Legal writing
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Legal writing is a type of technical writing used in the field of law by legislators, lawyers, judges, legislative drafters, law-textbook authors, and others in the legal field to express legal analysis and legal rights and duties. Its distinguishing traits include method of citation to authority, citation of precedent, and a set of specialized vocabulary in reference to procedures, precedents, and derived legal and ethical principles.
Distinguishing features
Legal writing places heavy reliance on authority. In most legal writing, the writer must back up assertions and statements with citations to authority. This is accomplished by a unique and complicated citation system, unlike those used in any other genre of writing. There exist two guide books that define the standard methods for legal citations: the ALWD Citation Manual and The Bluebook.
Legal writing values precedent, which is distinct from authority. Precedent means the way things have been done before. A lawyer who must prepare a contract and who has prepared a contract for a similar circumstance that met the previous client's needs well will often re-use the text of the old contract for the new occasion; a lawyer who has filed a successful motion to dismiss a lawsuit may use the same or a very similar form of motion again in another case, and so on.
Legal writing makes extensive use of technical terminology. This distinctive vocabulary can be classified into into four categories:
- Specialized words and phrases unique or nearly unique to law, such as tort, fee simple, and novation.
- Everyday English words that when used in law have different meanings from the everyday usage, such as action (a lawsuit, not movement), consideration (support for a promise, not kindness), execute (to sign, not to kill), and party (a principal in a lawsuit, not a social gathering).
- Archaic vocabulary: legal writing employs a fairly large number of outdated words and phrases that were formerly part of everyday English but are today rare except in law. Some date from the 1500s. Most are long-abandoned outside the law. For example: herein, hereto, and hereby; said and such (as adjectives); and wherefore.
- Loan words and phrases from other languages: in this category are terms derived from French (such as estoppel, laches, and voir dire) and Latin (both terms of art such as certiorari, habeas corpus, and prima facie; and non-terms of art such as inter alia, mens rea, and sub judice). Such foreign words are not written in italics or other distinctive type as is customary when foreign words appear in other English writing.
Categories of legal writing
Legal writing can be divided into two broad categories: legal analysis and legal drafting.Within legal analysis, there are two types of texts: those intended to be informative and those intended to be persuasive. An informative document, such as a memorandum of law, client letter, or legal opinion, provides a balanced and objective discussion of a legal question and the authorities that govern the question. It explains and applies the authorities in an attempt to predict an outcome, and it usually offers advice or recommendations. It is organized and written in a fairly formal way and also serves as a record of the research undertaken on a given legal question.
Legal analysis
For example, if a client in the United States were to ask their lawyer whether it is legally permissible to have sexual intercourse with a person they are not married to, and if not, what penalty would apply, the lawyer would most likely explain that the rule would depend on the ages of the persons involved and whether money is changing hands. If money changes hands (one is paying the other) this is considered prostitution and is only legal in certain parts (and not all) of the State of Nevada. For non-commercial sex, such as between a boyfriend and girlfriend, or two gay males or two lesbian women, the lawyer might explain that, for the entire United States, where both persons are over the age of consent, the U.S. Supreme Court has decided that there is usually no restriction on what two people of the same sex do in private as long as it does not involve payment, due to the decision in Lawrence v. Texas, in which laws prohibiting private non-commercial consentual sexual activity were found to be unconstitutional. The lawyer would need to know the ages involved if either party were under the age of consent which, while it varies from state to state, is never higher than 18. Where the age of consent is lower than 18 it is usually 15, 16, or 17. In some states, there is a minimum age which makes it legally impossible for a person to consent (this is usually 12 - 14) and any sexual activity with them could be punished the same as rape or child molestation, and would be classified as a felony, a serious crime. Where both persons are older than the absolute prohibition age, but either or both are younger than the age of consent, the rule depends on how old the other person is. In some states, if the two persons involved are within 3 or 4 years of age of each other, (for example, one being 19 and the other being 17) such actions may either be permissible or only punishable as a misdemeanor (a less serious class of crime), depending on the jurisdiction.This example is also more complicated as there are conditions on incest (if the parties are too closely related to each other), whether there is a employer-employee relationship, if one has control over the other (such as with a prisoner and an employee of a jail, or between a teacher and a student), or if there is a professional relationship (such as a doctor and a patient, or if one of the people involved is a lawyer themselves and is considering having sex with a client).
In other countries the response that a lawyer or barrister might have to provide might be that any sex outside of marriage is legally prohibited, with the penalty for being caught extremely severe such as death, or that even though the government might not prohibit it or the penalty is less, public opinion might allow someone else to murder either or both of them and not be punished. In some countries the religion, race, or social standing of those involved may determine whether such activities are legal or illegal.
Legal drafting
A persuasive document, such as a motion or brief, attempts to persuade a decision-maker to decide a dispute in favor of the author's client. Motions and briefs are usually submitted to judges, but may also be submitted to mediators, arbitrators, and others who resolve disputes. A persuasive letter may also be used to persuade the opposing party in a dispute. Of the types of legal writing, persuasive writing is the most conducive to personal style and flair.Legal drafting is the category of legal writing concerned with creating binding legal text. It includes enacted law, such as statutes, rules, and regulations; private and public contracts and agreements; notices and legal information; and documents related to personal legal matters, such as wills and trusts. Legal drafting does not require the citation of legal authority and is generally written without personal flair or voice.
In the United States, most law schools require students to take courses in legal writing. Most courses focus on both informative writing--the legal memorandum, which is considered a building block of all legal training--and persuasive writing, including motions and briefs. Although not as widely taught in law schools, legal drafting courses do exist and are expanding.
Plagiarism
In preparing an informative document or a persuasive document, lawyers generally operate under the same plagiarism rules that apply to most writers. Legal memorandums and briefs should not quote, use, or rely on authorities without giving proper attribution. But within a single law office, a lawyer might borrow from other lawyers' texts without giving attribution or use a well-phrased and successful argument made in a previous brief.Legal drafting is different. Unlike most other areas of writing, plagiarism is not frowned upon in preparing drafted legal documents due to the high value that legal writers place on precedent. Lawyers commonly make extensive use of forms (stock texts) for creating drafted documents such as contracts and wills. Many forms are commercially created and sold. Borrowing from previous drafted documents is also a common practice. A good lawyer may frequently copy verbatim well written clauses from a contract, will, or statute.
Plagiarism is prohibited in academic work, and particularly in law review articles, seminar papers, and similar pieces intended to reflect the author's original thoughts.
The problem of legalese
Legalese is a term, usually used pejoratively, for legal writing that is difficult for lay people to understand. Legal writing tends to have very long sentences with many carefully phrased clauses, and the features of legal writing that make it resistant to misinterpretation when read by legal professionals also often make documents difficult to read or even deceptive for those without legal training.
The issue stems from the motivation inherent in legal writing to be unambiguous and comprehensive. Unlike prose or other forms of writing aimed at the general population, legal writing is aimed at a highly specialized group that uses a specialized vocabulary, containing both unusual terms and common terms imbued with technical meanings. The desire of the author to cover all contingencies overrules brevity, a problem compounded by the tendency of legal writers to re-use tested stock verbiage in deference to precedent rather than writing new documents from scratch. This often leads to legal documents being lengthy. For these reasons, legal writing has often been criticized as an obtuse exercise that encourages the perception that lawyers speak in rhetoric that is without substance.
For example, in the United States, a statute is sometimes written in a way that is not permissible under the terms of the constitution of a state or of the United States. A statute that is written this way is considered unconstitutional and is void, and has no legal effect. It would be simple enough to say, as part of a statute,
- If a part of this statute is unconstitutional, whatever isn't should operate as if the invalid language was not present.
- If any phrase, clause, sentence, section, subsection or provision of this statute is found to be unconstitutional, unenforceable, or invalid with respect to any condition or circumstances, then every other phrase, clause, sentence, section, subsection or provision of this statute which can be made applicable to such condition or circumstances without the offending phrase, clause, sentence, section, subsection or provision shall be held applicable to such condition or circumstances as if the offending phrase, clause, sentence, section, subsection or provision of this statute were not present, and to such ends all of the phrases, clauses, sentences, sections, subsections or provisions of this statute are declared to be severable.
- "Because of the fact that" (because)
- "Circumstances in which" (when and where)
- "Concerning the matter of" (about)
- "Elucidate" (explain)
- "Owing to the fact that" (because)
- "In the event that" (if)
See also
External link
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