Chapter 3. Legal Writing (Notes)

Legal writing
● Content and style

● Style affects content
● Composing without actually seeing what is written
● Abstractions - mass of words falling like a snow covering the details
● Stock phrases and stale metaphors — prefabricated hen house
● Ground your writing — see what you are writing — use specific examples,
begin lega discussion with basic propositions of law, show how legal and
factual points fit into the overall analysis
● Poems should no mean but be. Lawyers mean. Do not flatter yourself that our
prose will bog down generations.
The quest for clarity
1. Explicitness — Conclusion up front

Format, memo
○ Caption
○ Facts
– nonargumentative; focus is style
– Chicken & egg problem: consider the legal ques in writing the factual
statement
○ Issue
○ Conclusion — flags the key issues to be discussed. If-then.
○ Controlling law
– Law is compliacted; start with the basic prepositions
– copy the law verbatim; edit out not needed provisions; use ellipses
– Use of quotation marks to emphasize the point
○ Analysis
2. Hard working transitions

– Transitions — introduce new topic, tie the issue with one previously
discussed, state the legal significance of the legal significance of the issue
–
(RILS: RELATE; INTRODUCE; LEGAL SIGNIFICANCE)
3. Explicit ties bet law & facts — discuss the facts; ask so what
– When discussing the proposition of law, ask “so what” to force yourself to
articulate how and in what ways that law relates to the facts that you are
discussing.
– Ground your analysis — factual or legal. Always ask so what.
The Good Samaritan cared for the son Facts only; why that fact is impt? Key
voluntarily. legal issue not considered
The Good Samaritan cared for the son Why that fact supports the conclusion
voluntarily and thus it may be said that that the action was a gift
his action was a girt.
The Good Samaritan cared for the son Legal significance of conclusion
voluntarily and thus may be said that
his action was gift. If so, then under the
Restatement of Contracts, the father’s
promise to pay for the services would
not be enforceable.
Is there a promise made? Is it made in recog of a benefit previously given? Did the
promise confer the benefit as a gift? Is the promise proportionate to the benefit?
Avoid abstraction, even those that don’t seem to be

– Abstraction fall uponthe facts like soft snow, blurring the outlines & covering
up all the details. Use examples — concrete specific markers.

– The readers should know immediately and without thought whom and what
are you talking about. Interruptions are irksome. But no need to repeat the
entire argument, you can use two or three words.
Indicate the factual context of legal rules

Legal rules have meaning only in context of facts.
– what is the jurisprudence about to show the context of the rule and see if it
–
applies squarely to the case

– In citing cases, briefly indicate the facts so the readers will know if the rules
should apply.
– Abstract statements of law are always suspect.
Appellate briefs, briefly

– Argumentative vs. office memo which is neutral in tone
– In office memo, frame the legal issue by asking a ques. In appellate briefs,
frame the issue in a statement.

– Set out the competing arguments and respond to them. But do not ridicule.
– Oral argument vs. written argument
Oral Written
Stress the major points More inclusive; cover the field
No long quotes Citemore law, long quotes fr controlling
authority
Begin and close with strong points. So- Weakest argument last
so in the middle
● Statement of facts
– Dont state facts matters that are at issue: “it is our contention”
– Hint at the issue thatthe court will be required to decide
– Tell the tale fr the viewpoint of the client
– Technical and substantive defense — e.g., why the law is just (protects
interests)
– Be reader friendly. Always check context. Always ground the factual analysis
in law. Factual discussion ends with words of legal standards.
– Quote primary legal authority. The paraphrasing may be wrong. Once you
quote it, apply immediately. The next sentence of the next para must discuss
how the language of the law applies to the case at hand.
– Citing juris: dont just cite the facts. Tell why the facts make a legal difference.
– Citing factual diff that are not flagged as important — convince the court that
it had impact in the decision even though not signaled by the court.
● Briefs should stand on their own, i.e., even if the judge has not read the
opposing brief.
● Appellate briefs, not appellate show-offs, not appellate citation derbies. Be
brief. Your job is not to impress, but to convice. Hence, every point should
tell.
Tips on editing
The most important editing device is the passage of time. Wait a couple of days to
return to your draft. This is when you will spot areas of confusion, words/
sentences/para that can be cut off.
● Edit needless words. It just means that all words must tell. The less cluttered,
the more forceful.
● Tenses.
– Choose active voice to make the sentences more engaging. Easy way to
delete needless words is to write in active voice.

– Use present tense (even in recounting past events)
● Grunts
– short, powerful, very much to the point.
– vs. verb derivatives (e.g., no longer act vs. make decisions)
– Strong words are almost always shorter.

● Excess verbs — sentence with more than 1 verb is a target.
– Clauses — grp of words with a verb become
– Phrases — grp of words without a verb
● Watch inflated style
● Ready made phrases — sound good, intelligent, but instead we bury our
ideas in pomposity.
● Puffing — overuse of intensifiers, adjectives, adverbs. Instead, tell what facts
lead to such conclusion (the lec was very boring vs. during the lec, I went to
sleep)
● Verbs and nouns tell. Adjectives opine. Use verbs.
● Sentence length
– One main thought each sentence. Average of less than 25 words.
– Very the length of sentences.
– Don’t start with long qualifiers.
● Order
– Put impt points first or last.
– First and last are the most impt positions in sentence, para, and arguments.
Even in trials.
– The lawyer’s sin: beginning with citation.
● Making it more visually inviting
– Frequent use of para varying in length. Not arbitrary paragraphing (X
– Frequent use of para varying in length. Not arbitrary paragraphing (X
occasional para with 1 or 2 sentences) but frequent paragraphing.
Editing checklist

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Legal writing

● Content and style

The quest for clarity

1. Explicitness — Conclusion up front

– Use of quotation marks to emphasize the point

2. Hard working transitions

(RILS: RELATE; INTRODUCE; LEGAL SIGNIFICANCE)

Avoid abstraction, even those that don’t seem to be

up all the details. Use examples — concrete specific markers.

Indicate the factual context of legal rules

applies squarely to the case

Appellate briefs, briefly

frame the issue in a statement.

– Oral argument vs. written argument

delete needless words is to write in active voice.

– vs. verb derivatives (e.g., no longer act vs. make decisions)

– Strong words are almost always shorter.

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