Legal writing involves the analysis of fact patterns
Ordinary words having different meanings in
and presentation of arguments in documents such
as legal memoranda and briefs. One form of legal
writing involves drafting a balanced analysis of a
legal problem or issue. Another form of legal
writing is persuasive, and advocates in favor of a
legal position. Another form legal writing involves
drafting legal instruments, such as contracts and
wills.
Distinguishing features
 Authority.
Legal writing places heavy reliance on authority. In
most legal writing, the writer must back up
assertions and statements with citations of
authority. This is accomplished by a unique and
complicated citation system, unlike that used in
any other genre of writing. The standard methods
for American legal citation are defined by two
competing rule books: the ALWD Citation Manual:
A Professional System of Citation and The
Bluebook: A Uniform System of Citation. Different
methods may be used within the United States and
in other nations.
 Precedent
Legal writing values precedent, as distinct from
authority. Precedent means the way things have
been done before. For example, a lawyer who must
prepare a contract and who has prepared a similar
contract before will often re-use, with limited
changes, the old contract for the new occasion. Or
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. Many lawyers use and re-use written
documents in this way and call these reusable
documents templates or, less commonly, forms.
 Vocabulary
Legal writing extensively uses technical
terminology that can be categorized in four ways:
1. Specialized words and phrases unique to law,
e.g., tort, fee simple, and novation.
2.
law, e.g., action (lawsuit), consideration (support
for a promise), execute (to sign to effect), and party
( a principal in a lawsuit ).
3. Archaic vocabulary: legal writing employs many
old words and phrases that were formerly
quotidian language, but today exist mostly or only
in law, dating from the 16th century; English
examples are herein, hereto, hereby, heretofore,
herewith, whereby, and wherefore (pronominal
adverbs); said and such (as adjectives).
4. Loan words and phrases from other languages:
In English, this includes terms derived from French
(estoppel, laches, and voir dire) and Latin
(certiorari, habeas corpus, prima facie, inter alia,
mens rea, sub judice) and are not italicised as
English legal language, as would be foreign words
in mainstream English writing.
 Formality
These features tend to make legal writing formal.
This formality can take the form of long sentences,
complex constructions, archaic and hyper-formal
vocabulary, and a focus on content to the exclusion
of
reader needs. Some of this formality in legal
writing is necessary and desirable, given the
importance of some legal documents and the
seriousness of the circumstances in which some
legal documents are used. Yet not all formality in
legal writing is justified. To the extent that
formality produces opacity and imprecision, it is
undesirable. To the extent that formality hinders
reader comprehension, it is less desirable. In
particular, when legal content must be conveyed to
nonlawyers, formality should give way to clear
communication.
What is crucial in setting the level of formality in
any legal document is assessing the needs and
expectations of the audience. For example, an
appellate brief to the highest court in a jurisdiction
calls for a formal style—this shows proper respect
for the court and for the legal matter at issue. An
interoffice legal memorandum to a supervisor can analysis. In the United States, in most law schools
probably be less formal—though not colloquial— students must learn legal writing; the courses focus
because it is an in-house decision-making tool, not on: (1) predictive analysis,
a court document. And an email message to a
i.e., an outcome-predicting memorandum (positive
friend and client, updating the status of a legal
or negative) of a given action for the attorney's
matter, is appropriately informal.
client; and (2) persuasive analysis, e.g., motions
Transaction documents—legal drafting— fall on a and briefs.
similar continuum. A 150-page merger agreement
Although not as widely taught in law schools, legal
between two large corporations, in which both
drafting courses exist; other types of legal writing
sides are represented by counsel, will be highly
concentrate upon writing appeals or on
formal—and should also be accurate, precise, and
interdisciplinary aspects of persuasion.
airtight (features not always compatible with high
formality). A commercial lease for a small company Predictive legal analysis
using a small office space will likely be much
The legal memorandum is the most common type
shorter and will require less complexity, but may
of predictive legal analysis; it may include the client
still be somewhat formal. But a proxy statement
letter or legal opinion. The legal memorandum
allowing the members of a neighborhood
predicts the outcome of a legal question by
association to designate their voting preferences
analyzing the authorities governing the question
for the next board meeting ought to be as plain as
and the relevant facts that gave rise to the legal
can be. If informality aids that goal, it is justified.
question. It explains and applies the authorities in
Many U.S. law schools teach legal writing in a way predicting an outcome, and ends with advice and
that acknowledges the technical complexity recommendations. The legal memorandum also
inherent in law and the justified formality that serves as record of the research done for a given
complexity often requires, but with an emphasis on legal question. Traditionally, and to meet the legal
clarity, simplicity, and directness. Yet many reader's expectations, it is formally organized and
practicing lawyers, busy as they are with deadlines written.
and heavy workloads, often resort to a template-
The persuasive document, a motion or a brief,
based, outdated, hyperformal writing style in both
attempts to persuade a deciding authority to
analytical and transactional documents. This is
favorably decide the dispute for the author's client.
understandable, but it sometimes unfortunately
Motions and briefs are usually submitted to judges,
perpetuates an unnecessarily formal legal writing
but also to mediators, arbitrators, and others. In
style.
addition a persuasive letter may attempt to
Recently a variety of tools have been produced to persuade the dispute's opposing party.
allow writers to automate core parts of legal
Persuasive writing is the most rhetorically stylized.
writing. For example, automated tools may be used
So although a brief states the legal issues, describes
by transactional lawyers to check certain
authorities, and applies authorities to the question
formalities while writing, and tools exist to help
—as does a memorandum—the brief's application
litigators verify citations and quotations to legal
portion is framed as an argument. The author
authority for motions and briefs.
argues for one approach to resolving the legal
Categories matter and does not present a neutral analysis.
Legal writing is of two, broad categories: (i) legal Legal drafting
analysis and (ii) legal drafting. Legal analysis is two-
fold: (1) predictive analysis, and (2) persuasive
Legal drafting creates binding legal text. It includes of the goals of the movement is to reduce reliance
enacted law like statutes, rule and regulations; on terms of art, words that have a specific meaning
contracts (private and public); personal legal within the context of the law, but that may carry a
documents like wills and trusts; and public legal different meaning in other contexts.
documents like notices and instructions. Legal
Legalese
drafting requires no legal authority citation and
generally is written without a stylized voice. This section possibly contains original research.
Plagiarism Legalese is an English term first used in 1914 for
legal writing that is very difficult for laymen to read
In writing an objective analysis or a persuasive
and understand, the implication being that this
document, including a memorandum or brief,
abstruseness is deliberate for excluding the legally
lawyers write under the same plagiarism rules
untrained and to justify high fees. Legalese, as a
applicable to most other writers,[6] with additional
term, has been adopted in other languages.
ethical implications for presenting copied materials
Legalese is characterized by long sentences, many
as original. Legal memoranda and briefs must
modifying clauses, complex vocabulary, high
properly attribute quotations and source
abstraction, and insensitivity to the layman's need
authorities; yet, within a law office, a lawyer might
to understand the document's gist. Legalese arises
borrow from other lawyers' texts without
most commonly in legal drafting, yet appears in
attribution, in using a well-phrased, successful
both types of legal analysis.
argument made in a previous brief.
Some important points in the debate of "legalese"
Plagiarism is strictly prohibited in academic work,
v. "plain language" as the continued standard for
especially in law review articles, seminar papers,
legal writing include:
and similar writings intended to reflect the author's
original thoughts. Public comprehensibility: Perhaps most obviously,
legalese suffers from being less comprehensible to
The drafting of legal documents such as contracts is
the general public than plain English, which can be
different as, unlike in most other legal writing
particularly important in both private (e.g.,
categories, it is common to use language and
contracts) and public matters (e.g., laws, especially
clauses that are derived from form books, legal
in democracies where the populace is seen as both
opinions and other documents without attribution.
responsible for and subject to the laws).
Lawyers use forms documents when drafting
documents such as contracts, wills, and judgments. Resistance to ambiguity: Legalese may be
The key difference between using phrases or particularly resistant to misinterpretation, be it
paragraphs from other legal documents, and incidental or deliberate, for two reasons:
copying in other contexts or copying the entire
1. Its long history of use provides a similarly
document, arises from the fact that lawyers are
extensive background of precedent tied to the
effectively drawing upon a common pool of clauses
language. This precedent, as discussed above, will
that they adjust and modify for their own
be a strong determinant of how documents written
purposes.
in legalese will be interpreted.
Plain language movement
2. The legalese language itself may be more precise
The Plain Language Movement in legal writing when compared to plain English, having arisen
involves an effort to avoid complex language and from a need for such precision, among other
terminology in legal documents, to make legal things.
writing more understandable and accessible. One
Joseph Kimble, a modern plain-English expert and
advocate, rejects the claim that legalese is less
ambiguous in The Great Myth that Plain Language
is not Precise. Kimble says legalese often contains
so many convoluted constructions and
circumlocutions that it is more ambiguous than
plain English.
Coverage of contingencies: Legal writing faces a
trade off in attempting to cover all possible
contingencies while remaining reasonably brief.
Legalese is characterized by a shift in priority
towards the former of these concerns. For
example, legalese commonly uses doublets and
triplets of words (e.g., "null and void" and "dispute,
controversy, or claim") which may appear
redundant or unnecessary to laymen, but to a
lawyer might reflect an important reference to
distinct legal concepts.
Plain-English advocates suggest that no document
can possibly cover every contingency, and that
lawyers should not attempt to encompass every
contingency they can foresee. Rather, lawyers
should only draft for the known, possible,
reasonably expected contingencies.