Chapter 1

INTRODUCTION ,TO LEGAL \fJRITING

Section

lA.

lB.

ic.
ID.
ia.

Written Work in Law Practice Fundamental Principles of Legal Ethical Duties and Limitations Basic Elements of Legal Writing Legal Writ; ng in Perspccti ve

Wrjling Style

WiJAT
The

YOU

wiu.

LEARN

IN THIS
of legal

CHAP1'~
in law
'I

~aturc

and

importance

writing

practice

..

..

The SI.':YCll fuudamental principles of legal writing The ethical duties and limitations with which legal' writing should comply The basic elements of legal writing style The im portancc of au itudu, and diligence in perfecting legal writing skills

:J

Section 1A.
, I
i

Written

\Mark in Law Practice

OF LAW J~RACTICE

1.

PQPULAli

CONCEPTIONS

Television programs typically show lawyers interviewing and ad visi ng clients. tic (losing wi tncsscs, ncgotiati ng on be II,it f 0 f the ir clients, re prcse nti ng clients at hcar ings, e xa m inirig or crossexamining witnesses, making closing arguments 10 j urics, ,ind presenting oral arguments in appellate courts. Althougb these often dramatic oral skills arc in the forefront of the pub lie's mind, persons knowledgeable with the practice of law realize that these oral skills are in tirnatc iy bound up with important research and writing skills. fLU/STRATtON (I) written 1.1
.i
: j

Oral presentations at trial arc IH(:CCUed by: (a) lor mal statements by the parties to a lawsuit setting f\1!lh their

INTRQDUCTION

T(i"

LE-:;AL WRITING

Ch. 1

respective claims and defenses (pleadings); (b) formal applications made to a court to obtain orders or rulings (motions}; (c) internal 'reports memorializing research or outlining litigation strategy (law office memoranda); (d) sworn written statements in support of proposed action .to be taken by the court (affidavits); .(e) documents discussing the law supporting or opposing requested court action (trial briefs or memoranda of law for courts); (f) formal requests' to the opposing party for information (imerrogasortes); and (g) personal notes that organize a lawyer's preparation for trial .Ior the lawyer's own use (trial notebooks). (2) Settlement discussions are often preceded by: .(a) letters demanding payment 'of a. claim (demand letters}; aod (b) written settlement proposals (settlement brochures or proposals). (3) Successful" oral negotiations are formalized by: (a) written documents embodying the principal agreement reached by the parties {contracts i; . (b) written documents collateral to a principal agreement. (such as side drafts, mortgages, notes, or personal guarantees); and (c) formal documents in which a claim or right is abandoned (releases), . .... (4) Oral advice to clients is supplemented by written .documeuts stating the Jaw, analyzing the client's rights and obligations, or advising the client un the legality' of proposed action (opinion letters and memoranda for clients} .. (5) Appellate oral arguments are preceded by extensive written statements discussing the legal issues on appeal and the legal authorities relied upon by the parties in support of their respective positions (appellate briefs) .

..'
2. BASIC PRACTICE CATEOORIES OF WRITTEN WORK IN LAW

'the written work in law practice following basic categories:

can be divided (e.g.,

into the for

(1) planning and advisory documents clients and opinion letters);

memoranda

(2) agreements and private transactions (e.g., sales contracts, wills, franchises, partnerships, mortgages, deeds, and employment contracts); (3) legislative ordinances); and . documents (e.g., statutes, regulations, and

(4) litigation-related documents requests, motions, memoranda of settleme[lt. agreements).'

(e.g.,

law,.

complaints, discovery appellate . briefs, and

,~:
I

Sec. B

FUNDAMENTAL

'PRINCIPLES

OF LEGAL WRITING

3. NATURE WRITING LEGAL

AND IMPORTANCE

OF LEGAL DRAFTING

AND

- I

WRITING

IN LAW PRACTICE

IS VOLUMINOUS.

Most of the business and legal transactions with which lawyers deal arc written. The weighty size of the typical court file or the documentation of any significant business - deal underscores this point. LEGAL WRITING IN- LAW PRACTICE IS DEMANDING.

====~-~======~==============================
Being an e/feclive legal writer is not easy. Legal writing requires concentration, patience; j udgment, -and skill. Writing requires planning because one fact of legal life is that legal writers face- deadlines.

====LEGAL

=~,.;..-:-

==========-..,;..-=======
IN LAW PRACTICE IS CRITICAL.

WRITING

Poor legal writing harms people. Large sums of money arc gained and lost us a result of carelessly drafted wills or trusts" Unnecessary disputes and wasteful Iitigation are caused by poor drafting of statutes, pleadings, contracts, discovery requests, agreements, deeds, insurance clauses, and other legal documents . typically prepared by lawyers. Furthermore, there are more subtle reasons for good legal writing. ILLUSTRATION1.2 Poor drafting of a memorandum of law or an appellate brief diminishes its persuasive impact on the Court and may cause the judges to question the substantive _quality of the writing as well. Inferior quality written communications : also may harm client relations and reduce a lawyer's effectiveness in dealing with others. Ou the other hand, the process of producing quality written' documents develops clear thinking and a good working knowledge of the contents of the documents,

Section -1B.

Fundamental PrinCiples of Legal Writing

on what is involved in producing good has shown that the essentials can be

Focus your attention legal writing. Experience

INTRODUCTION

TO 'LEGAL

WtUTING

Ch. 1

distilled into seven. fundamental principles. These principles (introduced in the following subsectious) require your constant attention and provide you with an overall checklist for reviewing the quality of written legal work.

(
.f

r....

't

Y.

ACCURACY

IN LEGAL RESEARCH WRITING REQUIRES ACCURACY IN LEGAL attemp provis. legal J and draw with
CHSCS.

GOOD LEGAL RESEARCH. .....

============="-====<=====.<.-:..==

Thorough and accurate legal research provides the material and framework for good legal writing. Without it, an otherwise well-written and well-organized document may be disastrous. ILLUSTRATION 1.3

case: apply

In Cicio v. Cily of New York/ a 51-year-old Staten Island sanitation worker sued the City of New York for three million dollars. The worker claimed that he had been inj ured when his partner negligently drove the garbage truck over his [001. On appeal to the Appellate Division of the New York Supreme Court, the attorneys for New York City filed an appellate brief urging that the worker's case should have been dismissed because formal notice of the claim had been filed one day after the ninety-day .statutory time limit for such claims had run. In their appellate brief, the attorneys for the city' did not discuss, or even cite, several controlling judicial decisions adverse to tbe city's position. In affirming the lower court's grautiug of an application for leave serve a late notice of the claim against the city, the Appellate Division of the New York Supreme Court cited and relied upon .seceral cases that supported the worker's position, including two cases directly on point in which the city itself had been a party .. Somewhat miffed at counsels' failure to research the question prriper ly and to present the issue fairly, the court stated:

and

yr commo

GOOL

PURP

to

. [The attorneys' failure (0 cite these cases] is D19St disturbing and clearly inexcusable. . . . Had even ~ modicum of thought and research been given to this case, it would have been self-evident to the city that its position was untenable and this court and the taxpa:yers would have been spared the costs of a .... frivolou, appeal.f .

198 A.D.2d 3R, 469 N. Y.S.2t! 467 (1983) .:

.
,',

2Id. at 40, 469 N.Y.S.2d is not personally or professionally

ill

469. This kind of notoriety is U~if<rI;;I" satisfying. _,/

and

.'.

Sec, B
~:

FUNDAMENTAL

PRINCIPLES ANALYSIS

OF LEGAL WRITING

ACCURACY

IN LEGAL

GOOD LEGAL WRIT!NG REQUIRES ACCURACY ANAL YSIS AND REASONING. '

IN LEGAL

For most legal research and writing projects, you will atte~I?t to. find relevant statutes, regulations, cases,' constitutional PTovlslons, ordinances, and legislative history applicable to the legal problem. the research and wnung process, you must analyze these sources accurately., You m list be able to draw analogies . between the facts of reported cases and the facts' with which you are working. You must be able to. distinguish cases. You must be able to engage in the often difficult task of ' case synthesis and rule Iormulation. You also must be able to apply statutes, regulations, and constitutional provisions,
and sum marize

During

During
and you

'this entire' .process,

be adept in

must

you must avoid logical Iallacies, the .techniques of argumentation

commonly

used in legal writing.

~ .... AWARENESS OF THE PURPOSE AND AUDIENCE "

., GOOD LEGAL WRITING REQUIRES AWARENESS OF THE PURPOS.E AND AUDIENCE. ..... _ ~~-~ ---......---=:'

(a)

Identify. the Purpose of the Document

:.,; ...

Documents prepared by lawyers serve a wide variety of purposes. Some, such as contracts, are designed La' memorialize understandings, and create binding obllgatious. Others, such ali wills and trusts, are designed to express and effectuate clients' wishes. Some, such as memoranda in support of motions and trial or appellate briefs, are concerned mainly with convincing judges or other decision m~.rs of the correctness of clients' positions. Some, such as interrogatories or Freedom of Information Act requests, are designed to secure information.

Other documents, such law office memoranda, case briefs" memoranda prepared by judicial clerks, arc used for internal communication or preparation of other documents. Some, such as demand letters, settlement brochures, collection letters, and pleadings, an; aimed at inducing either voluntary or involuntary action. Still others, opiniou letters to clients , for exam pie, .are designed to con vcy information or advice.
and

as

~'.-""':-'''';''-''''-'-'-:-""'''''--'''-'-''-

.. ," -""---' '.'.

~ ' l/y. ,
'

INTRODUCTION

TO

LEGAL WRITING

cs.

vou MUST BE. SENSITlYE TO THE WIDE-RANGING PURPOSES OF LEGAL DOCUMENTS BECAUSE EACH REQUIRES AN ADJUSTMENT IN YOUR WRITING STYLE.
ILLUSTRATION 1.4 . internal use, memoranda for and opinion Ietters for clients the statement of facts and the appellate bric Is or memoranda

Law office memoranda for judges prepared by their clerks, traditionally are more objective in interpretation of. the law than are in support of motions. Pleadings often

that' have been upheld

are drafted with an c'yc to those pleadings in prior litigation, occasionally sacrificing what appears to be. simpler and more direct language to avoid risking a controversy .

. In contrast, absolute clarity of expression is a prime concern in the drafting of statutes, contracts, wills, and, trusts. Absolute clarity of expression is of less concern in routine 'correspondence. (b) Be Aware of th Audience is directed should

The audience to whom a legal document also affect your legal writing style. ILLUS1'RATION 1.5

Will the pleadings be read to the jury or will they be placed only in a court file? Is the document directed to a judge,' an opposing counsel, 9T a.n unsophisticated layperson? WHAT MAY BE GOOD LEGAL WRITING STYLE FOR ONE AUDIENCE MAY BE INEFFECTIVE ,FOR ANOTHER. ILLUSTRATION 1.6 often other

""

A legal rule lawyers and judges readily understand must be restated in' simplified langu.age, for jurors' and laypersons in jury instructions. BE ESPECIALLY CAREFUL AUDIENCE'S FAMILIARITY FACTS OF A CASE . ABOUT ASSUMING rue WITJI THE LAW OR TilE

.i;.

:!L;t:::GriCbi,:.;,g.:@!i#!
. :

...

~--. ---_._--_
Ii

at.
.....

_ .....

, ]['

...

'3

it"

, aiha

w.

_ ....

f
I'

~;; ... l

~ ~ :i ~.
:~I

Sec. B

I~UNDAMENT AL PRINCIPLES
1.7

OF' LEGAL WRITING

h:
oj
;::

ILLUS1'RATION A woman

evening.

One

.,

, ,
I i

~ .

.or
nf,S

;1
!j

..
H

greeted him in seen her before, on his wa.y. friends: "You friendly. .After

television newscaster every newscaster on the street' and a very Friendly manner. Because he had never the newscaster said "hello" politely and continued Later that day, she complained to .onc of ber. would think that he would have been more all, I sec him every night."

watched

local

day she met

the

he

,.
:1

da

t19S

The point of this story is simple, but it illustrates a pitfall of many legal writers: Never overestimate the reader's familiarity with the substantive law or the facts ill legal writing.

og

"r ! ,
!,

4.

COMMAND

o Ii'

TJlE

EN(;USII.

LANGUAGE
_.===

oid .!cn
ute ice:...

======0'

i:
;'

GOOD I.EGAL WRITING REQUIRES OF THE ENGLiSH lANGUAGE .

=====.' .
='-'.

A COMMAND

rl

i)

.. -=~ ,.,=.====-== ..

"
!i

I,

To realize that the particular purpose. of a document and its audience should affect the written work product is one thing. To know 'how to make the needed adjustments in tone, emphasis, and content is quite another.

:d

ii
i:

~.

=.=._======:.=====
TO MAKE APPROp/UATE ADJUSTMENTS 1'0 REFLECT THE PARTIClILAR PURPOSE OF A DOCUMENT AND ITS AUDIENCE, YOU MUST FIRST HAVE A COMMAND OF
THE ENGLISH LANGfJAa/f.. .

~ ~
be Ige,

Ij

. ,I

j. , ,

r
...
.tcn
i

!
I I'
,

You must avoid rudimentary technical errors. You must be able. to move from passive to active voice and vice versa, to shift emphasis within a sentence, and to write with clarity, precision, -and brevity, You' must be sensitive to shifts in tense, mood, and voice. You must he able lO use parallel construction, tabulation, structural guides, coherent paragraphing, and transition sentences

effectively.
You mU5L he able to identify, articulate. and order concepts your wri ti ng. You must he uhle to select words carrying approprrate connotations. You must be wilIing 10 work to achieve an. appropriate eloquence 01' expression.
10

~.t.~~

l'
j.
1

. Appendix B contains a self-review or basic English language technical skills. . Section 0 of this chapter introduces Ihc basic elements of legal writing style. Several other sections of the text discuss stylistic skill" in the context of writiug particular kinds of legal documents.

;.j .,
.', "

.'

INTRODUCTION PROPER FORMAT

TO
AND

LEGAL

WRITING C1TATION

Cb. 1

-<So

LEGAIJ

(a)

Using the Proper Formal

.. :......''' " -r
..~, .

===;==========.,

GOOD LEGAl, WRITING PROPER FORMAT.

======== .. ".,= ..

REQUIRES

THE US I': OF THE

p

,=- =========,

c: The prescribed.
forma.l of You should a document will usc that format.

be

officially

a: p

fl
=== .~_.'-==========,=o=:~~., '.'-~'.'.'.-'.'.' BE SURE TO /)ETiRMJN/~ ANY OFFICIAL CONSTRAINTS ON ru FORM.4T OF A DOCUMEN1: BE ESPECIALLY CARRFUL TO I'OLLOW ANY APP/,ICARLE PROCEDURAL RULES OR LOCAL COURT RULES. ILLlISTRATlON
Rule 28 of the headings and courts of appeals Rule 32 governs page size, kind Individual circuit
1;\1

OJ A OJ

tt.
1.8
the Federal Rules of Appellate Procedure dictates organizalion of briefs filed ill United Slates and limits the length of the appellate briefs.) the physical form of appellate briefs, indudill~ of paper, type size, and color of the: cover. court rules further supplement these Tilles. restrictions frequenlly are imposed. on documents filed III

b:
QI
01

Similar the trial courts.j'

When official -constraints on the formal are nol prescribed, you must be sensiuvc In <lny internal office requirements. local customs, and practices of the bar. In any event, the formal of the document should be geared to itx eventual lise and should aid in accomplishing the purpose of the document.

p.r

=
.'t

3Fed. R. App. P. 2B(a). (b), (g). cr. S.. Ct. R. 33.3 and 34 (prescribing the contents," order of presentation, and page limits Cor briefs filed in the: United Stares Supreme Court). Sec genullily R. Stern, APreillll!; Practice. in the United ~ 225-310 (2d cd, 1989) (discussing parts of briefs and timing jn state and
federal appellarc practice).

~ I 1

~FctJ. H. App. P. 32(~). In United States courts of appeals, rne cover of the appellant's brief 'should he "[ue; that of the' appellee, red; that of an intervenor or amicus cunac, grecn; thai of any reply brief, gr"y;- t hc cover of a separate appendix should be whitc. JtI. 5$1:(:, c.g., Fed. R. Civ. P. ]O(a), (ll) (l:aplio05, !,aru~raphing, ant! separate required in (',(Ic(al c.lislrid court' pjc~din!:s); -I I;. Poore cl.: E. Kocbcr, eyclupedi" of Federal Proceuurc 14.29 [rev. 3d ed , 1986) [discussing local dist rict ('(Inri ,.,-II~s nr. the size, wl!i~:hl. and color of P"ptf, color (If' !Ilk, ;inc numbering,
Statements
.!

ane
ed.

..
I

SI'UCIIllS, of Iinc, filed).

fa&lcllillg.

Ila

or

unfolded

filing, und

the

number

of ""pi""

to

be

(191

.-

Cb. 1

Sec.

FUNDAMENTAL

PRINCIPLES

OF LEGAL

WRITING'

(b)

CUing Sources

in Legal

Writing USE OF

GOOD LEGAL WRITING LEGAL CITATION .

. .....

REQIII RES EFFECTIVE

Jfficially

Much of a lawyer's written work is focused on identifying, predicting, or asserting what the law is or should be. The citation of cases, statutes, and the wide variety of other primary and secondary sources is an integral part of that persuasive process. By citing such authority, lawyers demonstrate the sup[JOrt' for a particular position. Good legal wril.ing requires that these. authorities be used and cited effectively. One widely accepted system of citation is A Uniform System of Citation (U.50C), known as the "Blue Book" or the "USOC.H6 A more flexible system of citation is prescr-ibed in The University o] Chicago MWWIJI of Legal Citation (Chic/IgO MWIlW/), known as the "Maroon Book."7

tiNTS
f..LY

!RAL
-='_

. dictates -d Stales briefs.3

,ncludill : cover. iles. fi1ed in

Legal citation rules assure the citud sources can be found based on the information provided. Furthermore, many members of the bar anrl judiciary rcg,IrJ "proper" citatinn as one indication of quality legal work.
. 6. PROCEOURAL CONTEXT AND R~MEI)Y SOUGHT

-escribed, nts, local

GOOD LEG4L' WRITiNG REQUIRES SENSITIVITY TO THE PROCEDURAL CONTEXT AND TO THE REMEDY SOUGllT. sensitivity
for several

'ormat of
~b.fild aid In procedural litigation-oriented Jegal wntrng, context of the. problem is important to the reasons .

(presCri"ing the United the United I slate and ~

"J1IE PROCEDURAL CONTEXT is IMPORTANT BECAUSE IT USUALLY PROVIDES A PROCEDURAL STANDARD

THAT MUST BE MET. .

.======~-=====.. =

~==

========

,=======--.=====.-===

be cover of tbal of an'

cover of a

'1d separate

H. Koeber, ')cal dilOtri ct numbering, opies to he

GnIC lJan'aro Law Review AS~II. YOlk Law )"",nal, Columbiu Law Review, lind Lnivcrsiry of Pennsylvania Law Review, i\ liniForm ~yslcm of Cil<lIio,! (14th cd. 1,)11(,) Ih.:rcimlrlcr .!2iQ :lIul lJS()~: Rule].
'l Utli IIcr~ily or Chic .. ~o, The II,,; v",.,jl y of CJ1!CUJ!.(> Manu,d [hereinafter ~:hicag() Man'''<l1 and pika!(c> Rule].

(,f J.c_g_l1le,l atioll

(1\189)

-.JIa

--------_,.._.;..

. --.:..-~

.-'

10

INTROIJUC110N 1.9

TO l,EGAL WaniNG

Ch,

ILLUSTRATION
:

ILLl
Are

:.,,,

has been filed and you have been a mure definite statement (and a memorandum in support of the motion) in response, Under Rule 12(e) of rhe Federal Rules of Civil Procedure, the procedural standard to be mel is whether the pleading "is so vague or ambiguous that a party 'cannot reasonably he required 10 frame a responsive plcadi ng .' ... ,,8 .
Assume

asked

that to prepare

a complaint

motion

for

loss,

Standards such focus of memoranda

. action.

as these 'provide the poinl or attack or the. supporting or opposing past or proposed

GO( PR.(

1'BE PROCElJURAL CONTEXT IS IMPORTANT BECAUSE IT .PROVIDES RULES OF CONSTRUCTION AND INTERPRETATION 1'JIAl' AFFECT YOUR APPROACII iN WRITING A MEMORANDUM OR APPELLATE BRIEF. ILLUST.RATION 1.10.
a m ot ion (and iss a com plaint lJ claim upon R ulcs of Ci vil

writte

minirr
jurisd

Assume that you have been asked to prcpMc ~ m eniorand U In j 11 xu ppurt of that. motion) [0 dixm on the ground that the. complaint fails to state which relief may be granted. Under t he Federal Procedure, tilt; factual alh.:gations in the complaint be true for purposes of the molion,9 . You also must be sensitive to the

ethica have I in a ~

are assumed

to

words,

what

docs

your

client

constructive trust, temporary equitable lien, replevin, damages, other legal remedy?

remedy sought. In other want (I. declaratory . j udgmcnt, restraining order, rcforrnatinn.> rescission, garnisb mc nt , or "orne

Se

1. CO deficie problcr sources

EACH REMRDY HAS PRCULIAR REQUIREMENTS . ROUTINELY MUST BE TAKEN INTO ACCOUNT WRITING.

TI{A T IN LEGAL

===== ====-:.. .. =-..... =

.,..... =====-

m anife: and reo

Sometimes, legal controversies center nut so much on the parties' substantive rights bUL on tile appropriateness of particular remedies or questions of their measurement.

particul lack su

SFed. H. Civ. 1'. 12(c).

9scc:' id. 12(1))(6) may. he gn~tc.!): (motion
I()

Ihereinaf"
diSOli,..~

I fur failure
10 st at c a claim "1)011

which

relief

. [hercinufre

'IL~.:.

Ch. 1

Sec. C

ETHICAL 1.11

DUTIES

AND L1MITATIONS

11

ILLUSTRATION been (and a r Rule

!

Is a preliminary inj unction proper under the circumstances'! . Are the damages in a given case to be measured by the plaintiff's loss or rhe defendant's gain'!

cedural

~uc or
-arne
3

- 7.

Pll()FI~SSIONAI"

Jo:TlIlCAL

STANUARDS

or the
oposed

GOOD LEGAL WRITING REQUIRES COMPLIANCE PROFESSIONAL ETHICAL STANDARDS.

The following professional work ill law pract icc: ethical rules arc

WITH

'SE

relevant

10

written

(1;1:. ..

==
.n (and nplaint

(1) the Model nnrnmum standards jurisdictions); and

Code that

of Pro! essional Responsibility attorneys must meet in

COTlduCl11

10

(the many

(2) the Model Rules of Professional ethical standards adopted by the American

(the current

Bar Associal ion, which have been adopted as the minimum standards uuorncys must meet III a growing num ber of jurisdictionx), . Applicable. provisions uorcd 01" cited iII the

upon f Civil mcd to

I

:IH~ q

or the A/odd nc x t sect ion.

C()(J(~ and

Model

Rll"~:~

,] other lgment,
marion,

Section 1C.
1. COMPETENT,

Ethical Duties and Limitations

r some

PREPARED, ANI> TIMELY REPRESENTATION

basi c me n tal

fT EGAL

and neglect arc rarely attributable to capa b iIi Ij ex. J nstead, personal problems, overcommitment, sloth, or indifference are the. typical sources of the problems. In a. legal writing context, these factors manifest themselves ill the form of inadequate research, drafting,
dcficicn c ics in

Lawyer

incompetence

and revision, on the

.rticular Legal writers should carefully assess. how much Lime a particular matter will take and plan accordingly. When lawyers tack sufficient time to complete a matter competently, they should

-----------IO_I\Ulcriran Bar "'loS' II , [hereinafter MntJd Cmlcl. 11 American

--_. ---_._-_.
:... tOlkl emit:

__ -l~c$ll(lnsihili\

(/1 Ir"ft".~inmll

y (limO,

Ion which

[hereinafter

non Ass'n, Model Rules].

M~ltJt:1

I{utes

or

l'mfe,si()~l!1

Conduct

(I~H3)

1411 b!!

~77zm.rtY=

rns ..

INTRODUCTION

TO

LE(;AL

WRITING

ClI. 1

Sec. ( 'tribun: manda j urisdi

client'!

get help> refer the matter to a knowledgeable lawyer who has time tu handle it, or not accept the new matter.12 2. ZEALOUS R~PRESENTATION
0.1<" THE CLIENT

As part of the adversary system, lawyers should represent their clients zcaluusl y within t hc hounds of the law. Disciplinary Rule 7-10!(A)(1) states [h ix duty in negative terms: "A lawyer shall not intentionally ... !flail to seck the lawful objectives (If [the] client through reasonabJ( available means permitted by law and the Disciplinary Rules."l . Subpart (B) of this rule, however, provides thaI lawyers when "pl'rnJjs,~ihk, c xcrclse [thei ..J professional j udgnrcut lo waive OJ' [ail to assert a right or position of [their] clientls]" and may "[rjcfuse to aid or parricipatc in conduct that [lawyers believe] 1(' be unlawful; even' though there is f>OIIlC 1>U flPor I lor an argument that the conduct is lcgal.,,14

advoca with

,I

candor judicia present

4. . l\' PROCI

rnay,

factual
which

PrOfCSM)r.s
zealous

Aronson
in

and WCCkSLCill explain

1 he

the irn portance

in this way:

of

lawyers lawyer
whethc f

representation

adversary

system

The clements of justice- -approximation of t hc truth, respect for human dignity, satisfaction of potential litigants, and party participation in t hc p rocess of decision - maki np,:.:"can be e f fcctuated only ; r each litigant is able to call upon a loyal and knowIedgeable legal representative to zealously discover the facts, research the law, convincingly present the case to I!D impartial decision-maker, stand ready to rebut the presentation of ad vcrsaries, and sa feguard the constitutional and other legal rights or' tile client. . . . ITJhc lawyer is expected to make positive contributions to a reasoned decision in accordance with valid general principles and good public policy through a~(!llraIC and COlD plcte research and e ffecti vc ad vocac y. 1.)

conscqi ILL US York

af'fidavi

Il a

note 11, : AIJ[lc.:ll a to.:

3.

MANDATORY

DISCLOSURE

OF CONTROLLJNG

LAW

38 (1978) Whatever

When professional

lawyers present a matter to a tribu nal, the rules of ethics require them to make certain disclosures to the

opinion.
the dury

rendition
17

--------------12See Mll<.lcl Code, !,l_nr<l note 10, DR 6-101(A).

13!!!. DH 7.lO1 (;\)(1). iii!!!. DR 7.)(JI(B)(2).

... -.... --.-- ...

-~--

Hornstein, with adve deal with

more dam

upon the may taint 18

ISI(. Aronson (1980).

& D. Wccksrein,

I'rofcs:sion<li

Hcsp()llsibili!y' .i!l.J!._~tllsliel! 271

Sec. C
imc

ETI-llCAL. __ UTWS D

ANn

LIMITATIONS

13

tribunal. Discipf nary Rule 7 -106(n)(1) ill} poses on attorneys a mandatory duty to rcve al any legal authority in the "coutrolling jurisdiction" lhat. they know to be "directly' ad verse" to t~cir .. I .1 client's posruon ant h t at . opposing I . couusc has not .e ; IO:-;CU. It. \.11$(: rule dovetails with common sense in advocacv. Good wou ld dictate disclosure () f ad vert;(: authorities-aloug with ;lrgH!lIcnb distingnishillg ur (;rjLj('iz!n!~ lh~i~l, In l h is way, C;i!H!iH' 't;;k~s. Lil,' wind [r urn ;!!I 'IPPOiH'::il's sails ;IJIJ jIIsl.ilis j1idicit.J! trllSt.. m .he quality and completeness oj' [the]
adVOCii.~~y

This

xcnl

-rary
!yer :; of

liw'

pre:,c nl ;IIW;I.

~ 4

.,1,

y~:rs li<1

,1. MANIM.nmV 1>J(OC!(i':IHN(;S Lawyers candor

the op

DISCLOSURE

OF

FACT:~

iN

EX

J'AH'n~

.and
eve]
UJ!

:e of

arc held to " sii!llif;(:anily highCJ' standard of in ex parte proct:,:dinC';' lhi.lTi in procccc ings In party r(:lif,_;~(:.:ll~J, I.!X hI''''' yc I::; urc rcquirc d iO inform lhl~ court "or all m'lll.:ri;.1 f<1ClS [t he lawyer knows to] enable the [court] to make an infur me d decision, whether or not Ihe !',Wlt> a re ad Verse, ,.J Ii Iacrual
which posiug is in par!c procccd ings,

17.::ihlrc consequences.

to

disclose

all

m atcr ial

rans

can

have

serious

ILLUSTRA'f'ION

).12

In Weichert v. New Y,Hk Suue Bur Associalioll.1.9 a Ne w Yor k auor nc y was disbarred for fiting ,I. kl)()wil't~~ly misic'ldiflg af'Fidavi; 10 secure an ex parte inorder vi ng liell pr ior it ies. vol

::s [If
o the

\1"..:<.:1 Corle, !:'~J2.r" note I:). GJ( :-. !O{,(ij}{li. ,,\;'1,,(9. :-"1IJ,.lt;i 11,,1<;5, ~\!2G rwk. 11. Rule 3.3(a)(:I). Cf. L'...ilicr , L.':l~!!!;d. !.'.r!~'()!i.!Y---..J:;; ~!Ihicai.J2.J:JL2t I he :"'P!'d!.!!!.....:~~~_~~__ t.~'."T~!L.!.!!.'!.~!!~UU!.!:~:'s...l:.!!w.(, lJ()l~mil 1.. [{"", n(). '1:>4:;:; {1\)711, C!'I'!h,: Cod.: of I'r()r<.:s~i(lI!ill !1<:sl'"" ...lJiiil), ;" :'j<) lolC:f(lIll r.l1' !cl.'.;sl ur nncc. i Whatc\'cr I' h" Iii ....yer'sl c.:;,u,;c:. a il;wyc: di~,:,,;,si!";> 1,,11' implid,ly dters it rrnrc~~ior'ill opiruon. I" Iaw yc rx] <:~i1iCill ()hij!~<lIi"n I',,' lit:: r:(,,:Ht .. , is ;II leu "I us slr'log OIS III.! d,",! 10w(:<1 to t lre IIIwycr'SI client in ('()Osu)l" lion: 10 [;i;!c fai: ilT'" dct achcd rcndir ion of III>.:Ia w ".~ [lile I.,w),crl "ncl";$I,,~;J~ it').

!{;

'c. Wolfram, }~m.._.L<;l8.!_.J.:.IJUs~~ t2.<;, ill (,[$J. iI9%). C[ ,i.. l lornsrem, ~I!lli:llalc Adv()Cil(V i!L:1 r--.'.!.!..!J.~ I'-,~, :,1 151. (_i';!\4) (,,!l'iuJiul) In oo:;t! will: ljY/~;~ ))fl,~t!lh-.llq ",iii make il appc:rr h' . lrc ,',,;111 Ill;!. t hc ,,,,vocate cannot (.(c;11 ',\'il h I hi; precedent CjJ;C s\lc:r.c~sflllly. !Tililq precedc.u inay (hell become even snore Cl;;m::uing for i&l'l( or a rcsponxc [() il.. . [It ] is "I<ciy 1(', c:..~1 (~()l'~l either ,,!Hl" the il.ly()t~lc.\ fl)l'Ihrighlllc~.' O~ "''':'1'l'Il'IH'C "r 1",11:. And llt:.'~'!'1 (Jf Jr."hl luay I ..... l :hc :-CSl (ff wh~t 'he iJ(h'ut';!:(; lI.n, III ~;I)'''''.

i:

IH\iOdd

Rules,

.':.~.pra

IIO,t'

I~":,,

:;.~!II. ISl

'!/'IO A.l).2,!

261. 262(,3.

33~1 N,), S.2..: 7S.:.

(l'ni),

'

...

:..!.'.

14 5. FALSE

'Nl'R~~IHJ_CTION STATEMENTS

TO OF

LEGAL LAW OR

WRlTlNG FACTS

Ch.

1. existir

be un

Disciplinary Rule 7 -102(A)(5) proh ib its lawyers In representing their clients from making knowingly Ialsc statements .of law'. This same provision prohibits making knowingly false

lLLU~

statements

of facls:;w. 1.13

.
suspcn imm ig

lLLUSTRAi1()N

stays (
MOlle!

In a'n Indiana crirn j nal ease, the de f cndnnt was l ned for Iirst=dcgrce murder after he had drawn a gun, lmd shot the victim several rimes, and had continued HI shoot the victim after he had Iallcn to the groulld. On appeal to the Indiana Supreme Court, the defendant's attorney 'referred in his appellate brief to several instances of "uncontroverted evidence" ill the record. In its opinion in the case, the Indiana Supreme Courl stated: We rcalizc that a lawyer xhou ld zealously plead his client's ease. But surely no cine who has read the transcript of the C\jdCll~C in this case can, in good faith, say the evidence is "uncontrovcrtud" lhul Inc appellant fired [the gun] in self-defense. ... The [cjourt is cniitlnd. to it fair statement. of the Iucts from attorneys on both sides, not an (.xuggc;'<:i~d, sdf serving version. of t he fuels or an cmissicn of crucial Facts. When the Iclour; finds thaI. it call 1101 i cl y UpOIi the -stutcrnc nt of i.! lawyer, the lawyer has losl his effectiveness . . . and has therefore, In Iact , injured his c1icnL2L

impose before

';l' .

a o

impropt

6.

ASSERT10NS

OF

FALSF.

OR

FRIVOLOUS

CLAIMS

OR

DEFENSES

The disciplinary rules prohibit the assertion of patently false claims or defenses. Disciplinary. Rule 7-102(A)(2) states that attorneys lllay nol "[kjnowi ngly advance a claim or defense that is unwarranted under existing law: [unless] it can be supported by [a] good faith argument fur an cxtensiou, modification, or reversal of

'

~:'.

20Model Code, m>!~ note 10, DH '.102(1\)(5). Scc __.!!!~ M()(kl !C..I;s, ~~ note 11, Rute 3. .3(a)(1), (2), ('I); Uviitcr, ~:!D! 1101'1: Hi, Ul 73!-~1 (pmvidi,,~ examples of "((i,-ccl" anrt "indlrcct" statcincnts of (he 1;lw ill a dj~c""5il'n of wl:u~ is meant by ~ "false statement uf law") .. :!lC09per v. Slal~, '261 Ind. {)5lJ, (,{.2, 3()~ :'Ii.E.2d nO'I, !W~ (1'J7<1j _&:c ;I"'~ Pr;lUS!O v. I.<NII !\id S.:~'.,., :>(,:l F.2J 132'1, 1327 II.X (')111 (I:. 1'lTlj ("II is appellate counsel's prolcssionul duly !u be: ,;nupulously l:CCllr"lo: III .\:r<:lI;fI~ 10 lite record ,lilt.! t hc aut horit ics 1:1'011 ",!lie" he relics in hix jlJcM:IlI.IIJOli 1\, li!e t()lIr! III hi~ hrief or o ral tlrl\"lllo:nl" ,.

. sUpra

Ch. 1 .cxisung I .. aw. be unpleasant. {ycrs in statem en ts

E'l"BCAL
22

DH_TmS ~_ND ucnccs

LIMfTATIONS this stan dard

15
can

The

COIISC4

for violating

ILLlfSTRAl'lON

1.14

ugly

false

In the case of III re Bithofley,23 an attorney was fined and suspenucd from practice for filing petitions for review in iOlmigration cases bused on frivolous grounds to secure automatic stays of deportation. addition to the requirements of the Model Code and Rule 11 of the Federal Rules of Civil Procedure imposes an affirmative duty 1.0 investigate the facts and the law before laking action: In

tried for .he victim

er he had
ne
(0

Mode! Rilles,

Court,

several
its

.'I~ In

his the
.oud the

The
rom

elfIcial rely lost .act,

The' signature' ()f 1111 attorney Or party constitutes a cerci ficate by Ihe signer IhlJ[ the signer bas read the pleading, motion, or other paper; that to the best of .the sigucr 's knowledge, infnrmatinn, and belief formed, after reasonable inquiry it is well grounded in fact and. is warranted by existing law or a good faith argument Inr the extension, modification, or reversal of c xist ing law, and lhal it is not interposed for any improper purpose, such ax 10 harass or cause nnncccssarx delay or needless increase in the cost of litigation,2 .

to

Rule 'II authorizes the improper claims or defenses:

foliowing

sanctions

for

asscrtiug-

~IMS OR cody false

.tates that. il.Sc.. that is " II r -teu"by [a] 'eversal of

If a pleading, motion, or ocher paper is not signed, it shall .be stricken unless it is signed promptly after the omission is called (0 I he attention of the pleader or movant. If a pleading, rnotiun, or other paper is

signed in violation

or

this rule, the court, upon moLion

or upon ils own initiative, shall impose upon the person who signed it, a represented party, or both, <in appropriate sanction, which may include an order to pay to the other party or panics the amount of the rcasonahlc expenses incurred -bccausc of the filing of the [document], including a reasonable attorney's rcc.2~

Model nules,' 14 {providing sion of what

._--_ ...._------_
';UI)ra note

...

_---- .. ---_- ------10, DR 7.1r.;:!!.\)(2).

2?M()ud C()t!t:, ~;upr3' note j J. H ulc 1. L 23.1,,0 ott I"J I ._'

'j (I) ,.J ..... .,.,~ l

Sec iSbo Model

Rule,;,

{I' :"11

'4). ~.f.!i2Iso 'Y77) Cil is

:rring to Ihe .Ihe court ill

;14

. Fell. H. t'iv,
.1

1'.

1.

-" l!!_. .r.

16

INTRODUCTION

TO

LEGAL

WRITING ANI)

cs.
MALiCIOUS

7. DILATORY. TACTICS. INFLICTION OF HARM

HARASSMENT,

ILLO
a lett

actions,

SomNimcs,. or lise

clients will want lawyers to write dilator y tactics til harass somCUIJ':.

letters, We Diso.:ipJinary

.. .
'"
:

Rule 7-1()2(A)(I) prohibits lawyers Irnm Filing it suii , asserting a f'1I"ilillll, c.mducti i\g a def cnse, delaying a Ir ial, cr tak ing other . action on behalf of (heir clients when the y know or "when it is obvious that such act ion would serve merely to harass or maliciously injure anollu;r.,,7.I,

Aronson' 1.II1U cckstciu W assert that when "the law is not an obstacle hili the client's case is weak on the facts, the lawyer may. still pursue it unless Ihe purpose is merely to harass or maliciously ill jure another person. If that is the client's mot ivation, the attorney may DOl file a suit, assert. a positin, or deJaya trial to effect such a purpose.,,2
In addition to the provisions of Rule

conduct
11

a defense, 9. DI.
above,

quoted

Federal

Rule Tbe

26 fOl:uSCS
I hat

on {h'C abuse

of discovery:

;'.! .i.

of the attorney or party constitutes a the siencr has read the [discovery] request, response, or objection, and that 10 the best of the .<ijgncr's kuo wlcrlgc, in Ior uun ion , and be lief l'nr mud after a reasonable in'lll.iry it is: (1) consistent wil h these rule's and warranted by cxrsung law or a good faith argument for !he extension, mOIJific,llion, or reversal of cxisti ng la w; (2) not interposed for any improper purpose,
certi Iication such as to harass or to cause
CCli;!

signature

obtainc may I rcpresc rcprcse

In. C
reveal. Further

unnecessary

delay

or

needless

increase

in the

of jitigation;

and

the anr kept co

would

(3) not unreasonable or up-duly burdensome Of cxpe nsivc, given the needs of the case, the disCOVI!J Y already had. in the case, the amount in controversy, and rhe irnpcrtnnce of tl!c if-sues at !-:l'.1kc ill i hc litigation.28

M though rcqueste before

con Fider

8.

THREATS
Lawvcrs

OF (:RiMlNAL
m ay not
II

l)ROSECUTION
criminal charges solely
to

T
threaten gain .. 0

advantage

'in

civil

1Ui:lli.:r.29

exceptio may re

261';k,dcl"Code. ~urr~. not e 10, DR 7-102(1\)(1).

27H. Aronson ,?,SFcd. H. Civ. & D. Wcckstcin, P. 2(,(~). P), l)H 7 IC)5(/lj. 3'.pr:1 note J~, at 2H~.

30

re Cohn, gain an a

31 Hu[<; 4.2.

2\1)',101)(.:1

Cod,:, ",,,pr;c !I<,I(:

0!-'.....'1.:!!!.cl!.:i
;.,

/\,ul<),allOl),

At Inrnc y

Inili-tlling, or ThrC!l.I.cnilig ((I ~ljli,"c. Crimi.. l,,1 l'ru:,;ccuq<Hl I Oisciplining Counsel, -t2 A.L.H.4Ib 1000 (1')85).

Orou,!Lfu!:

32

!~ ~;:\:: ..

~.:.

:.1

Sec, C ~~~------~ .lj:THICAL

JOUS

DUTIES

AND LiMITATIONS.

17 -------~

ILLUSTRATION
A lawyer

1.15 .
was disciplined for mak ing the following threat
II)

, file
Iinary .ing a other it is

a leiter: 1 am gl vmg you an opportunity of making an- amicable settlement on behalf of my client ... for Ihe injuries she has suff ercd, 11nlcss you shnw sum c substantial c '/ ide IlC": 01" Yt)U r \.... ngll~~:-' to COli) pcnsate ilii I her 1 for her inj urics, l shall have no other alternative but to im nied lately cri minally prosecute you for assault against my clicut. In addit inn til that, I shall institute civil action for ll~f amount of damages which [m y client} has sllffcl'cd.-o .

,s~ t~L
.ot an
t may

iously , the Iense,

rbove,

9. DIREC'.l' COMMUNiCATION Unless prior consent obtained or communication

may
no!

WJTU REPRESENTED

PARTlES

of the adverse parry's lawyer has been is otherwise authorized by law, lawyers
directly with a party known to be

communicate

represented ht; representation." 1

counsel

c[)nccrmng

the

"subject

of

the

Except in limited circumstances. lawyers may not knowingly in format ion protcc tc d by il ttorucy - clicn t pri vilcgc. Furthermore, Ia wycrs arc obliged not t o reveal information outside the att orne y - die nt pri vilcge that (1) the eli en t has rcq nested be
re v (~al kept conf'idc ntial, (1) would be cmb'!H<!ssing would lib.:ir be harmful 10 i hc e!il:nl."l2 to the client, or (3)

Model Rule l.(i culurgcs the Model Code by applying ialit y n:s; r ict ions to :tIl in Iormation about a client, even though the infurmatiou i:-. not embarrassing or the dir:nl has nol rcq nested con Iidcnt i:liilY and even il the ill formation is acquired before or afler the attorney - client re lationship existed ..
coufidcnt

am an

exceptions,
may

Model Code and Model Rules both provide various For example, Motle l Rule 1.6(b) states that a lawyer reveal confidential int'orrnarion "to the extent the lawyer
The

In re BVn!i.!.I!, :!26 ,\.1). 468, 4 r,~. 2:15 N. Y .S. ezz, (,.23 (1929}. t\r.cotd l.!! Ie Coil.!!.. 16 N.J. :!U2, 2U3-01!, 216 A.2t! I. 2-4 (lW.(.) (bj~~"my ch<tr~c~ usee to
;;'ilill ;"1 ,HIIi,ullage in

'JO

civil suit).

iotauon, !Ild fot

:J J l\.h)llc:.1 Code, !>u1)[<1 lIule j n, J) H 7 I rJI( j\)( I); M odd H ules, Ji!!J!!:J! tHiI e ! I , Rule 4.2. ~ also An rWI;1IiOIl, A!~IJ.r.!I~.(~ _,kLllinj', Din"',ly wi I II CHen t (If l\not t,,:r 1\tlOrnc'i us (jroulld I~>r.Disd nli n"J<"n:di !.!!~. I A!..I{'Jd 1'13 (! %5).

"<If.,.

"

];,l

s",:

MOllci

COl.Io.:; !\Ullt'!

1101c

10, I>H -1.

II)) {I\},

(II j(

l}.

18

INTRODUCTJON

-TO

LEGAL

WRITINC

en. 1
legal condu appeal been
prcjuc

reasonably believes necessary . . . to prevent the client from committing a criminal act that the lawyer believes. is likely 10 result in imminent death or substantial bodily harm."33

] 1.

EX PARTI~ COMMUNICATION

WnH

J um: ES

be]

UI

The disciplinary rules pruhibit ex parte communicai ions with judges. Specifically, Disciplinary Rule 7- 'j 'J O(B) provides Ihal in an adversary proceeding, a lawyer shall not com municatc about the merits of the cause with a judge before whom (he ~)r(,cL'cJin~ 1$ pcndi II g, exec pt (1) Ii;;) tile course of official j)l'()/;l:!:iings; (2) liJn writing if [the luwver] promptly" delivers a copy oflilt! wr i.Irig (0 opposing counsc l ()f 10 the adverse p::r!y if [t hut party] is not represented by a lawyer; ('.) loJ!'al1y upon :.:.;icquatc not icc [0 opposinj; couusci or to the adverse party if l.lhal party] is not represented by a lawyer; or (4) as other wise aut horizcd hy 1;.)"""11 ..

13.

pl1rp()~

ILLU~ from
sim ula

ILLUSTRATtON

1.10

A Florida auur nry was suspended from the practice of law for one year because of his e x parte communications with justices of the Ftor ida Supreme- -Court about the merits of a pending case in which his client h;id an interest. in this instance, the attorney's communications included discussing. the case during a golf game with the justice who .had been assigucd In write the opinion. The attorney later submitted an in formal memorandum of law to (hut justice without notifying counsel or record or

having
-r

copies served

on

counsel

of record.J5

s
l (

!.'

12. . APPEALS TO RACIAL, REGIONAL PRIJUD!CE~ In legal you writing

RELJ(;(OI.IS,

NA'TIONAI"

OR

and in appearances

arc

required

to avoid

appeals

10

before judges and juries, prujurl i ccs uu rcla.cd 10 t hc

jurors,

J
ar

------~~--.-----------------.----33Modcl
30\

Rules, supr:, note 11, Rule L6(b)(1).

or Rcli!!.i< 303 (1~51

Religion: lR7 Wis.
advancing

Model Code, supra note 10, DR 7-11(){IJ)(J)-(4). Sr.l: "),,,) .\'\{)()::I !~ulcs, .supra note 11, H uie 3.5. ~cc general!y Annouuion. l)j~cjrljrIlH.Y ~\(r ill;) AI'"ir!_ Attorney Based (In COIll!llUnic.:alion~ to Jm)).;\! HcspcctinL_.vl:;;,j''; ('.r C<lUSC, 22 A.I..R.4Ih 917 (19R3).
3!:>Florilla liar y.,...Ma,:oll, 334 So. 2d I, 2-3 (Fla. 197(,). j('()f!!, J.lcavcy v. St(ll[e Bur, 17 CoaJ.. 3d .5)3,55'>,551 P.2d 1238, 124142, ~3; C;l!. 1(1'''. :H)!" 40'i-1O (1976) (a Califoruru attorney was dist:ipl!n~d I'llf Wriliu!; 1n ;, jl'dl~'-' "J;oul :1'0; 1111:"" of a pcndjn~ case wiibour f,~rl)i,.I;illg " <'('py e!f. r hc t..:1''''.". 10 "J>!,().'.II!'~ n ""l."'<: I) .

. 31

never att.

35 . involving

'Ie

.,..... ~.

....

28

INTRODUCTION

TO LEGAL WRITING

cs.

Section 1 D.

Baste Elements of Legal

Writing Style
This section presents the basi c elements of legal writi'ng-..style used in written work for judges, lawyers, or other legal audiences. 1.
CAPITALIZATION

(0)

Descriptive, Names 0/ the Litigani

~ NOT CAPITALIZE PLAINTIFF, DEFENDA/fT/ .,,-/ APPELLANT" OR OTHER DESCRIPTIVE NAMES ,FOR THE LITlGA.NTS: IN LEG4L ,WlUTIlfG TExf. , Descriptive names for should not be capitalized. ILLUSTRATION 1.20 the litigants in legal writing text

The respondent failed to appear at the deposition. The court held defendant Smith in contempt. (b) References D~,ived From Names 0/ Specific Constinaions, ond Tilles of Governmental Officers /CAPITALIZE REFERENCES DERIVED FROM PROPER ( NAMES OF SPECIFIC UW-S. s Laws,

,.

, In addition to capitaliziug the proper Dames of specific laws, references derived from those names should be capitalized in legal writing. ' Note, however, thal many secretaries have been trained not to capltallze common- noun references to Jaws (e.g.;: the code). 1l.I.USTRATION 1.21

the A~t (referring to the Federal Trade Com mission Act) the Code (referring to the Uniform Commercial Code)' code pleading (referring, for example, to the reform of common-law pleading by tbe various state codes) . ~ITALIZE CONSTI7TITIO~ STANDING ALONE, /' ONLY WIlEN IT REFERS TO THE U.S. CONSTITUTION.

' " ",

,~

, l,

... I~.

1:-

...::.....

'\
\

Ch. 1

. Se~. D

BASIC EU!:MENTS

OF LE(;AL WRITING

STYLE

Z9

Aal
itins style
a~dienccs.

Capitalize "Cuustitution," standing to the U nited Slates COristitution.46 nLUSTRATION 1.22

alone, only when it refers

t
;
;
I

the constit utioa (referring the Constitution (referring

to the New Mexico Constitution) to the U.S. Constitution)

;~ITALIZE NAMES OF PARTS OF CONSTITUTIONS, STATUTES, OR OTHER GOVERNMEN'fAL ACTS ONLY WHEN THEY ARE CONSIDERED TO BE A DISCRETE BODY .OF LAW. Parts of constitutions, statutes, and other governmental capitalized, especially in law review wriling.47
1.23

r
;

acts

arc
i
j

Dol

ILLUSTRATION text

j.
tiling

article ,I. section 8, clause 2 of the Constitution

the twenty-first amendment section 201 of the Civil Rights Act of 1964 On the other hand, wben they are "generally considered to be discrete from the remainder or the governmental act, common -noun substitutes referring to parts of constitutions, statutes. or other federal, slate, and international governmental acts arc capitali:ted.48 /l.LUSTRATION 1.24

It .

fic Lows,

We laws) t in legal i\ trained he code).

The "Bill or Rights" law."9

is considered

to be a discrete

body of

REFERENCES TO AMENDMENTS TO CONSTITUTIONS ,.MAY BE CAPITALIZED IN ..PERSUASIVE WRITING.

n Act) ide) .

7...

I )0

.46USOC, supra note 6, at 32 (Ihllc 8). (Appendix 1).

J\ccord Chicago Manllal,

sl,Ipra note

-Iorm {If

47 See !lliQf, ~.12!! note 6, at 32 (Rule 8). cr. Chicago Manual, supra note 7, at 30 CNames of parts of 3 eonsriunion or statute IUIIY be capitalized when used in ,In linglish sentence 8S proper nouns .... -). 46Tcxas Law Revie .... Manual o( Style 3 (4th ed. 1979) (hereinafter ~ Style MI,nul.l) (Rule l:~'). g.~, sUIHa, noh: 6, at 32 CBiII of Rigbts"); Chic!lgo Manual, SURra note 7, at 30 (Ptul~ may be capitauzed).
49Sec

-fON,

lIS{n:.

t;~pra Bole

0,

III

32 (Rule 8).

....

:~~

'"

.~i .
~.. .

...:,~~ . :~.

.,

./ I

30

INTRODUCTION In persuasive legal

TO writing,

LEGAL you

WRITING capitalize

Ch. 1 amendments

may

to the Constitution "First Amendment") your advantage. /

(for' example, the "Seventh Amendment" or to emphasize their importance when it is to

/' /~=='=============-=====-==~~.

~
FROM ,TITLES

CAPITALIZE REFERENCES DERIVED OF GOVERNMENTAL OFFICERS. ILLUSTRATION 1.25 (referring'

==_-=-=====_====r=_= __",,,='=========== ~ ....

the Commissioner Revenue)

to the Commissioner

of Internal'

(c) Governmental Entities and SubdivisWns CAPITALIZE REFERENCES DERIVED FROM PROPER NAMES OF GOVERNMENTAL AGENCIES. Il.LUSTRA TION 1.26

the Board (referring to the National Labor Relations Board) the Commission (referring to the Federal Trade Commission) IN LEGAL WRITING, GOVERNMENT. DO NOT CAPITALIZE -FEDERAL

In legal writing, "federal government" should not .be capitalized even tbough it is used 10 refer to the United States Government. ./ CAPITALIZE WORDS DESIGNATING' POL/~ICAL ' SUBDIVISIONS WHEN THEY.ARE ESSENTi.AL ELEMENTS OF SPECIFIC NAMES;, IN LAW' REVIEW WRITING, DO NOT CAPIT.A.LIZE THEM WHEN THEY S1"A.ND ALONE OR PR,ECEDE A PROPER NAME. Words designating national, regional, subdivisions ordinarily arc capitalizcd : when elements or specific names. ILLUSTRATION 1.27 or, Iocal are political essential

they

Washington State Dou~las County

\:

,~.(~

~.:.:

-A.'

_':"~.t

.'!

"

.!~--.

)'1.

~"~

;: "::.

BASIC ;:n18

F:LEMENTS

OF LEGAL

WRiTING

STYLE

3l

or
i

to

The general rule is that words designating national, regional, or local political subdivisions are' not capitalized when they precede 5o a proper name or stand alone, especially in law review writing.

ILLUSTRATION
county cou nty

1.28

of Douglas governments

the stale of Washington ""IN .rERSUASIVE LEGAL WRITING, CAPITALIZE STATE" WHEN IT REFERS 1'0 A SPECIFIC STAlE OR TO THE STATE AS A L.ITIGANT (BUT NOT WHEN IT REFERS ro THE STATE GENERALLY OR AN INTERNATIONAL E!'1T1TY) TO EM.rHASIZE RESPECT FOR THE STATE. Many legal writers apply a special rule for "state" in pe rsuusivc legal writing. To emphasize the sovereignty of a state, these writers capiralize "state" whenever it refers to a specific slate or the slate as a litigant but not when' it refers to the state generally or to an international entity.

JlRJ

to

:d)
)0)

ILLUSTRATION

1.29

Slate (referring to the State or Washington as 'a litigant) the state courts (referring to rhc state generally) 'he !.Iilt~:'s witness (referring to the state generally) Upper VoILa is a slate (referring to the stale as . international entity)

. srate of Washington

an

(d) References

"Court," "Supreme Court, "Justice," "Term;" and to. Specific Courts

Othu

..,/

CAPITALiZE THE FULL NAMES OF SPECIFIC COURTS . CAPITALIZE REFERENCES DERIVED FROM THOSE . NAMES, EXCEPT WHEN aCOURT- OR SUPREME COUR.T" IS USED ALONE.
:..... =.===

. In addition to capitalizing the full names of specific references derived from those names should be capitalized, when "court" and "supreme court" arc used alone.

courts, except

ILLUSTRATION

1..10

;O""d ~.

al

J :1 '(R ule 8).

."

: ~:

..

'M.,

III 'SffS'

,.,' $"'0'

77 sp rm!!tty'. ,

pp

;u._.__

I]\'TROlHJCIHH'I!

TO L(:;(;AL

WRITING

Ch , -_._---l

ILLUSTRATION

1.30

Supreme Court of Iowa (full name of a specific court) low;'! Supr ernc Court (full name of 1I specific COUlt) United SEales District Court for the District of' New Jersey (f'u ll. name of a specific court) Fi.r:;l Circuit (ref'er rmg to the United States Court of Appeals for the First Circuit)

A general ll-LUSTR./l nON

lil\': court

reference, 1.31

however,

sbould

no! be capitalized.

of appeals (general reference) a [cucral ' district court (general reference) the circuit courts (general reference) a county court (general reference)

CA?lTALIZE COUil1~" SUPREME COURT,' "JUSTICE,' ANI! ~'I'ERM,' Sl'ANDING ALONE, ONLY WHEN THEY ReFER TO THE U.S. SUPREME COURT OR ONE OF ITS TERMS. IN PERSUASIVE WRITING, TJlBY MAY BE ; CAP fTALIZ/!).

======"'>""~~',"
When standing
capitalized only when

alone,
they

"court"
rc Icr

and
to the

"supreme

court"

should
51 Court.

be

U_S. Supreme

ILLUSTRATION
The granted

1.32

Court (referring to the United Stales Supreme Court) the stay of execution. TI,,: {'IHI!'( [rcf c rr ing , for c xum plc , to the United States Court of Appeals [or the Ni nt h Circuit! reversed the judgment of the I rial COLI rt. The Supreme Court Ircfcrrillg to the United States Supreme Court] noted probahle jurisdiction. The supreme court [referring to the Wisconsin Supreme Court] dism isse d the appeal because it was moot. An exception to the above rule advantage to emphasize respect may be made for the court. when

it is to

your

iLLUSTRATION
may

1.33
III t hc state cnurts of Minnesota, <.15 ail ad vocate to cap italizc "supreme

If you were litigating he [0 you T ad Vall rage

it

,--------------~ l~. at 32 (Rule 8). ~ Chic.ag,o Manu~!o ~.!!.!.2. note 7,

~I

Tt;lE'_~IXJc "'tilL1_ual, m!.UI. note 48, refers 10 the United Stares Supreme

at 6 (Role 1:15) (capitalized only Court or :0 ar. intc:rnati,.)II.11 court).

ir

30. cr. "court"

-,-

_. Cb.

1
cnurt ," sl,wdiog
COli rl.

alone,

when

YOII

r c Icr

to the

Minnesota

Supreme

curt)
)
W JC'tf>(;Y

Capitalize "term" and "justice," standing alone, only when they respectively refer to a Term of the United Stutes Supreme Court or It) one (If its Justices.

~ourt of

ILLUSTRATION
recused Court],

1.34 [rc Icrring to U.S. Su premc .

Court

Two J usticcs themselves.

Justices)
Supreme

During this term (referring the justices heard fortypersuasive when the legal

to a term of the Florida five criminal appeals .

. In

writing,

"justice"
particularly

when you arc referring

written

you may want to capitalize stale supreme court justice, product is directed to that court.

toa

(e)
F; ITS

Trademarks and Service Marh

TRADEMARKS
I

r=
I

. CAP1.TALIZE =.,""' ===--== ...

==.====

AND

SERVICE

MARKS.

ihould be . 51

t)urt

.e Court]

Capitalize trademarks anti services, especially when tbey belong to' your clien ts, Pailu rc to capitalize words claimed as. trademarks or service marks can contribute to the ' "generic deterioration" of such words. The lack of capitalization may be. used as evidence to prove the mark has become a generic word (which may result in the loss of the right to exclusive use of the rnark).52

.es Court :t of the Supreme

Supreme

(fJ

.Headings and Titles

==."" === ... .......

~---=

-=.' ~~."'=--====

=-====,=

it is to

IN HEADINGS AND TITLES APPEARiNG IN LEGAL WRITING. CAPITALIZE THE TNITIAL WORD; T#E . WORD IMMEDIATELY FOLLOWING. A COLON, AND ALL OTHER WORDS EXCEPT ARTICLES, CONJUNCTIONS, AND PR'EI'(}SITJONS OF FOUR OR FeWER LETTERS. USE SAME RULE WHEN YOU Cf.TE NAMES OR TITLES.

nus

.======
nesota, it "supreme
requires Unless otherwise directed, follow capitalization of the initial word, (he the

USOC
word

rule that immediately

i:\1: 3{).

cr.

, If 'court' ).

52Scc~, Haughton Elevator Co. v. Seeberger, (Comru'r 1'111. 1950) (""scalalOr" generic) (misused correspondence, and advertising}.

85 U.S.P.O. in patent .

(BNA) 80, 81 applications,

!~, \: .:

34
following conjunctions,

(NTRODUCT10N a

TO

LEGAL

WRITING

Ch. 1 except articles, letters in

colon, and all other and' prepositions of four'

words
or fewer

titles, (3) cited names, and (4) cited titles.5 According to the USOC, this rule should be followed even when 'it causes a departure from the capitalization used in the cited headings, (2)
:murcc,S4 . LU you are going

(ll

ILLUSTRATION

Assume that the title of the annotation is gi lien in the A.L.R. volume as follows:

10 cite

. of business under
would be capitalized

,Religious activities as 'doing or transaction "long - arm" statutes or rules of' court Pursuant to the

USOC rule.

this

title

as:
'Annotation,

Business

Under

Religious Activities as Doilg or Transaction MLong-J\rm..:' ... Statutes or Rules of Court,

compounds

of

26

A.L.R.4th 1176 (1983). (Both words in hyphenated <-Long-Arm" 'Statutes) should be capitalized.)

(g)

Word., Fol/owing

Colons

WRITING TEXT, CAPITALIZE THE INITIAL OF THE. wosb FOLLOWiNG A: COLON" ONly , WHEN IT IS USEFUL TO EMp,HASIZE THAl' woRD1

LETTER

IN LEGAL

Capitalize

the text only when ILLUSTRATION

the initial letter it 'is useful

of the word to emphasize

following a colon that word.

in

1.36

The court- should identify' three categories of consumers: those for whom the mark is solely source-signif'lcant and not the' ge ncric IIU!\1C of the PWdUC(i those for whom the mark lacks any source significance and is the generic name of the product;- and those for whom it performs bot It functions. (Emphasizing tho:o;e~ would not serve a useful purpose.)

or
this one:

all the procedural

Never omit

rules that musr be learned,

remember

"never"

a compulsory counterclaim. is accomplished by, capitalizing, it.)

(Emphasizing

53

!Q,

5upra note 6, at
Y.

31 (Rule: 8),

5"'10. at

Ch. 1
~ articles;

Sec.

BASIC

EI.EMENTS

OF LEGAL

WRITING

STYLE

35

PROBLEM
should Indicate

1.10

~rs in (11 !d tillr.l'.S ~VCD when the cited

below, indicate the leuers that underlining beneath the letter. letters that should be typed in lower case by making a slash mark through the letter and by writing "lc" above the letter, Assume these sentences appear in an office memorandum or law , and arc related to each other. (a) The

For each of the sentences be capitalized by ,triple

.ing to cite

eighth

circuit

affirmed

the

refusal

to .grant

the

injunction. (b)
-the 'United

JlC;'S

under

The U.S. Department

Stales Supreme Court,

of Justice

tben sought

review

10

capitalized
of 26 compounds ,lsaction

rulli,
, ,

'(c) The U.S. Attorney General argued OD behalf of the Federal Government that (1) the federal district courts did have the power to hear the case even though' the state of Minnesota ,was a party to the, action and (2) the U.S. District Court for the District of Minnesota could enjoin the Minnesota ,supreme court from hearing the case.
(d)

Eleventh
Injunction
VF

the other hand, the Respondents argued that the Amendment to the U.S, Constitution and the AntiAct, 28 U.S.C. 2283, applied to this case. Under that act, writs of injunction to stay proceedings

On

===

(c)

-== a colon I. in

in any court of a state have been prohibited since 1793. 'See Durfee & Sloss, Federal In junctions agl:tinSl Procc~dings in SLaLe Courts: the -Life History or a Statute, 30 Mich. L. Rev. 1145 (1932). (f) fa au opinion accompanying. the court's refusal the case this term, the justices refused [0 speculate on the constitution or that act applied to a stale court appeal the issue was moot. '
to bear whether because

consumers; rd not the

Stop here, and edit the cupitalizasion in the above sentences before consulting I.h~ discussion oJ this problem in Appendix A.
Z. QUOTATJONS

lacks

any'

oduct; and ing "[hose"

remember .mphasizing

PUNCTUA TE' QUOTED lIlA TERIAL FOLLOWING THE TRADITIONAL RULES: (1) PLACE COMMAS AND PERIODS WITHIN THE QUOTATION MARKS; (2) PLACE SEMICOLONS AND COLONS OUTSIDE THE QUOTATION MAR.KS; AND (3) PLACE QUESTION MARKS WITHIN THE QUOTATION MARKS WHEN TilEY APPL,,( TO THE QU01'ED MATTER ONLY; ~OTHERWISE.
PLACE THEM OUl'SllJE THE
MARKS.

"'j

1:-

~.

.'

36
Place

INTRODUCTION commas and

TO periods

LEGAL within

WRITING the quotation marks.

cs.

fLl.UST,RATION

1.37'

The Cou rt essentially agreed, slating that" "an unexpressed purpose to nullify a stale's control over its officers and agents is not lightly to be attributed to Congress." (The period is. within (he quotation marks.)

Place semicolons ILLUSTRATION 1.38

and colons outside

the quotation

marks.

This concept is known by the term; "free ride"; .if one person, for example, erects a lighthouse, many will "free ride" on its benefits. (The semicolon is outside the quotation marks.)

Place question marks within the quotation marks apply to the quoted matter only; place them outside when they refer to the whole sentence. ILLUSTRATION i.39

when they the marks

In some instances the seller will 'probably encounter the .consurner response, "I agree that it looks like plexiglass, but jf your su bstitute brand of cast acrylic sheet is really 'Plcxiglass, J then why i.~Il'1 it called that ?" .(The question mark. refers to .only the quotation and, therefore, is within the quotation marks. Ouotes within quotes arc indicated by single quotation marks.)

Does "Wilson Art" brand decorative laminated plastics really possess the durability that consumers associate with "Formica"? (The question mark refers the entire sentence and, therefore, is outside the quotation marks.)

to

DO NOT USE QUOTATION MARKS WHEN }fIFTY WORDS OR MORE A.RE QUOTED; INSTEAD, INDENT THEM FROM BOrH THE LEFT AND RIGHT MARGINS . .ILL US TRA

itos

1.40
the following quoted from is indented appears in a memorandum. the case is more than fifty from hoth the left. and right

Assume

that

Because the material \\o'ords,5S the quotation margins.

~ USOC. suprll note 6, at 25 (Rille 5) ('!;Ialinr. Ihe above SO-word rille). Chicago M.,ilUal, supra note 7, a! 2'1 (slating Ihllt quol;ition. running more than SOc lilies of ICl<~ should be in btock rorm).

55

cr.

..
.

_ Cn. l .
lrk.!I.

Sec. D

BASIC.

Ef,EMENTS

OF LEGAL

WRITING

STYLE

37

In I.h!:-;c:n v. Mit wilU kcc A utlllllnbilc M lUill In;;urancc Co .. 18 Wis. 2d 91, 118 N.W.2d 140 (i962), the Wisconsin Supreme Court held thai. falling aalcep al the wheel of an automobile is negligence as a matter of 'Jaw.' The court explained:

asleep

Normally reading

DO

the

.; if one . ride" on

opinion. In the have fallen asleep while driving and the likely would have had enough horse sense even to take the dri ver. home through instinct quite safely. But falling asleep wheel of an auto propelled by 200 or 300 horses having no horse sense is entirely

harm will be done if one falls newspaper after dinner or this horse and buggy days, one mjghk,~
horse quite to stop or habit and behind a mechanical a different
<,

t't'ks.)
'.

~hen they

he

marks

matter in terms of your duty to others. .'. . When one is under a duty to use care not to inj ure another, . he cannot fulfill the duty by falling asleep. We must approach a sleeping driver case on the premise the driver bas the duty to stay awake while he drives and it is within his control either Slay awake, to cease driving, or not drive at all when

to

to

sleepy ....

inter

the

;, hut if .exiglass,'
~ to only
I

marks.

We exclude from this holding those exceptional cases of loss of consciousness resulting from injury ill Hictcd by an outside force or fainting or heart attack, epileptic seizure, or other illness which suddenly incapacitates the uri ver of an automobile and. when the. occurrence
with
gil

iarks.) ics really ,:;'ortnica"? refore, is

of such disability
or should

is not attended
not have

fficicnt

warning

been

reasonably

foreseen. 118 N.W.2d at 143~44: 14344,-)

18 Wis. 2d at 97-99,

The citation ("18 Wis. 2d at 97-99, 118 N.W.2d at

JRDS

is not included with the indented material. As shown above, it is given on the line im mediately following the block quotation at the left-hand margin,56 In double-spaced legal writing, block quotations arc traditionally single-spaced. .

When a -block quotation is used, the paragraph structure of the quoted material should be shown by further indenting the first line of each paragraph. The first quoted paragraph should be
nrandum.

iau fifty
rnd right
e.

indented, however, First word of the

only

when

original

paragraph.57

the

first

quoted

word

is in fact

the

~.

56! r~()f:, supr:l

note 7, ut 2Y,

note

6, 1'1 25 (Rul<: 5. J).

Llu:!!ll!

('nicEll\o

Mom!!ll,

su (lrll

"
''''(It'd flll~),

!~ .

ItlNe Ihlln

r:. R;

57 USO~, supra note 6, 81 28 (RLlle 5.4) rNofilluJly lit the beginning of 1b~ . quululion in the above example was the fitSl word in the paragraph in the
OTigIDIII).

.. _. ,-

.. --

~ ". ~~

ft..

38 ENCLOSE

INTRODUCTION

TO

LEGAl.

WRITING

Cb. 1

ALTERATIONS

OF QUOTATIONS'
._.===:

IN BRACKETS
in

Brackets should be used to indicate material. or to add clarification. sa ILL US TRA TION 1.41

alterations

quoted

The court specifically pointed out that "[nJo warranty representation was made by the insured." ("N" in "DO" capitalized in the opinion quoted.) "When
governmental made QUI."

nor was

a restraint upon trade is the result of valid action, no violation of the [Sherman] Act can be ("Sherman" was added for clarif'ication.)

~~~.~"_-===-=~-======'~"== __~=-mN _ USE, BRACKETS ,:TO.' ENCLOSE SIC'.""TO. INDICATE

~,)l(;NipicANT' MISTAKES

IN. OUOTEb' 'MATEluAL','

after

"Sic" means "iutcntionally so written" and is used immediately a quoted word or words to indicate that tbe original .has

been exactly reproduced. retained; signi Iicant ones U(Sic]."59 ILI.USTRATION 1.42

Errors in the original should should be followed immediately .

be by

. The contract stated, "the insurer {sic} shall notify the inSUrer) uf any loss! . (USic" is used .to. iDdic~lC the e~r~r iu thc original.

"Insurer"

s~ould have -been "lnsured-. TO INDICATE

10'

the original.) IN QUOTED ...

USE EIJLIPSES MATERIAL.

OMISSIONS

Ellipses arc punctuation marks indicating an omrssion. Some publishers use asterisks ( .. .. ) or other marks to indicate omissions. but in most legal writing three periods are used, set off by a space before the first, after the last, and in between each .. peno d . 60 .

58.!!!. III 26 (Rule 5.2). S9s' ~

. ~Ullru nOIC

~
",

Chicago Manllal, "2~ III

.. (I' I ul e

supra' note 7, al 29. A

7,

U""()(' _'_"-', ~Jl"'!! 91 29.

note

52) .

C hu;al!.o M IiPUIi I, .

60~.

Itt 26 (Rulll 5.3).

<II

-l>.

-_._ ...

... _------_
'

.~;

ell. ---~ 1

Sec.

lJ

. BASIC

ELEM.r:NTS

Of

LEGAL

WRITING

STYLE

39

.. ,.--= 'l~ACKETS.
In

ILLUS1'RATION
Consider

1.43
following portinn of the

the

Theisen opinion:

quoted

arranty "no"

nor was

of valid ~cL can be ~ ;..,~ ~

l
f

~ {mmediately

)riginal
should .diately

bas
be

by

the insurer le original. ....

J. .

PT.(W1

Normally no harm will be done if one fans asleep rcading the newspaper after dinner or this . . opinion. In the horse and buggy days, one might have fallen asleep while driving and the horse quite likely would. have bad enough borse sense to stop or even to take the driver bome through habit : and instiuct quite safely. But falling asleep behind a wheel-of an auto propelled by 200 or 300 mechanical horses having no horse sense is entirely a different matter in terms of .your duty to others. We recently pointed out the increase in the frequency and in tbe seriousness of thc consequences of automobile. accideuts today resulting from modern, high-powered vehicles. The increase in rrsks : and hazards of driving an automobile On public highways demands greater skill and attention .Ihan 40 years ago. When one is under u duty to usc care not 10 injure another, be cannot fulfill the duty by Ialliug asleep. We must approach a sleeping driver case on the premise the driver has the duty to slay awake while he drives and it is within his control either to stay awake, to cease driving, or not Lo drive at all when sleepy. Up to nOW no decision bas gone beyond the lim its of the well established rule that the fact the driver of an automobile goes to sleep while driving is a proper basis for an inference of negligence sufficient tu make a prima facie case and support a verdict for recovery if 00 circumstances tending to excuse or justify such conduct are proven. This problem is the subject of an extensive. annotation, Automobile=-Illness . or Drowsiness, 28 A.L.R.2d 12.6L Note how ellipses omissions in a quotation would of the

~
r

be

......
Some

used to indicate above opinion:62

the following

HOD.

\0 indicate
;ed,. set off :ween each

(1] 10. the horse and buggy days, one m ight have fallen asleep while driving and the horse quite likely' would have had enough horse sense to stop or even to take the driver home through habit . and instinct quite safely.

(1] Omission at the beginning of the quotation (no ellipses used)

i7.
:~o

III 29.

M~ual.

61Theiscn v. Milwaukee Auto. Mul. Ins. Co., 18 Wis. 2d 91, 97, 118 N.W.2d 140, 143 (1%2) (footnote omitted). 62~ USOC. supra DOle 6, at 21~28 (Rule 5.3).

----

__ ~.~S~41~'=.,__-

~~

__ --------------

.,'

.. ;

40 But

INTRODUCTION

TO

LEGAf.;

WRITING

Ch. 1

falliot4 asleep behind

wheel of au auto ... is 12} entirety a different matter in terms of your duty to others. . . . When p] one is under. a duty to use care not to injure another, [a driver] [4J cannot fuJfili the duty by falling .asleep. We must approach a sleeping driver case oil the

(21 -Omissioa of material. ("propelled by 200 or 300

mechanical horses having no horse sense") in the middle of the quoted sentence . shown by ellipses. [3} Omission 0[' material after the end of 'a quoted sentence. by the insertion of three periods after the final punctuation mark of the sentence. Note the USOC leaves only one space after . the final period before beginning the next sentence. f4} Brackets indicate the change in quoted materia) ("he~ changed to "a driver") .: {5] Omission of material at the end of a quoted sentence, shown by ellipses inserted between the last quoted word' and the final
0

premise

the driver

has the

duty to stay awake .... [5} Up to now no decision has gone beyond the limits of the well established rule that the fact the dri ver of an automobile goes to sleep while driving is a prima facie cusc and support a verdict for recovery if no' circumstances lending to excuse or justify such conduct are: proven .. (61

Note the spacing of ellipses with that in [3J. [6J Omission of material
difference in the after the 1asL quoted sentence (no ellipses).

punctuation

mark.

as

In the above Illustration, the quoted language stood by itself fuU sentences. Wben the material quoted appears as a clause or phrase in one of your sentences, ellipses are not used to indicate language omitted before or after the quoted material. ILLUSTRATION Assume
that

1.44
the following is your sentence: Mutual Insurance Co., Supreme hald] gone beyond fact the driver of proper basis for an prima facie case."

"In Theisen v, Milwaukee Automobile 18 Wis .. 2d 91, 118 N.W.2d 140 (1962), Court specifically the limits of the

the Wisconsin

pointed out that "00 decision well established rule that the an automobile goes to sleep while driving 'is a inference of negligence sufficient. to make a

lQ. at 97, 118 N.W.2d at 143. When

used in one

(No ellipses arc used). Cram

as a

you
of

omit
your

material
sentences

within the' quoted

phrase or clause,

language
ellipses

should

be used .

..

:._/

f. ~
~h. 1
fi

t
~ <: ~

Sec.

BASIC

EJ-EME~TS

OE

LE,G_~L "YRITING

STYLE

41

iIi ~dle

ILLUSTRATION

1."15

f,

tID I
no

t <,
i t

f.
~

~I

III

~d
n of Iinal

l f. ,

In Thei$cll v. Milwaukee Automobile MUlual Insurance Co., 18 Wis. 2d .91, 118 N.W.2d 140 (1962), the Wisconsin Supreme Court' specifically pointed out that "00 decision ha(dJgone beyond the limits of the well established rule that the fact the driver of an automobile goes to sleep. while dri ving is . . . sufficient to ... support a verdict for recovery if no circumstances tending to excuse or justify such conduct are proven: Id. at 97, 118 N.W.2d at 143.' When one or more entire paragraphs have hccn omitted from material included in a block quotation, four periods should be inserted and' indented on a new line between the first part of the quoted material and remaining part.63 Refer' to the block quotation in Illustration 1.40 above for an example of the omission of an entire paragraph from a block quotation.

')c
'(er
1

r,ce.

I
J. ~

~c

hl
j

b-).
11 ,
I

at

<ses

~al
i the
is.
I>

I
i tI
t

USE QUOTA1'JON MARKS TO ENCLOSE MATTER THAT FOLLOWS CERTAlN INTRODUCTORY EXPRESSIONS, SUCH AS -ENTITLED,' 'SIGNED,' 'ENDOR$ED,' . -MARKED,' MTHE TERM,' 'OR -THE WORD.'
Items introduced by "entitled," "signed," "endorsed," "marked," "the term," "the word," and siru ilur c xprcssions should be enclosed in quotation marks. On the other hand, "known as," "called," 1.46 had been Theisen." endorsed, "[l]n entire (Quotation marks settlement of all are used with quotation marks or "so-called." ordinarily are
Dot used

of

il t
j

r.

itself lause 1 tQ

!
.: f
~ 1,
f

witb

i
~ t~

ILl.USTRATlON The check claims, Sharon "endorsed.")

Co.,
'cane

f
~.

The so-called di versit y requires complete diversity of to the suit. (Quotation marks

juri.stlict inn of the federal courts citizenship between adverse parties are not used witb "so-called.")

vond
r of

r.

r an \sc.

~:

3.

CLARITY

OF EXPRESSION

,.

age

pses

,
c'
~

BRE,4J(

UP l.ONG NOU/f

STRINGS.
.....:.=:...
I..

'=,~=

[.
If

f'

63!!!. at 28 (Rule 5.4).

~!

!i.

_.~ ..... ...... _t; .... u

....... . _.J
...~-...-":"'-- ... ..

ll'

_.
'

~::::. '
~
'.

..

"

4Z

INTRODUCTION

TO

LEGAL

WR1TING

.Ch. 1

When se vera! nouns are strung together. readers of len find difficult. to comprehend the exact relationship between those nouns. To break up noun chains, Wydick suggests that . nonessential descriptive words be omitted and that some .. preposrtrons be mserted ,64
it

lLLUSTRATJON

1.47 example of a long noun chain:6S

Request

Wydick gives the following . Pretrial

noun chain) Documents

Document

Identification

Responses Identification

(long of

Rcspnnses to Plaintiff's Request (noun chain broken up) VARIATION

for Pretrial

AVOID ELEGANT

IN LEGAL .WRITING~

Elegant variation is the use of different names for the same referent. Fowler points out that "lilt is the second-rate writers, . those intent rather on expressing themselves prettily than on con veying their meaning clearly, and still more those whose notions of style are based on a few misleading rules of thumb, that are chiefly open to the allurements of elegant variation.M66 the best approach is to use the same, term throughout a document or statutory provision. Otherwise, elegant variation ill the. references may con fuse the reader and create legal ambiguitieiil.61
flu the same referent

In legal writing,

lLLUSTRATJON
by

1.48

Cunsider the following example of the ambiguities created elegant variation: "The use fee shall be 1% of Franchisee's. gross revenue. Franchise payment shall be made on or before tbe 15th day of each lDODlh.M (Are "franchise payments" something

64R Wydi<:k, Plain english fot Lawyc:rs 61 (2d cd. 19B5). 6Sld. 66H. Fowle~. A Dictionary of Modern

Hnglisb Usage 148 (2d ed. 1965).

61Sce Dickerson, How to Draft a Stalute, 31 Notre Dame L. Rev. 14, 24 (1955) ("Tb: cardinal rule of all draftillg, sometimes called 'tbe: draftsmao'!; golden rule: call be ,lilted ill four words: Use your terms cOllliilJtClltly. Fef Qllt: thill.g, don't vary your lI:tmiDology wben referring to the &amc thing, For clI:3mplc, don't refer 10 all lIutomobilc as IIIl. 'automobile' ia ODe place and as II 'molor 1I:8f' in
anotbc:r-)'.

.. _ ..

.; .. .
'

-_QJ.
.tel\

BASIC different must tbe

ELEMENTS

Of

L-EGAL

WRITING are

STYLE

find
some

en those
sts that

from the "use fee"? Ul'-C fcc be pait1?)68

If so,

what

they,

and

when

it

/ AVOID USING THE SAME IN THE SAME SENTENCE ===s==~.,._. ._=""-===

WORD IN DIFFERENT (OR PARAGRAPH),

SENSES

.es (long
cation

A void using a word' t wice in the same sentence (or paragraph) in different 5Ct}SCS because 'the reader tends to assume thai I.he word retains its same mcaning.69

IIf

ILLUSTRATION fault: "My

1.49
the following example of this type of writing

Block. provides

...

client has a cause of action against the defendant, bL!causc. the cause o~ my client's .injurie~ was defendant's conduct," _\ ("My client .caa mamtain an action against the defendant because
the de Icudant's conduct caused
In

y client's

inj uries.")

70

the same

~ writers, . thau on ~c whose }f thumb,

~liOtL,,06

rLACE

CLAUSES

AND l'liRASES

NEAR

THE WORDS

THAT THEY MODIFY".

~~==~~==~==========:=======~=======~
Ordinarily, a relative pronoun ("that; be placed immediately after its antecedent "which, W "who") should in the sentcnce.71 On

lme I
IlCC:;

term
11111)'

statutory

occasion,

all ambiguity
1,50 the

may still arise.

/
es created
anchisce's oefore the
.something .

u.t.us I'M TION

Wydick

gives

following

example:

"Claims

for

expellses~ the

which

must not exceed

should expenses

$100,

must

be made
make $100:

within
clear

30 days.-]
whether

This sentcuce claims or the

bc re written to must not exceed

68R. Wydick, !!!.~ note (,4, III 60 (stuting the: example used in the above ill ust rarlon) ('lXlo't. he afrilitl to repeat a word if it is the tight word, and if repeating it will avoid confusion"). .See also G, Block, Effective Legal Writing 61-62 (3d ed. 1'.186) CRute: Choose clarity over elegance'). 69Sce If. Fowler, supra note 66, al 32829 (clllling, the practice legerdemain with two senses"). cr. Dickerson, supra note 67, at 24 ("Dun" uSC:the same lerm to refer to different things. For exumpte, don', use tbe: term 'military' to IIlClifi just the land forces in one section lof B stat ure] and then usc: the same term 10 include 'he nuval Corrc.r; in unot her section. Consistency is a ainc qua non or .11 cfl'cdivc communlcuuon"]. . . . . 70(1. Block, Ilupra note 68. at 62-63 type Qf fault "ultr~(lui~tic subterfuge"). 7l~ W. Strunk
&;

cd, 1965;. Rev. 14, :?4 man's golden ir one thing, 3mple, don't
,ukor car' in

[also Dolin,

some liDguili($ cell Ihis

8. White,

The Elements

of Style 29 (3d ed, 1979).

72R. Wydick, supra

note 64, at "6.

~.
... _<or

,,',

,/

44

lNTRODtJCTlON

TO
CXCL:~d

LE(;AL

WRITING

Ch. 1 must be

Expenses must DOL be made within 30 days, Claims

made wi-thin

$100.

Claims for expenses $100 and

for expenses 30 days.73

must

not exceed

must

The same rule (placing' the modifier immediately after its antecedent] applies tn prepositional phrases used as adjectives. By proo Ircadiug carefully, yuu. usually will be able to identify instances ill which yuu have separated related parts of a sentence. ILLUSTRATION phrase 1.51

Wydick illustrates the improper positioning of a prepositional in a legal context with this example: "My client has discussed your proposal to fill the drainage ditch with his partners."?:.
====-==

/)0 NOT CREATE AN AMBIGUITY

,BY USING A PRONOUN WHEN ITS REFER!!-NCE IS TOO FAR REMOVED.

==--===.... ~==".=- ==-======-======--=====

Avoid placing a pronoun removed from its antecedent. ILLUSTRATION 1.52 created in a position that is too far

Consider the ambiguity following example:

by the usc oC

"be

m the

In these situations, the master is absolved from liability only when the injured party is aware or the servant's negligence and then disregards .il. It is Dot enough t.hat be (what} 'has a notion that there is a remote possibility that be (wHo?) might be injured.
< (D.O NOT USE THIS

BY ITSELF 1'0 REFER TO. PRECEDING MATERIAL, CONCEPTS, OR ARGUMENT~j INSTEAD, ADD A SPECIFIC REFERENCE.: . Confusion can
that

often

he caused
use of

by

vague

uses of

"this." .
"for

Rombauer

asserts

indefinite.

"this"

is responsible

HI" ...9..

Hid. 31 44. This type ~f error also occurs (tCqUClltly io II nooler,al context. See, e.g., Slips of the TV Tongue. Omaha World-Herald MagaZine of the Midlands, OCI. 30, 1983, a~ 12, col. 1 (Dr. Barney Clark ipc:tlt his 62nd day with an artificial heart glued to (he TV set").'

........ _- ..

;..

:.

\CS

must

I
'! ,

i ust III
ifter

be its By

more fuzzy writing by law students .than any other word: Indeed, "this" is used to refcr indefinitely to entire paragraphs, prior ideas.,. reasoning. arguments, or even Ihiugs not previously mentioned. ()

15

ILLUS'fRATJON
Consider

1.53
what "this" refers to
10

-os,

tne

following

example: of in

identify curcucc .

Sm it h's sudden mental illness caused her 10 lose control her auto.nobi!. This satisfies the te:-.l established by the court Breunig, Docs the loss of control satisfy the of the mental illness the critical element? bel ween the sudden mental illness and the automobile crucial'! Or is more than necessary to satisfy the lest?

'o)tlilionill ent bas ;ilb. his

lest? Is the suddenness Is the causal connection. inability to control Ih<; one of these elements

.vOUN

too

far

Amhiguous references can. be avoided by adding the desired reference after "this." Rombauer maintains that the best practice is simply "never to use 'this' without a following word that identifies what is referred loft by the autbor.77 Thus, after the word "this" add the proper reference (conclusion, view, idea, rule, thcnry I holding, etc.).

AVOID
in the

THE USE OF MULTIPLE

NEGATIVES.

,====="'=====

.ity only nce and 1 no\iou

"No," "not," negative meanings. "save: "excluding," negati ve meanings Multiple

"never," "nobody," and similar words have Many other words, such as "except," "unless," "until," "deny," "failure," and "absent," also have or' con notations. in the
II

injured.
you

negatives

scutcucc negative).

often

make

understand.
intend

To the extent
to emphasize

possible,

usc the positive

it difficult to instead (unless

AVOID

UNCLEAR

SHIFTS

IN YOUR POINT

OF VIEW.

-----=,-=-====~=====

~==============

"this:

ole "for

7S M. Rombauer, (4th cd, 1')113). II context. 761d. 7710

Legal

Problem

Sulviog:

An;llysis" RCsclIn:h

lind Wriling

306

Mid"HH!~, with ..,n

46

. INTRQDUCTION

TO L.EGAL

WRITING

cs.

Block points out that "[wjlrcne ver you write. you make an implicit promise to your readers not 'to shift your point of view unless . you let them know about it.' 7 B

lLLUSTRA nON 1.54

unclear Block provides shifts in the the following example of tbe point uf view can cause.. confusion that

ordinances should furnish properties some relief from. the financial burden of maintaining their property for public benefit, decline ill market value (of what'l) and diminished expectations (whose? about what?) arc not sufficient injuries lwho received? wbo. causcd l] to constitute a taking of propec~ {who took?] without j list com pcnsutiou !In whomv].

Although

zoning

owners

of historic

Block
subjects and

suggests
objects

the
of the

following clauses:

revisions.

to make

clear

the

. Zoning ordinances should furnish owners of historic properties some relief from the financial burden of maintaining their properly for public benefit." However, the injury to the landowners of a decline in the market value of their property or their diminished expectation of income frum the property is nOI sufficient [or the court to find that the stale has takcu private ptOcFcrty without compensation .to the

property

owners.s

Assume lh;l.t you arc reviewing a proposed elevator maintenance contract. Your client wants you to be sure that the contract provides protection against the various possible equipment failures that might occur. What do you think of the following pro visi'on?
and

This company housings. Would

you

will repair

or replace

worm

and

gear

bearings,

find

this

provisi?o

acceptable?

Why

or

why

not?

'/8

G,

Block, supra note (la, <It

.s 1.

791d. ' 80lQ.

l~
1ll...1
an , view . ,

I
J~.
!

~~~.. '-!.______!!_Al:!W

ELEMENTS

010' _LE(;_&L WRITlNC;

STYLE

47

,e

t
t

,.

Stop here (JIJd consider these questions b~forc consulting the discussion of this problem in Appendix A. PROBLEM 1.12

i':

~
"

that

tI;

t~
I:
l
i

Correct the misplaced clauses and phrases in the following sentences. This problem is based on examples collected h}; James J. Kilpat r ic k in his "The Writer's Art" newspaper column. 1 (a) The French government is preparing television com mercials cncourugiug the IJSC of condoms that arc blunt. enough to shuck even liberal Americans. (b) Establishments such as the instance, will have lines of people outside their own premises. (c) On Monday, Murch :lH,
III

~ i ~

f
i.

(
t

'f 1 ~.
!

Bright Star . in Bessemer, for waiting fOI: seats extending

f(

.
I

the

7:~()

p.III .

there

will

Intcrf'ait h Suppurt Group m(~cti'ng ror parents who have child [I h rough I. death at the First Presbyterian Church.

be an lost a

t
t
t

(d) One. pharmacist told us of a trying moment recently when he had to explain La a young woman how. to administer a douche in front of a small audience of onlookers.

f:
(

.'
lr

Stop here, PROBLEM 1.13

IlIlJ

edit the above sentences before consulting

in Appendix. A.

(he

dlscussion oj this problem

J
cvator III the
pnient

. owing
wby

,
~ , ~ ,
I

I
f. r.

Correct remote, ambiguous, or improper references in the following related sentences. Wrile in changes using a caret symbol to indicate insertions. Cross out or circle words or phrases in' 8 manner showing to where they should be moved or indicating that Ihey sholll~1 he deleted.
(a) caused.

by their

Holding' social hosts liable for injuries to third parties drunken driving would cause practical problems. instance,

-arings

(b) In this host to keep his drinking habits.

Cor example,
each guest and

"eye"

00

it was impossible Cor a for bim to monitor his

r. ~.
~
h j

t~) Whcn .lhe.y lefl, the host and guests to the door, wished them good everyone who was driving to usc caution.

hostess night,

went and

with the reminded

i"
~
t

f;:. '

t,.
f" f

61 J u mes J. Kil pat rick has puhliSh~d an cn tcrtaining and edaca tional selection of articles from his newspaper column in lli5 book The WritC:t"1IArt (1985).

~:

f..

_------------p

",0,,-,,-.

48

INTRODUCTION

TO LEGAL WRITING

cs.

(d) Clearly, this indicated that the, social hostess exercised the same degree of care that a reasonable person would have exercised toward social guests under these circumstances, Stop here, and correct the remote or umbigl.UJUS references before consu~t;"g the discussion of this problem in Appcndiz A. 4. TONE AND WORD CHOICE (a)
Jargon.

Archaic

Terminology,

Inflated

Ltmguoge,

and Legal

====-

-"'-=,,=======-,~.. ====-=== -

,""'-'=-=

AVOID ARCIIA!C TERMINOLOGy' AND LEGAL, JARGON The'

in flue n cc of

lNFL1TED

~.ANGUAGE,

====':"'~,========~=========
language
Latin.,

of
French,

the

Anglo-American
an d old and middle

law reflects the English. As the

language, of the law evolved over several hundred years, legal writers and the courts have tended to use archaic terminology, inflated language, and legal j argon in judicial, opinions and legal documents, Good legal writing today should avoid this kind of
"legalese .,,62
,

iLLUSTRATION

1.55

will (not "last will and testament"- -coupled synoeyrns}" gi vc (not "gi VC, devise, and bequeath"- - coupled synonyms) the premises (not "said" or "aforesaid prem ises't-vold and middle English)

beneficiary (b) Legal

of the trust Terms of Art

(liot "cestui que trust'--French)

===================-~==========~======"~~~=
LEGAL' TERMS OF ART RATHER THAN OTIJER TERMS IN FORMAL L.foX1Al. WRrJ'/NG. W/.{l!'N THE READERS TERMINOLOGY,
lLLUSTR.1n~

USE ACCEPTED

WILL BE UNFAMILIAR. WiTH LEGAL YOU SJIOULD EXPI..AIN. DEFINE, OR

1'1I[!; l'ERMS .

. ====-' -',,,-,-.'= ,=====-=

------

..._-------------

---

Usc Jargon); D. Mellillkorr, ~~rilillf'"._Scnse lind N()USI:Il~<: 12{,27, ]&'196 (19!12) (pr{)vittj"g numerous cxa mplcs or "Ordinary Old iln<l Middle H!lgli~h: 'Coupled Synonyms; "Old FOf((l;Ilisllls: "Law Latin,' and "Law French"); I), Prall, Legal Wrilins: A SY'ilcmalic Aporo;,cb 178-80 (l5l!Silj {shurt sU,mmary of the "Origics of Legalese').

!:!2S;::~G, Block, s\!pra note 61:S, it 4446 (,[Jon'! l

Se=. 0

. BASIC

t::LEMENTS

OF LEGAL

WRITING

STYLE

49

'rdl'~\1 have erences

'C

Knowledge of the Iqpl (erms of ilel comes from careful obscrvutiou uf how' terms arc used ill legal sources and the study of law. generally. In Iorrna] legal writing (such as in legal memoranda and appellate briefs), accepted Icgl:ll terms of art, not ordinary terms, should be used.

A.

ILLUSTRATION

1.56

Legal

A suddenly. incapacitated driver. loses culpability (should be . "is not liable") when cuntrol (If the vc hiclc is taken away without any Iault on the driver's part. ("Liable" is. the accepted legal term of art in this conte xt.) The court dif'[erenti ated (should (-Distinguished" is the accepted. be "distinguished"] legal term of art the two hcrc.)

cases.

ts

the .\S the

, legal iology,
I legal

The trial court abused its discretion (should be "erred") when the court granted. a motion striking sudden mental illness as 'a defense on Ihe ground that this defense was iusuf'Ilcieat as a matter of law" ("Abuse of discretion" is properly used only when .the court is ruling on a motion that allows a judge to exercise some degree of latitude in deciding whether or not a motion should be granted. A defense iii either recognized or not, and th us no discrct ion is in vol vcd.) The defense of sudden mental illness was incorrectly barred he :;011H' ot hcr tnUl, such a~ "dixnlluwcd") by the trii.ll court. ("Bar" is it legal term of art used itl describing tbe res judicata effect 0 f a prior j udgrncnt. It would be better III avoid using bar in its ordinary scnsc-vprcvcntcd or Iorbiddeu.) -. (!.lwlIld

ind

of

.)

f ,
and

ayms)
~d

In some situations, such as deeds or contracts, careful legal writers must use legal or technical terms for substantive purposes. To help persons who arc unfamiliar with those terms understand. I'he document. yuu shou ld consi de r tiefining, cJtpl<lininr.., fir illusn at iJI!-\ t hI! terms im mcd iatc! Y after the Ie r ms arc First used Of in all accompunying C{H"Cr IcIIO". ILLUSl'RATION
LO pass

.;;'

1.57 you all easement

(the right

AN
I

The accompanying deed grants over another person's land). The'

"j

maintained
!

pursuing

defendant asserted lhal your claim could DOl because of laches (an unrcasonahle delay or neglect your claim or right) ..
======-~=

be in

AVOiD
~~\liu);_'lfi.
111111<:

USING

CONTRACTIONS

IN F'()RMAL

LEGAl .

WR I 'rt NG.

runs

:gal~sc}.

j~

'0111

so

INTRODUCT10N

TO I.EGA(.. WRITlNG

Cb. 1

tends to I ollnw certain traditional Iormalities, Legal writing in . appellate briefs, memoranda, contracts, and particularly :Onc of those formalities is avoiding the use of legislation. contract ions.

ILLUSTRATION The sentences:

with

1.58 should be
separated

contractions

in

the

following
.......

The protagonist hasn't (should be "has Dot") been charged crime. There Iore, he iSTl'1 (should be "is not") protected by the sixth amendment.

AVOID

LEGAL

USING COLLOQUIAL WRITING.

LANGUAGE

IN FORMAL

Colloquial hmguagc is thut used in Familiar and in formal con vcrsation. This .iype of language and this type of writing style arc considered inappropriate for formal legal writing.

ILLUSTRATION
formal

1.59
sentences should be rephrased using more

The following termiuology:

The opinion
The defendant

went on fa say that . . . . (too colloquial): was hot to trot . . . . (too colloquial)
position uf the court should he

.In f'ormal references to the avoided in legal wriling,.c3

ILLUSTRA
delay The was

TJON 1.60
CO\1rt

(too

believed (argued, fell, etc.) that the reason for the uutenable. (too informal) The court wrestled with the question .... (too informal) The Supreme Court came up with a three- part test . . .. informal) Instead,

it would

be more

appropriate

to stale:

The court decided

reason for The Lbl! delay Supreme was Cuurt

(recognized,
untenable.

held, suggested,
a three- part lest

ctc.) that rue

The court

considered

... . '.
adopted

1l3SC:e, M. Rombauer,

supr~ note 75,

31

30li-01.

n.

1.

Sec. 0

BASIC ELEMENTS

OF LEGAL WRITING

STY(,E

51

I.e o r

litics, lind

In 11.'11,,1' wr itiug , judges and justices shouJd be referred tu in a formal manner. Do not refer to them by their last Dame
:lIone.04.

H"LUSTRATION Chief Justice iwing arg~11 .cctcd

Judge Wilson

1.61 Smith

.',.",=====

.-<======

,~==:=c:=-=,===.'-=
OR CASE
CiTA1'/ON AS

AVOID
THE

USING A CASE
SUBJECT OP

rut:

NAME

SENTENCl!.: .

In formal legal wnung (such as legal memoranda and appellate briefs), using a case name or case citation as the subject of a sentence should be avoided. ILLUSTRATiON .ormal ~ style 1.62

In Eric Railroad Co. '-:" Tompkins, 304 U.S. 64 (1938),tbe Court overruled the ~wifl case. (not "Erie Railroad C~ Tompkins, 304 U.S. (14 (1938) overruled the Swift case.")
==-==='============',;,

more

AVOID A PERSONALIZED WRI1 ING FORMAL LF;(.,A'L WRITlNG.

v

STYI.E

IN

In

formal

legal

writing,

a personalized

writing

style

should

be avoided. 1,I1d be . ILLUSTRATION

writing

1.63 the Iollowing three

illustrations

Consider style:

of a personalized

rmal) illness

IVe assert that the court below erred. I plan to discuss three critical issues.

For purposes
was sudden A better

of this memorandum,
and unexpected. would (too be approach

(too personalized) (too personalized) J am assuming that the

personalized)

to

delete

the

personal

references:
:ial

the

("
have

appellant asserts tbal the court below erred.' Three critical issues will be discussed. For purposes of this memorandum, the illness is assumed The been sudden and unexpected.

to

84SCG

V_,'illf.

supra note 6, at 33 (I{u!e 9).

r-

.:)