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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