lOMoARcPSD|19668761

Legal-Writing-notes - Legal Writing Notes

College of Legal Education (University of Mindanao)

Scan to open on Studocu

Studocu is not sponsored or endorsed by any college or university

Downloaded by Moonlight Sakura (moonlightsakura23@gmail.com)
 lOMoARcPSD|19668761

Legal Writing support his thesis. These may be pieces of evidence offered in
court, sections of the law, decisions of the SC, opinions of
 Knowledge of law legal authorities on a subject. Examples: academic legal
 Apply laws in exams writing, motions, pleadings and argument section of the brief.
 Articulate the laws 3. FUNCTIONAL WRITING - is designed a specific use or result in
law. These are deeds, wills, contracts or drafts of law and
A lawyer must know the technical type of writing and ordinances which legally bind involved. It is enough to be
presentation of writing. accurate and complete yet understandable. TWO BROAD
CATEGORIES OF LEGAL WRITING 1. LEGAL ANALYSIS 1.
Example: PREDICTIVE ANALYSISA. ANALYSIS - the facts and laws, The
facts then applied the law, and they are interpreted according
 Pleadings to the meaning of the law. B. PREDICTION the outcome of
 Complaints the legal question, whether positive or negative, is predicted.
 Position papers C. RECOMMENDATION – based on the facts and law, gives
 Affidavits his advise or recommendation as to what is the best line of
 Contracts action under the circumstances. 2. PERSUASIVE ANALYSIS- a
 Answers persuasive documents attempts to persuade a judge, arbiter
or any other deciding authority to decide the case in favour of
Characteristics of Legal Writing
the writer’s client. Examples. Pleadings, motions and briefs.
 Rely on forms or templates
LEGAL DRAFTING - this is functional type of legal writing, Here, the
 Arguments are backed up with authority, decided cases by the
writer creates a legal binding document, or uses at already available
Supreme Court and ruling is applicable
templates found in Legal Forms handbooks. Examples are: contracts,
 Rely on legal scholars
deeds, will and testaments for private persons, and laws, regulations
 Emphasized technical terminologies
and ordinances which bind the public in general. DEFINITION OF
 Words or terminologies assume different reasoning
TERMS: MEMORANDUM- literally “ to be remembered” is a paper that
 Use of old English terms (therefore, wherefore)
explains and summarizes specific points of law for a judge, for another
 Words are borrowed from other language
attorney or for a client.
French – estoppel, laches
PLEADING - the formal presentation of claims and defenses by parties
to a lawsuit. The specific papers by which the allegations of parties to a
Latin – certiorari, habeas corpus, prima facie, interalia
lawsuit are presented in a proper form; specifically; the complaint of a
Legal drafting – making of affidavits before, during proceedings plaintiff and the answer of a defendant plus any additional responses
to those papers that are authorized by law.
Legal analysis – can be predictive or persuasive to things that may
happen in the litigation, the costs or time needed and everything must MOTION - a written or oral application made to a court or judge to
be in the form of a letter. obtain a ruling or order directing that some act be done in favour of the
applicant. The applicant is known as the moving party, or the movant.
Predictive analysis Persuasive analysis BRIEF- a written document drawn up by an attorney for a party in a
Assume of facts Mastery with suitor lawsuit or by appearing pro se that concisely states the following:
Solution for possible issues To gain in favor of judge
1. issue of a lawsuit
Laws applicable Persuading skills in court
2. facts that bring the parties to court;
Pros and cons shall be identified Persuade judge usually through 3. relevant laws that can affect the subject of the dispute;
motions or position papers 4. arguments that explain how the law applies to the particular
Possibility of settlement Write arguments in good facts so that the case will be decided in the party’s favor.
presentation
APPELLATE BRIEF - a writing must be filed with an appellate court so
that the court may evaluate whether the decision of the lower court
CHAPTER 1 should be reversed because of some error or impropriety that occurred
during the trial.
Legal writing = is the kind of writing used by lawyers, law professors,
judges and other workers in the field of law to express legal rights, CHAPTER 2-SIMPLICITY
obligations and opinions.
PURPOSE:
Types of Legal writing
1. use short sentences, as a rule
1. INFORMATIVE WRITING - information on an issue involving 2. avoid wordy expression, clichés and tautology
the law or a person’s legal rights. This type of writing does not 3. avoid elaborating on the obvious;
take sides. Its goal is objective communication by predicting 4. get to the point soonest
the law’s ’’path’’ vis-à-vis a set of facts regardless of who is 5. minimize the use connectives and relative pronouns;
involved. Example, memoranda, letters to clients and 6. avoid convoluted word-constructions
statement of facts in brief. 7. replace multisyllabic terms with shorter, more understandable
2. PERSUASIVE WRITING - convinces the reader to accept a words.
certain viewpoint. Here, the writer argues for a particular side
or perspective. He is expected of use available legal tools to

Downloaded by Moonlight Sakura (moonlightsakura23@gmail.com)

 lOMoARcPSD|19668761

ELEMENTS OF LEGAL WRITING
SIMPLICITY- in writing means to write a plainly and simply. To observe
the rules on “ economy of expression ”each sentence must say what the
writer the writer means and means what the writer wants to say.
RULES:
similarities between the case decided by the Supreme court and the
case of the client. B. ARGUMENT OF SAME LEGAL APPLICATION-
analogical reasoning may also be used to show similarities that if the
law applies to one area, it may be understood to apply to other similar
areas. C. ARGUMENT USING COMMON SENSE ANALOGY- analogical
arguments may be used by starting with something that everyone
accepts.

1. Avoid wordy expression - simpler construction is preferred 3. policy-based reasoning - reaches a conclusion by connecting the
than using too many words an idea. facts of the case to the state’s existing policy. 4. narrative reasoning
1. 2. Avoid elaborating on the obvious this means do not the conclusion by telling a story that shows the context, description and
expand or restate the obvious. It bores the reader with perspective that appeals to commonly-held ideas of justice, mercy or
information he already has. fairness.
2. 3. Get to the point omit unnecessary preliminaries
3. 4. Avoid tautology this means doing away with unnecessary Legal Writing Midterm Reviewer
repetition of an idea in different words.
4. Eliminate certain phrases Legal Writing - kind of used by lawyers, law professors, judges and other
5. 6. Minimize the use of connective and relative pronouns workers in the field of law to express legal rights obligations and
opinions Types: 1. Informative writing 2. Persuasive writing 3.
Functional writing

CHAPTER 3- CLARITY Motion – a written of oral application made to a court or judge to

obtain a ruling or order directing that some act be done in favor of the
CLARITY - in writing results when the writer is able to express exactly applicant. The applicant is known as the moving party, or the movant.
what he wants to be reflected on his work.
Elements of Legal Writing: 1. Simplicity 2. Clarity 3. Persuasiveness
PURPOSE:
Avoid tautology - This means doing away with unnecessary repetition
1. use concrete instead of abstract terms of an idea in different words.
2. when abstract terms could not be avoided, to back them up
with illustrative examples, Clarity (Purpose) a) Use concrete instead of abstract terms b) When
3. avoid wide gaps between subject verb and object abstract terms could not be avoided, to back them up with illustrative
4. avoid nested modifiers examples c) Avoid wide gaps between subject verb and object d) Avoid
5. avoid dangler modifiers nested modifiers e) Avoid dangling modifiers f) Avoid ambiguous
6. avoid ambiguous pronoun reference pronoun reference
7. avoid punctionas which cause ambiguity
8. apply the seven rules of clear writing g) Avoid punctuations which cause ambiguity h) Apply the seven rules
of clear writing
RULES IN CLEAR WRITING
Rules in Clear Writing: A) Be clear on your point B) Make sure your
1. Be clear on your point point is communicated at once C) Have a structure. This is where you
2. make sure our point is communicated at once put your data, analysis and argument D) Observe grammatical rules E)
3. have a structure. This is where you put your data, analysis and Be precise F) Be consistent G) Be logical and clear in your argument
arguments
4. Observe grammatical rules Persuasiveness (Purpose) a) Rule-based reasoning b) Analogical (and
5. be precise the counter-analogical reasoning) c) Policy-based reasoning d) Narrative
6. be consistent reasoning
7. be logical and clear in your argument
Fallacy - an error in reasoning.

Fallacy of Ad Hominem - from Latin “argument to the man” - an

CHAPTER 4- PERSUASIVENESS
PERSUASION - is a process where people are guided towards the
adoption of an idea or course of action. REASONING- is the process of
drawing conclusions from facts or evidence. To reach the desired
conclusion, arguments and proofs may be used.
PURPOSE: -4 modes of reasoning
1. rules-based reasoning - the conclusion is reached by analyzing and
applying the law, rule or legal principle.
2. analogical (and the counter analogical reasoning 3 types of
analogical argument: A. ARGUING FROM PRECEDENT-type of analogical
argument happens when the conclusion is reached by showing
argument rejecting a person’s views by attacking or abusing his
personality, character, motives, intentions, qualifications, etc., as
opposed to providing evidence why the views are incorrect.
Legal Writing Midterm Reviewer
Appeal to Pity - also called argumentum ad misericordiam - argues that
some persons conclude or make decisions solely on pity, and not on
evidence. The argument is fallacious in that the basis of one’s decision
is pity and not reason or evidence.
Appeal to Popularity - argues that a claim or idea is true simply because
more people are inclined to accept such claim or idea. The argument is
fallacious in that the basis of one’s conclusion or decision is not

Downloaded by Moonlight Sakura (moonlightsakura23@gmail.com)

 lOMoARcPSD|19668761

evidence but an external factor which is widespread acceptance of a

belief.

Appeal to Tradition - opposite of appeal to novelty - argues that the

idea is necessarily better simply because it is older, more “tested” and
“tried” because it had been used years over. It is fallacious because age
per se does not necessarily qualify an idea to be better. Older is not
necessarily better.

Middle Ground - also called fallacy of moderation or the golden mean

fallacy - it happens when the arguer assumes that the mean (or middle
position) between two extreme positions must be the correct position.
The argument is fallacious because

it does not follow that the mean is always the correct position.

Slippery Slope - argues that once a person allows an event to happen,

another event will inevitably follow. The argument is fallacious in that
there is no objective evidence to suggest that the second evidence will
necessarily follow.

Straw man - presents an opponent’s position in a weak and absurd way

so that it can easily be refuted. The argument is fallacious in that one
deliberately misrepresents or does not include the strong points in the
other’s position thereby giving the impression that the arguer’s points
are strong.

Downloaded by Moonlight Sakura (moonlightsakura23@gmail.com)