Legal Writing Styles that Lawyers Must Master

To write effectively, you must communicate effectively.  Remember the discussion between the March Hare, the Mad Hatter, and Alice:

"Take some more tea," the March Hare said to Alice, very earnestly.

"I've had nothing yet," Alice replied in an offended tone: "so I can't take more."

**You mean you can't take less," said the Hatter: "It's very easy to take more than nothing."

"You should say what you mean," the March Hare went on."

"I do," Alice hastily replied, "at least I mean what I say-that's the same thing, you know." "Not the same thing a bit!" said the Hatter. "Why, you might just as well say that 'I see what I eat' is the same as I eat what I see.'"

Communication skills are even more vital for lawyers than for people like Alice, for language is the primary tool of the legal profession, and lawyers are held to a higher standard of its use than other people.

But most entering law students tend to minimize the importance of legal writing. For one thing, they have been writing all of their academic lives and they tend to feel competent in that skill, while they view the courses that teach "the law" with appropriate awe, for these courses are new and strange.

However, the sense of competence in writing that most students feel may be unwarranted, for many students have majored as undergraduates in disciplines requiring little writing-disciplines like engineering and accounting. Other students have written substantial amounts of expository writing, but writing of a kind different from what they will be doing in law school. Until now they have been rewarded with A's for imaginative, emotional, discursive writing; now they will need to write logically, persuasively, factually, concisely.

To make the transition to effective legal writing even more difficult, law students are often assigned casebook reading containing court opinions that are badly written. Some of the opinions are old, written in a style and language no longer appropriate. Even some of the more recent opinions they read are not models of effective writing. They may contain verbiage, jargon, Latinisms, and other characteristics for which the legal profession is often justly criticized. The opinions assigned for reading are selected not for their linguistic excellence but for their legal significance, and new law students tend to mimic the bad writing rather than the good.

As law students you will learn that in legal writing, unlike much other writing, your personalities should remain in the background. Creativity and discursiveness, which perhaps earned you kudos as undergraduates, should give way to clarity and logical analysis, "Style" should not be visible; matter should dominate manner.

The material in this article should help you move your readers to action; the three sections will help you write clearly, effectively, and with propriety.

These divisions sometimes overlap, but together they constitute the ABC's of good legal writing: accuracy, brevity, and clarity.

A. Use Periodic Sentences Cautiously; Vary Your Sentence Structure.

A periodic sentence in English is structurally somewhat similar to a typical German sentence, which, as Mark Twain facetiously remarked, "goes on for several pages before it comes up at the end with the verb in its mouth."

Not all periodic sentences are bad. They are effective as long as they are not misused. Periodic sentences provide structural variety to your writing, and, strategically used, they induce your reader to continue reading in order to reach the important idea you have cleverly placed at the end. But long, involved periodic sentences on dull topics confuse more than they enlighten.

Periodic sentences are one of the three types of sentence structure found in English, stylistically speaking. The other two types are loose and balanced. You probably learned about these three types of sentence structure when you were in junior high school, but you may welcome a quick review.

As important as your ideas themselves are the words you use to connect and relate them. If your readers do not understand your point, you might as well have omitted it. Some connectors are conjunctions (like but, for, and, or . . .); others are adverbs (like hence, therefore, however, since, although . . .); sometimes numbers are connectors, sometimes a word repeated and preceded by *the' or *this/ Sometimes connectors are not words at all, but punctuation marks.

Although you will seldom need to consult a list to select transition language, here are some of the words most commonly used to express the following relationships:

·         Temporal relationships: then, meanwhile, next, before, later, in a few days, until, then, when, after, following . . .

·         Spatial relationships: above, below, nearby, beyond, opposite, adjacent to, adjoining, far from . . .

·         Addition: furthermore, moreover, besides, also, again, in addition to, further . . .

·         Causal relationships: because, since, consequently, so that, in order to, for that reason . . .

·         Logical relationships: nevertheless, however, therefore, hence, thus, despite, but . . .

·         Comparison and contrast: similarly, likewise, in a like manner, yet, but, on the contrary, notwithstanding . . .

Another way to provide transition is to repeat a word or phrase used in the previous sentence or paragraph.

2.  Commas as connectors

The omission of the final comma in a series is now common. But it is better to include that comma in legal writing because its absence may cause problems. For example, in the sentence, "All of my assets are to be divided equally among my children:              Mary, Joan, Edward and Mark," how many divisions did the testator intend? Should the assets be divided three ways, with Edward and Mark sharing a third? If the testator had added a final comma before and, there would have been no ambiguity.

They merely deny, so they are less forceful than affirmative statements.

Rule-of-Thumb: In your own writing, delete as many negatives as you can from each sentence you have written, when you have used more than one negative.

Everyone knows the lay meaning of expletive. (You learned when you were five years old that expletives were words not to use, at least in your mother's presence). Although grammatical expletives are quite different, you are still advised to use them sparingly in legal writing. Grammatical expletives are words that are necessary to fill a slot that English syntax requires be filled.

Modifiers belong next to the words they modify. If you fail to follow this rule, you may suffer serious consequences.    

Grammarian H.M. Fowler gave the name elegant variation to the use of different names for the same referent. For example, if in your discussion of a house, you referred to it also as a dwelling, a residence, and a place of habitation, you were using elegant variation. Students tell me that they intentionally employ different names for the same thing because sometime in the past an English teacher told them that the practice avoided monotony.

The avoidance of monotony may be of prime importance in much writing, but not in legal writing, where clarity is of prime importance, and the reader may well assume that different names refer to different things.

At least as confusing as the habits described above is that of adjective buildup, the placing of numerous adjectives in front of a noun. This unfortunate habit is evident in some legal casebooks, and even in court opinions, and too many law students eagerly adopt it.

Whatever you write, you make an unstated promise to your readers not to shift your point of view unless you let them know about it. If you change the subject or object of your sentence without notifying your readers, you are shifting your viewpoint, and that constitutes bad (and confusing) writing.

I. Writing It Effectively

A. Use Sentence Structure for Emphasis.

For your legal writing to be effective, you must not only make your ideas clear but persuade your reader to your viewpoint. You can help accomplish both aims by variety in sentence structure and appropriate placement of the sentence parts.

Legal writing doesn't have to be murky, though too often it is. Murky writing becomes clear when you itemize your points, making lists in parallel form.

"Copious Dryden wanted, or forgot/The last and greatest art, the art to blot." (Alexander Pope, "Epilogue to the Satires") On the other hand, it was said of Milton's writing, "Fewer words would not have served; more would have been superfluous." As legal writers, imitate Milton, not Dryden.           But this advice is hard to take. Benjamin Freinklin said that lawyers "say little in much," and that criticism too often applies today. Wordiness is to the writer what obesity is to the jogger. You can avoid wordiness if you (1) don't pontificate; (2) do use concrete language; and (3) do use active verbs.

A comic strip shows a little boy holding up a cookie box so that his sister can see it and saying that if she can guess what kind of cookie is in the box, he will give it to her. Delighted, she correctly guesses, "chocolate chip," and he says, "Right!" and gives her the empty box, thus illustrating the intentional use of the vague referent "it." But, in legal writing, the unintentional use of vague referents can cause trouble-and litigation.

You wouldn't compare apples and oranges, so avoid comparing incomparable things in your legal writing.            

The mismatch of nouns and verbs, like other misalliances, can cause problems.

Metaphors, skillfully used, will illuminate your writing and may make it memorable. But stale, mixed, or mangled metaphors will damage your writing. Your legal opponent may have thrown out the baby with the bathwater and sent a fox to guard the chicken coop, but find some other way to say it. Those metaphors are so stale that they have lost their vigor. Worse still is the stale metaphor that is also mixed.