By Clement explained that Shipley was trying to paraphrase the question posed in “a more conventional style,” but that Dr. Schindler “insisted that the question asked reflect his terminology and preferred idioms.” In the end, the Supreme Court decided not to sanction Shipley. However, the court sent a warning message, reminding members of the Supreme Court Bar Association to use “clear language” and that this responsibility should not be delegated to the client. “Shall” is not simple English. But legal authors use the word “shall” all the time. You will learn it by osmosis at law school, and the lesson will be reinforced in legal practice. Ask yourself: Why do you write what you write? What do you hope to get out of it? What is the result you want to achieve? As you embark on this legal writing journey, remember that it can be difficult to become a great legal writer overnight. As with any profession, good legal writing is a skill and an ongoing process for which you train and improve the basics. 1. Write with an active voice.
The active voice eliminates confusion by forcing you to name the actor in one sentence. This construction clearly indicates to the reader who must fulfill the duty. The passive makes sentences longer and heavier. Who is responsible for this is much less obvious. Passive verbs have a form of the verb to be more the past participle of a main verb. Depending on the article you write, you may also find secondary sources such as legal dictionaries, legal reports, and academic journals that will help you with your research. For example, you need both primary and secondary sources to establish binding and persuasive authority. The word passive reverses the natural and active order of English sentences. In the following passive example, the receiver of the action comes before the actor. The most common advice that writers give to those who want to improve their writing skills is to read – this applies to any type of writing.
To specifically improve your legal writing skills, find good legal and business writers and read their article. These can be legal documents, but also books, blogs and articles. In many legal situations, specialized forms of written communication are required. In many others, writing is the means by which a lawyer must express his analysis of a problem and try to convince others on behalf of his clients. Any legal document must be concise and clear and conform to the objective standards that have been developed in the legal profession. No matter what medium or document you write, all good writers should always use at least the spell checker. Advances in copywriting technology have also made legal drafting much easier. For example, writing apps like Grammarly and Ginger can help you spot grammar, spelling, and other language mistakes.
The standard memorandum usually contains the following sections: Summarize your analysis and conclusion on the question asked. Identify the level of certainty with which you draw a conclusion for each issue or subtopic, but be sure to draw a conclusion even if you ask more questions. Do not include quotes. The conclusion should be limited to one paragraph, and in some cases with only a short topic, the conclusion may not be necessary at all. “Must” can be used to create requirements and prohibitions. However, prohibitions should be worded as “X cannot” instead of “not X must”. In addition to their role and relationship with you, think about the following: age, income and economic status, education level, values, and what they already know about what you write. This will help you determine your tone, style, and level of detail to include in your writing. Use “shall” and not “should” to make requests. “Should” is ambiguous and rarely occurs in everyday conversation.
The legal community is moving towards a strong preference for the term “shall” as the clearest way to express a requirement or obligation. The best way to structure a piece is to write from top to bottom. Start by showing the reader what you are writing and why, and then provide the arguments to support your case. Drafting a contract can be for informational purposes, while court documentation can be used for persuasion and client admission documentation can be used for assessment. The structure, tone and voice of the document will change depending on the purpose of your legal writing. If you understand this purpose, you can write better. Bryan Garner recently gave some tips for improving any lawyer`s writing style in a recent article that appeared in the ABA Journal on October 1, 2014. Garner is president of LawProse, Inc., author of numerous books on legal writing, and editor of all current issues of Black`s Law Dictionary. It suggests: Documents filed with the Court, including factums and memoranda, include fact-finding and case-finding, analyzing situations, presenting information and reasoning. To be an experienced legal writer, lawyers must be authoritarian, credible and persuasive in their writing.
The following legal writing tips will help you improve your drafting. After presenting the conclusion and rule, you need to explain the rule by giving a thorough discussion of the cases from which the rule is derived. Your discussion of cases should be specific in terms of facts and reasoning. One of the most helpful legal writing tips for improving your legal writing skills is to organize your research into a plan. Starting with a plan can help you keep your writing organized and focused. The subject of the note is: How does the relevant law apply to the central facts of the research problem? Thus, the question asked is analogous to the question or question presented in a written submission. The question asked must be sufficiently narrow and objective. This is usually a phrase that often begins with: “Yes.” or “Do.” The question relates both to legally relevant facts and to the provision in question. Although questions are usually worded in such a way that they can be answered yes or no (or probably yes or probably no), sometimes they can`t (e.g. “Has a retailer made a binding offer under New York law if…?”).
Always include the name of the affected jurisdiction, such as New York, Second Circuit. This document contains a brief description of how to write a memorandum. The format and structure may differ slightly from one law firm to another (and here at law school from one professor to another). Once you are in practice, you can customize the format according to the needs of your desktop. Many lawyers opposed the amendment, arguing that complex cases deserve expanded arguments and that litigants often have to address multiple causes of action, interactions between state and federal law, and sometimes convoluted legislative histories. Counsel argue that shorter pleadings are not always more helpful to the court and that shorter pleadings would necessarily limit the possible arguments against the appellate court, thus not giving the court the full context of the underlying facts and court proceedings. 20. Make the structure of the lists clear and logical. The collection offers spaces that separate the different conditions.
The list can help you avoid ambiguity issues caused by the words “and” and “or.” When registering, use the following rules: Chief Justice John Roberts said, “Language is the central tool of our business.” As lawyers, we must use and draft clear and persuasive language on behalf of our clients. The Supreme Court`s warning on the Shipley case and the proposed amendments to the Federal Appellate Procedure Rule32 require all lawyers to improve their drafting skills to ensure success. The use of jargon, including legal terms, is only appropriate in certain contexts. For example, using too much “legal language” with a client who is unfamiliar with certain legal issues can confuse them and confuse the conversation with unnecessary questions. Secondly – and as regards the first – it leads to litigation. There are 76 pages in “Words and Phrases” (a legal reference) that summarize hundreds of cases in which “shall” is interpreted. If necessary, make an effort to use plain language in your legal writing while showing that you understand the jargon and can easily present it to the reader. Avoid the gendered pronoun if the previous one can be male or female. DON`T SAY: The director or his/her representative must complete the evaluation form. SAY: The director or his/her representative must complete the evaluation form. Be careful when rewriting to avoid the problem. The following examples do not necessarily have the same meaning – What is the first and probably most important legal writing tip? Understand the purpose of your writing.
Use the legal writing tips above as a starting point. Remember to always be open and use constructive feedback and criticism. The preparation of legal documents such as contracts and wills is another type of legal drafting. Guides are available to assist a lawyer in preparing documents, but often a single application of the “form” to the facts is required. Poor wording can lead to unnecessary litigation and harm a client`s interests. The writing process is complex and goes beyond just putting words on paper. Research, writing and editing are important skills for good legal writing. The more you practice writing, the easier it will be and the better your work will be over time.