to accept a certain viewpoint. The argument section of appellate briefs exemplifies persuasive legal writing. Thus, legal writing can be categorized into functional, informative and persuasive writing (Schulze).
In the contract to the right, mutual agreement is formally established between Music of the Times and the undersigned. Listed are special terms and conditions that each party agrees to conform to, as well as what is understood between them. For example, it is understood that in signing the contract, the "buyer" is responsible for any theft or damage to the equipment or musical collections of Music of the Times. From this, one can see how the document is an example of functional legal writing.


Characteristics


("Bryan Garner's Nightmare")
("Bryan Garner's Nightmare")
Every type of writing, including that of business, science, the humanities and law, has specific characteristics that defines it from other styles of writing, and these traits are created in part by the audiences the work addresses. In this way, some characteristics are shared between different writing types whereas others are unique to a certain type. Legal writing is one such example as it shares characteristics with other types of writing and has characteristics unique to its type. Like some journalistic writing, legal writing is defined by its direct and brief sentences (Weiss 65), making it unlike business and scientific styles of writing which may include lengthier, more detailed sentences. Legal writing, like scientific and business writing, generally does not include examples of figurative language (Weiss 51), sarcasm or irony (Weiss 58), as writing of the humanities may. From this, one can see how some characteristics of legal writing are shared with other writing styles. Other characteristics, however, differentiate legal writing from other styles as some aspects of writing are unique to legal writing and are not commonly found within other writing styles. For example, writers avoid the passive voice (Weiss 28), and sexist language (Weiss 38-39). This is significant in that other styles of writing, such as business, journalistic, and scientific, do not have such restrictions. Thus, legal writing contains characteristics that are not shared with other types of writing, thereby defining it as its own style.

With its sarcasm, this cartoon exemplifies how this style of writing has specific guidelines with respect to format. Legal writing, as aforementioned, avoids the passive voice, follows proper grammatical rules, and aims to avoid legalese.



Strengths


As with all styles of writing, legal writing has many aspects in which it is strong. In particular, it aims to avoid "lawyerisms," or legal terms and syntax that common people would have difficulty understanding and interpreting. This type of writing is strong as it is directed towards both those in legal professions and those who are not. Instead of stating, "hitherto," "heretofore," or "forswear," more common words and phrases are chosen, such as "up to now," "previously," and "renounce," respectively (Faulk, and Mehler 20-21). Legal writing is also strong in its brevity and conciseness as the writer's ideas are more clearly presented, and as the reader does not have time to read writing that is insignificant (Neumann 208). Those who write in this style avoid repetition since one's point is often more clear when redundancies and tautologies are uncommon (Faulk, and Mehler 64). For example,

"Original: As a condition of being allowed to submit loan applications to the bank for possible funding, the bank requires each mortgage broker to enter into a Broker Agreement that includes the broker's representation and warranty that it will not knowingly submit fraudulent loan applications.
Revision: Mortgage brokers warrant in a Broker Agreement that they will not submit fraudulent loan applications," (Oettle).

From this, one can see how the revision is more direct as it eliminates unnecessary phrases and has a clearer point than the original. Another strength of legal writing is its incorporation of fact over opinion or fiction (Neumann 183). This style aims to share with others the truth of an event or idea, as opposed to providing an opinion, which may not reflect the truth or reality. Legal writing is also strong is in its analysis. In some legal documents, such as an appellant's brief, an argument is presented with supporting evidence which serves as analysis. In legal writing, one considers facts and presents them to prove a specific point, and this presentation is the analysis that is found in most works of legal writing. The organization and structure that is required of legal writing is also a strength. Legal documents must include certain information and some works follow a certain format. Specifically, a brief must include:

the title of the case
its date
the name of the court
the place the opinion can be found
the identities of the parties
the procedural history
the facts
the issues in question
a summary of the arguments made by each side
the holding and the rule for which the case stands
the court's reasoning
the judgment or order the court made as a result of its decision
any comments that the writer desires to include (Neumann 42).
Here, it is shown how legal documents have strong structure, as compared to journalistic writing which does not need to follow certain formats.

Legal writing is strong in its direction towards those who are and those who are not in a legal profession, brevity and conciseness, incorporation of fact over fiction, and its required organization and structure.

Absences


In addition to its strengths, legal writing also has weaknesses in that it lacks some characteristics of writing that other styles have. One such example is how it lacks creativity (Neumann 272). Those who write legal documents focus on forming a concise work that follows the accepted structure of the document. They must state all that needs to be communicated in the clearest and most direct manner, which leaves no opportunities for creative thought or organization. Likewise, writers of this type do not incorporate comedy, figurative language, or emotion within the documents. The purpose of legal writing is not to entertain, to withhold the reader's attention or make connections to the reader, or cause the reader to feel anything other than agreement with the facts presented before him. These characteristics, however, are typical of the writing style of the humanities. Legal writing is about conveying ideas in the most understandable way, and creative thought may retard comprehension as opposed to direct information. This type of writing also lacks opinion. Legal documents are based upon observation, upon fact. One does not write about what he or she thinks, but rather, what is. Conclusively, legal writing lacks creativity, comedy, elements of figurative language, emotion and opinion, and these missing characteristics differentiate the style from that of humanities, science and business.

Creation of Reality


external image declaration.jpgEvery style of writing either presents or creates a reality for its readers based upon how information and ideas are conveyed. Functional, informative and persuasive legal writing each serve to create a distinct reality for their audiences. The three styles aim to show and create reality through persuasive fact. Functional legal writing, such as contracts, generally presents an agreement between people, in which case a reality is therefore formed between them. Those involved come to an understanding of the truth, where by law, neither party of the agreement can go against what is written; this understanding is the reality that is created. Informative legal writing presents reality to others, as truth is conveyed objectively for others to read and employ within their lifestyles. Here, reality is created when someone presents a reality before others- a reality he or she wants others to be aware of, like memoranda do. Lastly, persuasive legal writing creates a certain reality for readers to see. Writers aim to convince a reader to accept a certain viewpoint as opposed to an alternate perspective, and with persuasive diction, writers are able to alter the reality to which one sees to their favor. Writers show readers information, they do not tell it (McElhaney). Conclusively, the reality that one sees is based upon legal writing.

The Declaration of Independence to the right is an example of persuasive legal writing that creates a reality for its readers. The writers aimed to convince British government of United States independence from Parliamentary control. In this way, the United States congress presented arguments to shape the reality of the readers of the Declaration, such that the readers would agree with these arguments and grant the United States its independence. Click to view an enlarged version of the annotated Last Will of Michael Jackson.

mj_1.jpgtake_2.jpgtake_333333.jpg4.jpg5555555.jpg

"Last Will of Michael Joseph Jackson."



Back to the Main Article

Works Cited


"Bryan Garner's Nightmare." Fairyland Castle: A Blog About the Language of Law and Politics. Web. 30 Nov 2009. http://images.google.com/imgres?imgurl=http://4.bp.blogspot.com/_Xs-pcweLu1s/SfEl17txcjI/AAAAAAAABBw/JFp9e3vC1fc/s320/garner.jpg&imgrefurl=http://www.fairylandcastle.org/2009_04_01_archive.html&usg=__x2-yZWwN5c51d2PFFTOG4Nv2qiA=&h=287&w=320&sz=24&hl=en&start=2&itbs=1&tbnid=N_rjxbWeoZPBMM:&tbnh=106&tbnw=118&prev=/images%3Fq%3Dbryan%2Bgarners%2Bnightmare%26gbv%3D2%26hl%3Den.

Faulk, Martha, and Irving M. Mehler. The Elements of Legal Writing. New York, N.Y.: Macmillan Publishing Company, 1994. Print.

Garner, Bryan A. The Elements of Legal Style. New York, N.Y.: Oxford University Press, 1991. Print.

"Last Will of Michael Joseph Jackson." .docstoc. Web. 30 Nov 2009. http://www.docstoc.com/docs/8183668/Michael-Jackson-Will.

McElhaney, James W. "Style matters: write briefs as if they could win your case - because they can." ABA Journal 94 (2008): 28+. Expanded Academic ASAP. Web. 30 Nov. 2009. http://find.galegroup.com/gtx/start.do?prodId=EAIM&userGroupName=udel_main.

"Music of the Times Sample Contract." Music of the Times, by J. Hock. Web. 30 Nov 2009. http://www.musicofthetimes.com/blank%20contract.jpg.

Neumann, Richard K. Legal Reasoning and Legal Writing. 4th . New York, N.Y.: Aspen Publishers, Inc., 2001. Print.

Oettle, Kenneth F. "Saving words pays many dividends." New Jersey Law Journal 13 July 2009. Expanded Academic ASAP. Web. 30 Nov. 2009. http://find.galegroup.com/gtx/start.do?prodId=EAIM&userGroupName=udel_main.

Schulze, James. "Different Types of Legal Writing." Legal Writing Handbook. 2006. Web. 30 Nov 2009. <http://www.gerrysch.com/cle/handbook/13_types_of_legal_writing.html>.

"The Declaration of Independence." The B.S. Report. Web. 1 Dec 2009. <http://thebsreport.files.wordpress.com/2009/07/declaration.jpg>.

Weiss, Edmond H. The Elements of International English Style. Armonk, N.Y.: M.E. Sharpe, Inc., 2005. Print.