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LEGAL WRITING

I. Importance of Legal writing in the practice of law

Legal writing is a type of technical writing used by lawyers, judges, legislators, and
others in law to express legal analysis and legal rights and duties. Legal writing in
practice is used to advocate for or to express the resolution of a client's legal matter.

In many legal settings specialized forms of written communication are required. In many
others, writing is the medium in which a lawyer must express their analysis of an issue
and seek to persuade others on their clients' behalf. Any legal document must be
concise, clear, and conform to the objective standards that have evolved in the legal
profession.

a. There are generally two types of legal writing. The first type requires a balanced
analysis of a legal problem or issue. Examples of the first type are inter-office
memoranda and letters to clients. To be effective in this form of writing, the lawyer must
be sensitive to the needs, level of interest and background of the parties to whom it is
addressed. A memorandum to a partner in the same firm that details definitions of basic
legal concepts would be inefficient and an annoyance. In contrast, their absence from a
letter to a client with no legal background could serve to confuse and complicate a
simple situation.

The second type of legal writing is persuasive. Examples of this type are appellate
briefs and negotiation letters written on a clients behalf. The lawyer must persuade his
or her audience without provoking a hostile response through disrespect or by wasting
the recipient's time with unnecessary information. In presenting documents to a court or
administrative agency he or she must conform to the required document style.

The drafting of legal documents, such as contracts and wills, is yet another type of legal
writing. Guides are available to aid a lawyer in preparing the documents but a unique
application of the "form" to the facts of the situation is often required. Poor drafting can
lead to unnecessary litigation and otherwise injure the interests of a client.

The legal profession has its own unique system of citation. While it serves to provide the
experienced reader with enough information to evaluate and retrieve the cited
authorities, it may, at first, seem daunting to the lay reader. Court rules generally specify
the citation format required of all memoranda or briefs filed with the court. These rules
have not kept up with the changing technology of legal research. Within recent years,
online and disk-based law collections have become primary research tools for many
lawyers and judges. Because of these changes, there has been growing pressure on
those ultimately responsible for citation norms, namely the courts, to establish new rules
that no longer presuppose thata publisher's print volume (created over a year after a
decision is handed down) is the key reference. (See the reports of the Wisconsin
Bar and the AALL.) Several jurisdictions have responded and many more are sure to
follow.

THE IMPORTANCE OF LEGAL WRITING

Do you have the goods to make a good lawyer?

It takes many skills to be a good legal practitioner. Perhaps the most essential of all
required skills is the art of using words. Words are to the lawyer what the scalpel is to
the surgeon. To be a good lawyer, you must be a thorough researcher and a clea
precise writer. Most legal practitioners, especially professional assistants, candidate
attorneys and judicial clerks, spend more time on researching and writing than on any
other professional task. They research and write letters, memoranda, and briefs draft
pleadings, contracts, wills, trusts, and numerous other types of documents. Inadequate
and imprecise research and writing can lead to lost cases, malpractice claims, and
court-imposed sanctions. 1 STUDY UNIT 1 STUDY UNIT 1 INTRODUCTION TO
LEGAL WRITING At the end of this study unit you must be able to: Demonstrate an
understanding of the importance of legal writing within the scope of the Employ source
citations in strict accordance with the instructions as set out by Journal of Juridical
Science. Employ the proper format and style guidelines for assignments and legal
documents. Define and describe plagiarism and misconduct within the academic
sphere. Avoid plagiarism in your academic and legal writing. THE IMPORTANCE OF
LEGAL WRITING Do you have the goods to make a good lawyer? It takes many skills
to be a good legal practitioner. Perhaps the most essential of all required skills is the art
of using words. Words are to the lawyer what the scalpel is to the surgeon. To be a good
lawyer, you must be a thorough researcher and a clea precise writer. Most legal
practitioners, especially professional assistants, candidate attorneys and judicial clerks,
spend more time on researching and writing than on any other professional task. They
research and write letters, memoranda, and briefs draft pleadings, contracts, wills,
trusts, and numerous other types of documents. Inadequate and imprecise research
and writing can lead to lost cases, malpractice imposed sanctions.

B. Legal Analysis and Legal Drafting

The term legal analysis is one that can be applied broadly across the entire legal
spectrum, but it is basis is found in the concrete understanding that the application and
use of law is based almost entirely on interpretation. Laws vary across the spectrum of
criminal, civil, corporate, or political law, and vary within its many categories in
complexity.
A law could be a simple as a sentence or as long as a book. On the other hand, laws
are predicated on finding a consensus on how they are to be interpreted, and
sometimes this calls for arguments to be made that support a particular interpretation,
which is the process of legal argument. When a legal action has been undertaken by a
party, it is based on an interpretation of the law, which has been reached at and
supported by legal analysis.

The tools used to analyze the law, are as numerous as they are complex. Like any form
of discourse, arguments are generally supported by existing arguments as much as
they are by reading of written law. These existing arguments are called precedents, and
they are usually based on decisions made upon existing court cases which involved
interpretation and reinterpretation of the law as a means of establishing a means by
which to render a decision.
In the case of the Supreme Court, their form of judicial review tries to determine whether
an interpretation of a law brought before the Court can be interpreted under the United
States Constitution. In the case of a law being found in violation of the Constitution or in
support of it, the Court renders a decision supporting their finding. That decision then
can be used as one form of precedent, though precedents can be established at all
levels of the court, not only on the highest court, provided that a higher court has not
already invalidated that decision.

Legal analysis does not only happen in terms that involve specific legal action (though it
is these legal actions alone that can establish precedents), but also enters in legalistic
discourse through academic means, which can also be cited to support legal arguments
(though they carry significantly less weight than precedents). Generally, this form of
legal analysis is called predictive analysis, since it is not based on a legal matter with
which it plays a direct part, but are based on presenting hypothetical interpretations.
When the matter of legal analysis is based specifically on an existing matter that
requires the arguing of a legal point, this is called persuasive analysis.

Generally, the practice of law should be scene as the practice of argument, with legal
analysis being seen as the means by which an argument is proposed, constructed, and
supported either to

Legal drafting is a very structured method of writing that can prove intimidating to the
uninitiated. In this Beginners Guide, we will recommend some sources that will help you
excel in the legal drafting process.
Legal Dictionaries

The first step in drafting any legal or law-related document is to fully understand its
context, which includes studying the language used by the courts, attorneys, and/or
legal scholars regarding the issue. For those new to legal drafting, or unfamiliar with an
area of the law, a legal dictionary can be invaluable. Some of the most popular legal
dictionaries are:

Blacks Law Dictionary, edited by Bryan A. Garner (2009)

Merriam-Websters Dictionary of Law (2011)

A Law Dictionary, Adapted to the Constitution and Laws of the United States of
America, and of the Several States of the American Union, by John Bouvier (2000)

Ballentines Law Dictionary, With Pronunciations, by James A. Ballentine (1969)

A New Law Dictionary, by Richard Burn and John Burn (1792)

Form Books

Form books are another excellent way to get started with the legal drafting process.
These books range in both size and scopethey can be a single paperback volume that
contains a few general legal forms or a large multi-volume set with a separate index
volume. The Law Library has several form books that focus on federal law and practice,
such as:

American Jurisprudence Pleading and Practice Forms Annotated: State and


Federal (1956-present)

Federal Local Court Forms (2002-present)

Lanes Goldstein Litigation Forms, by Fred Lane (2011-present)

OConnors Federal Civil Forms, by Michol OConnor, ed. (2003-present)

Wests Federal Forms (1952-present)

Benders Federal Practice Forms, by Louis Frumer and Marvin Waxner (1951-
present)

Manual of Federal Practice Forms, by Richard A. Givens (1999-present)

Nichols Cyclopedia of Federal Procedure Forms, by Clark A. Nichols (1952-


present)

A Complete Manual of Criminal Forms, by F. Lee Bailey and Kenneth J. Fishman


(1993-present)

Federal Procedure Forms (1975-present)

Uniform Commercial Code Pleading and Practice Forms, by Stephen Flanagan


(1975-present)
101 Law Forms for Personal Use, by Ralph Warner and Robin Leonard (2009)

In addition to the federal forms listed above, you can also find state specific forms by
browsing our catalog subject headings. To do this, click here to access our catalog, click
on basic search, highlight subject browse, and then search for a subject heading
using the following syntax as an example: Forms (Law)Kentucky. Click on the subject
heading and you can browse the resources included under that heading. Finally, state-
specific forms, particularly family law forms, are often found on state court websites.
Click on our Guide to Law Online, click on a state, and look under the judiciary
heading for links to state court websites.

Citation Style Manuals

Putting forth the substance of your argument is only part of the process of legal writing.
You also have to use a legal citation style guide to cite authority in support of your
arguments. Two popular legal citation manuals are listed below. Be sure to consult the
applicable courts rules of procedure to see which citation style is preferred by your
court of concern.

The Bluebook: A Uniform System of Citation (2010)

ALWD Citation Manual: A Professional System of Citation, by the Association of


Legal Writing Directors and Darby Dickerson (2010)

Rules of Procedure

Finally, if you are submitting a pleading to a court, be sure to check the Federal or State
Rules of Procedure, as well as the local court rules to ensure you have complied with
their rules governing formatting and legal citation. For more information about state and
local court rules, and to find links to pertinent online legal information, be sure to visit
each states Guide to Law Online page.