Lecture 1 - Fundamentals of Writing and Effective Legal Writing

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Feb 20, 2024

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PLEG136 – Lecture 1 – Fundamentals of Writing and Effective Legal Writing PLEG136 Lesson 1 – Types of Legal Writing Introduction While legal writing does share some of the same characteristics as other types of writing, such as technical writing or creative writing, it is very much its own discipline. Accordingly, it takes practice and patience to become proficient at the skill of legal writing. Prior to tackling a legal writing project, it is important to first understand the purpose of the document. Legal professionals must have a clear understanding of the “why” behind every document that they draft. In general, the purposes of legal documents can be separated into three distinct categories: objective writing (sometimes referred to as predictive writing), persuasive writing, and form writing. Objective/Predictive Writing Legal professionals are often tasked with writing objectively. Typically, when writing objectively, the author attempts to predict a particular outcome. For example, the legal professional might need to predict how they think a court would rule on a particular issue. It is critical to remain neutral and present both the strengths and weaknesses of each legal point. When writing objectively, the legal professional must analyze relevant legal authority and consider the actual merits of any legal theories or arguments. The legal professional must base all predictions on legal authority and sound legal reasoning. The writer must not include any personal opinions or bias. It is important to recognize that objective writing must include both sides of

PLEG136 - Lecture 1 2 legal arguments. This means that some of the information might be averse to the client’s position. Including this information is necessary because a client must truly understand their chances of success in legal matters so that they can make informed decisions. If legal professionals only include the information that benefits the client, then the client will not have a complete understanding of the reality of the situation. This would be a disservice to the client and could result in the client making uninformed legal decisions. Examples of objective legal writing include emails, formal letters, or memorandums. The audience for objective legal writing is typically clients or other legal professionals in a law office (such as a paralegal writing to a supervising attorney). Persuasive Writing The purpose of persuasive writing vastly differs from objective writing. When writing persuasively, the legal professional presents information with the goal of convincing the reader of a client’s position. Like objective writing, the writer must rely on legal authority and sound legal reasoning, but they should present this information in a manner that is more favorable to their client’s position. In persuasive writing, legal professionals should acknowledge counterarguments but minimize their importance. It is important to avoid hostility in persuasive writing. The writer should take care to make their points in a respectful manner without offending their audience. A legal professional who comes on too strong or offensive risks losing credibility with the audience. The tone of persuasive writing must always be reasonable, respectful, and professional. Example of Tone in Persuasive Writing Don’t Say: No one could possibly believe that Mrs. Smith owed a duty of care to Mr. Jones! Instead, Say: The legal authority clearly demonstrates that Mrs. Smith did not owe a duty of care to Mr. Jones. In general, when trying to persuade an audience, a legal professional should focus their argument on affirmative statements as opposed to defensive statements. An affirmative statement is when the writer sets forth their position. In contrast, a defensive statement is when the writer negates the position of another.

PLEG136 - Lecture 1 3 Examples of Defensive and Affirmative Statements Defensive Statement: Mr. Jones wrongly claims that Mrs. Smith owed him a duty of care. Affirmative Statement: The legal authority mandates that Mrs. Smith did not owe a duty of care to Mr. Jones. The first statement is defensive because the writer is negating Mr. Jones’ position. The second statement is affirmative because the writer is setting forth their position. Examples of persuasive documents include court motions, court briefs, and negotiation documents. The audience is typically a judge, but in some contexts, such as during negotiation proceedings, the audience could be the opposing side. Form Writing Form writing differs from both objective and persuasive legal writing. When drafting a form document, it is critical to include specified information. The information included must comply with proper federal, state, or agency requirements. If there is missing information in this type of document, then it might not be valid, and that would be detrimental to the client. Similarly, if the document does not comply with relevant laws, then it will not likely hold up in court. Examples of legal form documents include contracts and wills. Lesson 1 Completed! Thank you! You have completed this lesson. Please scroll down to complete a short, ungraded Knowledge Check activity.

PLEG136 - Lecture 1 4 Check Your Knowledge 1 1. Which is an example of objective writing? a. A memorandum to a client describing their chances of success in winning a case. b. A motion to a judge requesting the dismissal of a case. c. An employment contract. d. A court brief to a judge advocating that the defendant did not owe a duty of care to the plaintiff. 2. Which is an example of persuasive writing? a. A memorandum to a client describing their chances of success in winning a case. b. A motion to a judge requesting the dismissal of a case. c. A will d. An email to a client confirming an appointment date and time. 3. Which is an example of a form document? a. A memorandum to a client describing their chances of success in winning a case. b. A motion to a judge requesting the dismissal of a case. c. A will d. An email to a client confirming an appointment date and time 4. True or False : Legal writing is exactly the same as creative writing. 5. True or False: In persuasive writing, it is typically better to take an affirmative position. Lesson 2 – Clear and Effective Writing Introduction Now that we have addressed the different purposes of legal documents, we will consider why it is critical for legal professionals to write clearly and effectively. Writing is the most common and the most important way that legal professionals communicate with each other, the court, and clients. Writing in a clear manner helps to ensure that everyone has the same understanding of a topic. Clear written communication can help to avoid future confusion and frustration. To that end, it is important to structure sentences and paragraphs in a way that the audience can easily understand. Legal writers should use an active voice and avoid legal jargon. The audience should not have to struggle to understand the concepts that are discussed in legal writings. In fact, the legal writer should leave little room for audience interpretation and should be direct and to the point.

PLEG136 - Lecture 1 5 Paragraph and Sentence Structure In general, legal professionals should draft easy-to-read paragraphs and sentences. A good paragraph includes a topic sentence that describes the main idea of the paragraph. After the topic sentences, there should be one or two supporting sentences that provide details about the topic of the paragraph. The closing sentence should summarize the main idea of the paragraph. Paragraphs should focus on only one topic and should only consist of three or four sentences. If paragraphs are too long, readers might become confused and distracted. This Photo by Unknown Author is licensed under CC BY Similarly, sentences should be simple and straightforward. If a sentence is too complicated, the reader might have difficulty determining the intended meaning of the sentence. In general, legal professionals should try to discuss only one topic in each sentence. Writers should split longer sentences into shorter sentences. Grammar and Punctuation Legal writers must also take care to use proper grammar and punctuation. If a writer uses punctuation incorrectly, then they might inadvertently change the meaning of the sentence. Here are some examples of commonly used punctuation and how to use each correctly.  Quotation marks: A writer must use quotation marks when providing exact wording. Example: The judge said, “The court finds the defendant guilty.”  Apostrophe: An apostrophe can form the possessive case of nouns (indicating ownership). Example: The attorney’s laptop is on the table.  Semicolon: A semicolon can be used to connect two independent clauses that are linked in meaning. Example: The attorney began the

PLEG136 - Lecture 1 6 meeting at exactly 10 o’clock; the paralegal who arrived late missed the meeting.  Comma: Comma placement can alter the meaning of a sentence and determines the structure of the sentence. Example: Let’s eat, Mr. Smith. Word Usage In legal writing, it is important to use active voice as opposed to passive voice. In active voice, the subject of the clause or sentence does the acting. In passive voice, the subject is acted upon. Example of Active and Passive Voice Active: The attorney read the document. Passive: The document was read by the attorney. Image retrieved from: https://www.sfbar.org/blog/legal-writing-tip-choose-the-active-voice/ Using active verbs makes legal writing easier for the reader to comprehend. Passive voice is wordier than active voice and often creates ambiguity. However, there are a few reasons why a writer might choose to use passive voice. Reasons to Use Passive Voice:  To emphasize what was done, as opposed to who did it. (The summons was delivered to the defendant).  When the actor is unknown. (The car was stolen.)  When the writer intends to be vague. (The defendant was punched.) Important: When in doubt, use active voice!

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