A Few BASICS OF GOOD LEGAL WRITING
by Joelle Steele
Good writing is critical to the legal profession. It is a primary form of communication. But, the basics of writing contracts and other legal documents often appear to be forgotten when you read the unintelligible stuff produced by some law offices. As I write this, I have a 3-page declaration sitting on my desk that was drafted on my behalf by an attorney who fully expects me to sign it. Ain't gonna happen. I'm not putting my signature to a piece of paper that is largely incoherent and does not even accurately convey my expert opinion. I will rewrite it until it does.
You can be a better legal writer and do a top-notch job for your client by adhering to a few writing basics:
ADHERE TO STYLES
Whatever you write should always adhere to whatever stylistic conventions are required by the court in the jurisdiction where the work is produced. These styles may vary, but usually they include a format for the margins, paragraph indentations, font size, filing information block, use of blue backs, etc. Get the court's guidelines in advance, because many will reject a document that does not conform exactly to their specifications.
Any legal document must be able to fulfill its purpose by being well-organized, clear, and concise. The writing itself should consist of ordinary, everyday English. Avoid outdated and archaic legalese — no "wherefore," "party of the first part," "heretofore," etc. At the same time, don't use any slang, and don't use technical jargon without defining it in the text itself.
BAD: Mr. Ayres assured Mr. Buckley and Mr. Shell that his inventory management module could be leveraged across multiple channels.
GOOD: Mr. Ayres assured Mr. Buckley and Mr. Shell that his "inventory management module could be leveraged across multiple channels," i.e., that his system could track their inventory online and in their retail stores.
GOOD: Mr. Ayres assured Mr. Buckley and Mr. Shell that his system could track their inventory online and in their retail stores.
Make sure each paragraph has a topic sentence. Be brief and to the point. Write in short sentences. Use less words rather than more. Check your grammar and spelling. Write in active rather than passive voice.
ACTIVE: The FDA determined that the drug was not safe for use by children under the age of 6.
PASSIVE: The drug was determined by the FDA to be unsafe for use by children under the age of 6.
Avoid sexist language. Unless the court states otherwise, it is a usually best to refer to people by their names rather than their status as a defendant, petitioner, etc. Clarify any language that can be subject to multiple interpretations:
BAD: The driver got out of the car and handed it to him, and he appeared confused, and he put it on the trunk lid.
GOOD: Mr. Wiley got out of the car and handed it to Mr. Jefferson. Mr. Jefferson appeared confused, so Mr. Wiley put it on the trunk lid.
GOOD: Mr. Wiley got out of the car and handed it to Mr. Jefferson. Mr. Wiley appeared confused, so Mr. Jefferson put it on the trunk lid.
WRITE WITH PURPOSE
Good legal writing enables an attorney to write with a purpose, to thoroughly and successfully analyze, inform, argue, and/or persuade. The writing should always be flexible enough in its details to match the needs of whoever reads it, whether it is another attorney or a client. To this end, all documents must be written specifically for the people who will be reading them.
The purpose of the writing must be determined before putting pen to paper, or fingers to keyboard. Some legal docs are analytical and objective. They pick apart and describe a situation start to finish in an unbiased way that provides a balanced discussion of the case. Persuasive writing, on the other hand, is anything but unbiased. This is where attorneys showcase their advocacy for their client by stating facts or issues in a way that is most favorable to their client.
EDIT AND REVISE
Rewrite, rewrite, rewrite, edit, edit, edit, proof, proof, proof. Any kind of writing requires a lot of changes and revisions to get to the final product. Even a comma out of place can make a difference in meaning and interpretation. It is also important that you verify your citations and that you are using them correctly. Read your work out loud, as that can sometimes help you spot problems. And if you have any doubts at all, have someone else in your office read what you have written, possibly just the parts that you are questioning, to get their feedback.
Lastly, legal writing must be original. Plagiarism is rampant these days. Don't bring it into a legal document by trying to pass off someone else's work as your own. If you need to use language written by someone else, quote them, identify them as the author, and cite the source.
With legal writing, your client's needs are riding on the quality of each document's content. By taking the time to organize your thoughts, doing thorough research, drafting and revising your writing, and verifying any quotes and citations, you will increase the chances of winning your case.