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Legal Writing

published May 20, 2013

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During your first year, you take a class called Legal Writing. The sole objective of this class is to make you write like real lawyers as little as possible. Lawyers write as if they were paid by the word, or maybe even as if they were born in a parallel universe. For example, here is the legal translation that has been offered for the simple everyday phrase, "I give you this orange."

Know all men by these presents that I hereby give, grant, bargain, sell, release, convey, transfer, and quitclaim all my right, title, interest, benefit, and use whatever in, of, and concerning this chattel, known as an orange, or citrus orantium, together with all the appurtenances thereto of skin, pulp, pip, rind, seeds, and juice for his own use and behoove, to himself and his heirs in fee simple forever, free from all liens, encumbrances, easements, limitations, restraints, or conditions whatsoever, any and all prior deeds, transfers or other documents whatsoever, now or anywhere made to the contrary notwithstanding, with full power to bite, cut, suck, or otherwise eat the said orange or to give away the same, with or without its skin, pulp, pip, rind, seeds, or juice.

This kind of supernatural incantation is designed to perpetuate the perceived mysticism of the law and its official high priests. However, legal writing teachers tell you that it is preferable to use concise language and simple, everyday words. Benjamin Franklin said, "Never use a long word when a short one will do." Of course, he was a printer, and he had to set the type by hand. Naturally, he preferred "pay" over "remuneration."

Lawyers like to use "lawyerisms," like "aforementioned," "hereinafter," and "mortgagee." However, most people can't understand legalese. When the loan officer asked Archie Bunker if his home was encumbered, he replied, "No, it is stucco and wood." As Charles Beardsley said, "The writer who uses words unknown to his reader might as well bark." So remember the words of the ditty:

When promulgating your esoteric cogitations and articulating your superficial sentimentalities, beware of .platitudinous ponderosity. Let your extemporaneous verbal evaporations and expatiations have lucidity and intelligibility without rodomontade or thespian bombast. Avoid innocuous vacuity, pompous propensity, and vaniloquent vapidity.

Lawyers do strange things to language. For instance, they add "-ize" to all sorts of words. They don't say "use"; they say "utilize." They also say "actualize," "initialize," and "prioritize." If you ask me, it's enough to make you "externalize" your breakfast. They should try harder to "laypersonize" their language.

Lawyers also write "said" a lot. For example, one complaint stated:

"(Beginning at a point on SAID railroad track about a half a mile or more north of a point opposite SAID curve in SAID highway, large quantities of highly volatile coal were unnecessarily thrown into the firebox of SAID locomotive and upon the fire contained therein, thereby preventing proper combustion of SAID coal, resulting in great clouds of dense smoke being emitted from the smokestack of SAID locomotive." . . . [Defendant] knew SAID smoke would "fall upon and cover SAID curve in SAID highway when SAID engine reached a point on SAID railroad tracks opposite SAID curve, unless SAID smoke was checked in the meantime."

The judges, who quoted this language, realizing that they had not yet used up their daily quota, then, added another sentence containing eight more "saids." Said practice is supposedly invoked for precision, but said precision is illusory. Since the author referred to only one locomotive, "said" is unnecessary. If he had referred to two, "said" wouldn't tell you which one. The real problem is that "the" doesn't sound important enough to lawyers, so they instead write said "saids."

Another sin of legal writing is verbosity. This problem has been around for centuries. In 1596 an English chancellor made an example of a wordy 120-page document by ordering that a hole be cut in it, the writer's head be stuffed in the hole, and the writer be led around and exhibited to all those attending court at Westminster Hall.

One example of verbosity is the practice of using pairs of duplicative words, like "cease and desist," "null and void," "free and clear," "suffer and permit," "devise and bequeath," and "idiot and professor." This practice supposedly stems from periods in history when English lawyers had two languages to choose from: first, Celtic and Anglo-Saxon, then English and Latin, and later English and French. Who knows for sure whether this is true and correct? It sure creates a lot of redundancy and duplication.

A few judges have pursued the virtue of conciseness with a passion. For example, a taxpayer in the U.S. Tax Court testified, "As God is my judge I do not owe this tax." Judge Murdock replied, "He's not, I am; you do." Another example is Denny v. Radar Industries. Most of the opinion states, "The appellant has attempted to distinguish the factual situation in this case from that in [a prior case]. He didn't. We couldn't. Affirmed."

Another common booboo in legal writing is the mixed metaphor. This is a figure of speech that begins with one image and then, as slick as Elvis's hair grease, shifts to another. For example, a bar association committee reported that it had "smelled a rat and nipped it in the bud." Donald Nixon complained, "People are using Watergate as a political football to bury my brother." Even Jiminy Cricket told Pinocchio, "You buttered your bread--now sleep in it." Therefore, before using a mixed metaphor wedded to the very fabric of your argument, be sure to run it up the flagpole of microscopic scrutiny. Otherwise, the sacred cows will come home to roost with a vengeance. But I'm skating on hot water, so I'll move on.

Lawyers also use a lot of clichés. They say things like "The case is open and shut. Don't cut off your nose to spite your face." And "To think that you will escape the day of reckoning in the cold light of reason is the height of absurdity barking up the wrong tree." So bite the bullet and avoid old clichés like the plague. As Samuel Goldwyn said, "Let's have some new clichés."

Legal writing also often uses double negatives. The United States Supreme Court has truly refined this art, writing the world's first and only--believe or not--QUADRUPLE negative:

This is not to say, however, that the prima facie case may not be met by evidence supporting a rinding that a lesser degree of segregated schooling in the core city area would not have resulted even if the board had not acted as it did.

Government cryptographers have been trying to decipher this sentence for years. So far, they have been able to tell that it has something to do with schools.

In legal writing you are also introduced to the two computerized systems of legal research, Lexis and Westlaw. These systems permit you to find hundreds of cases merely by pushing a button. This allows you to avoid packing musty case reporters up and down the stairs of the library, which would interrupt your completely sedentary lifestyle. It's much better to exercise those finger muscles and let the rest of your body atrophy into a shapeless blob of protoplasm.

Lexis and Westlaw are very convenient, but they do have limitations. For example, suppose you want to find all the cases in which a lawyer called opposing counsel a "ferret face." Type in the query: counsel's "ferret face". The computer will respond: "13,759 cases answer your query. Please narrow your search terms." So then you'll have to limit the search terms to "three-eyed ferret face," "banana-nosed ferret face," etc. As you can see, this can be a lot of frustrating work. That's one reason they call that little blinking thing on your computer screen "the cursor."

The second half of your legal writing class is "moot court," a thrilling little death march in which you prepare a hundred-page document that is called, appropriately enough, a "brief."

The moot court problems are always fascinating hypotheticals addressing such stimulating issues as stagnant-water rights in sixteenth-century France. Although your professor tries to make the problem a balanced one, it turns out that your opponent has the law, the facts, and the policy arguments on his side-whereas all you have on your side is your ability to keep from laughing hysterically at your own arguments by sticking a pin into your palm. Never mind. The judges will tell you that the process is fair anyway, because having a really bad case reveals your mettle as an advocate. Then they will give the prize to your opponent.

Moot court gives you the privilege of getting in a heated argument with another student in front of a panel of judges composed of EXTREMELY experienced second- and third-year students who have never set foot inside a courthouse in their lives. After the argument, the judges give you helpful advice. The first judge says, "Don't wave your hands so much." The second judge says, "Use more hand motions." The third judge says, "All the hand motions were okay except when you punched your opponent in the eye. You should have punched him in the mouth."

The worst part of legal writing is having to learn the rules of legal citation. Literally thousands of sub rules are set forth in a mutant mass of legalisms called the Bluebook. The operating principles of the Bluebook are: (1) Nature abhors a vacuum; and (2) Anything worth doing is worth overdoing. The first Blue-book was a simple booklet that showed how to cite the most commonly used sources. But because the Bluebook has insisted on having a rule for every situation imaginable, it has grown enormously (sort of like the Blob, but with a less appealing personality). So now the Bluebook describes how to cite such often-used sources as Vanity Fair and the Argentine provincial court of labor appeals. The twelfth edition fit in a person's pocket. The current (fifteenth) edition could have its own carrying case. The twentieth edition will undoubtedly arrive on a flatbed truck.

Under the prior Bluebook, when citing books you had to give the initial of the author's first name, but for law review articles you didn't, which I guess was supposed to be some kind of stupid reward for writing books. You were never permitted to give the author's first name for articles, even though there are 4,000 law professors named "Smith." (I have a suspicion that the other law professors who share my surname have been really ticked off at me because of this rule.) However, the newest edition of the Bluebook finally consented to giving the author's full name.

The Bluebook also contains the official "introductory signals," which lawyers use to introduce citations. The introductory signals have been attacked as an ultra vires imposition of a full-blown theory of stare decisis. . . . Use no signal when you've got the guts. Use e.g. when there are other examples you are too lazy to find or are skeptical of unearthing. Use accord when one court has cribbed from the other's opinion. Use see when the case is on all three's. Use cf. when you've wasted your time reading the case. Insert but in front of these last two when a frown instead of a smile is indicated.

However, the Bluebook still leaves out some very useful signals, such as read and weep and tries to distinguish this one. For contrary authority, it omits disregard, ignore also, and for a really bizarre view, see.

The Bluebook has rules for everything. It permits legal writing teachers to penalize students for failing to grasp the subtle distinction between a period followed by an ellipsis and an ellipsis followed by a period. It has no fewer than 140 pages of mandatory abbreviations, which means that the space saved by abbreviations is purchased with the time wasted in looking them up. It dictates when numbers must be written as numerals and when they must be spelled out. Inexplicably, the rule is different for footnotes than it is for text, and the general rules are subject to six (6?) exceptions. The Bluebook is thick with thin things.
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