Introduction to Legal Writing - CHAPTER 9

Chapter 9

• Practice plain English whenever possible

• Think of your target audience when writing

  • 1. Client: simple language/friendly tone/informative

    2. Other side: intellectual language/combative tone/persuade

    3. Judge: intellectual/deferential tone/persuade

• Your main goal is to have your reader understand what is written

• Don’t communicate too much

• Be specific with word choice

• Communicating information orally rather than written may be better for confidentiality

• Eliminating Mechanical Errors

  • You want to eliminate them because you want the reader to concentrate on your message and not think your writing (and by extension your legal research) is sloppy

  • There are 3 common types:

    • punctuation spelling, run on sentences, sentence fragments, parallel construction, run of the mill essay grammar stuff

    • Citation and quoting errors

    • others like quoting from a headnote or case syllabus, not using plain English, plagiarizing, not citing page number, not quoting exactly, using contractions in formal legal documents, using the word I

  • Use of Apostrophes

    • contractions are typically too informal to be used in legal writing

  • Sentence Fragments

    • can be an omission of a verb

    • Beginning a sentence with “although” or “while” or something like that

    • could be incorrect punctuations

  • Run-On Sentences

    • Split it into two sentences, put a semi colon in, or change wording

  • Parallel Construction

    • the wording of each activity of a sentence must match

    • “The officers stopped the car, were questioning the occupants, and searched the car trunk.” BAD

    • “The officers stopped the car, questioned the occupants, and searched the car trunk.”

  • Antecedents

    • “an antecedent is the noun or noun phrase that a pronoun refers to”

    • the gay fanfiction problem basically

  • Active v Passive voice

    • The officer returned the money to the driver. Active

    • The money was returned to the driver by the office. Passive

    • Active voice is preferred in legal writing.

    • Passive voice is fine when you don’t know or don’t want to identify the performer.

  • To find the direct object in a sentence, ask “what” or “who.”

  • To find the indirect object in a sentence, ask “to whom” or “for whom”

  • Changes in tenses

  • Excess Words

• Be ethical

• Be competent in legal knowledge when writing

• Confidential Information

  • you have to safeguard confidential client information

  • you may have to reveal information for a variety of reasons, like preventing bodily harm, prevent the client from committing a crime, to comply with court order

  • make efforts to not let information be shared inadvertently

• claims must have merit when they are filed

• don’t make false statements or submit false evidence

• be fair to the opposing party and counsel

  • don’t destroy evidence or falsify evidence

  • can’t persuade someone not to testify unless it’s a relative or employee of a client

• impartiality and decorum

  • don’t disrupt a tribunal

  • don’t influence the judge in ways that are illegal

  • don’t communicate w a jury after discharge from the jury

  • inform the court of improper conduct by juror

• don’t needlessly harass or embarras someone

• attorneys must supervise non-attorney assistants and the attorney is responsible for their actions

• attorney must treat the judge with respect and must refrain from making any statement impugning the judge’s integrity

• Types of legal writing

  • To inform (I AM HERE TO TELL YOU DOCUMENTS))

    • a transmittal letter, client letter, letter to a third party, an opinion letter or an office memo

    • 1. Attorneys often have to deliver bad news to a client and inform them of a court’s decision.

    • 2. Attorneys may have to inform a client as to what the law is on an issue.

    • 3. Attorneys may have to inform client’s of deadlines, dates and times.

  • To persuade (I AM RIGHT AND HERE IS WHY DOCUMENTS)

    • client letter or letter to 3rd party

    • be mindful of

    • Pleadings: Formal Statements by the parties to a lawsuit setting forth their claims or defenses.

    • Memorandum of Law: a brief of law, often submitted to a judge in the case. supports and argues clients position in the lawsuit

    • Appellate Brief: written statement submitted to an appellate court to persuade the court of the correctness of one’s position. argues the facts of the case

    • 1. Attorneys may have to persuade their clients into doing something they don’t want to do.

    • 2. Attorneys may have to persuade the other side into giving up.

    • 3. Attorneys may have to persuade a judge into ruling for their client.

  • To record information

    • a deed, a contract, a will, a case brief, a corporate document

    • can be read later

Intro to Legal Writing

• Most attorneys don’t step foot in a courtroom, so they need to be able to communicate their arguments in writing.

• Writing also exists to protect you

Repercussions of Bad Writings

• Can lose case.

• Can lose client.

• Can get in trouble with court.

• Can get reversed on appeal.

• Can lose job.

Ethics in Writing

• In Florida it is illegal to threaten to report someone to the police = blackmail.

• Every argument that an attorney makes must be based on a good faith basis.

• Treatment of the Other Side

  • Cannot knowingly obstruct evidence

  • Get a witness to lie

  • Make frivolous requests

  • Ask another not to talk to the other side

• An attorney cannot make a disparaging comment or opinion about a judge

Powerpoint

• the purpose of all writing is to communicate

• its trendy to write legal documents in plain English, though not universally accepted