Legal Writing and Analysis in a Nutshell
Authors:
Bahrych, Lynn / Merino, Jeanne / McLellan, Beth
Edition:
5th
Copyright Date:
2017
22 chapters
have results for legal writing
Introduction 5 results
- The Fifth Edition offers legal writers a practical step-by-step method of both analyzing and writing clearly, precisely, and effectively about the law. Although, as we have noted, the means of written communication continually change, the basic elements of effective legal writing have not changed. Whether the legal writer is crafting an email, a letter to a client, or a brief for a trial court, the same fundamental principles apply. Legal writing requires attention to accuracy, attention to the reader’s needs and expectations, and attention to the craft of writing precisely, concisely, and effectively.
- The chapters that follow will guide the legal writer to a reliable set of practices that will insure successful written communication about the law. Chapters One to Ten explain the traditional elements of written composition, from organization of a legal document to individual word choices. The most common forms of legal writing, the research memorandum, client letter, and persuasive brief, are discussed in Chapters Six and Seven. Guidelines for writing emails are included in Chapter Six. Tips for editing and polishing your documents are given in Chapter Ten. You will find sample documents in Appendix A, including a case brief, a research memorandum, and a brief for a trial court. Appendix B provides you with a simple method of analyzing and improving your personal writing style. For readers wishing to improve their understanding of the structure of the English language, diagramming of sentences is also included in Appendix B. A glossary of words commonly misused in legal writing is...
- Legal Writing and Analysis in a Nutshell
- Lawyers are professional writers. Writing is an essential part of a practicing attorney’s daily work. Rather than decreasing the need for writing, the internet and other data transmission innovations have dramatically increased the flow of written communication. New technologies will continue to change how we write, but the law will always require the certainty of the written word.
- Today, lawyers must not only write more often, but also more quickly. This new offers a method of writing efficiently, without losing clarity, precision, and effectiveness. Our step-by-step method is illustrated in the flow chart in Chapter One. This method is designed to clarify each step you take and to help you make deliberate choices. Each step will be explained in one or more chapters.
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Preface 4 results
- Professor Marjorie Rombauer was a celebrated founder of the field of Legal Writing in the law school curriculum. She combined the specialized discipline of legal writing with legal research and analysis to create a new approach to teaching basic legal skills to first-year law students. Her pioneering work and popular legal textbooks have made her an icon in the fields of legal research, analysis, and writing. We have followed in her footsteps, building on her legacy to our profession, by adding legal analysis to this edition of the Nutshell.
- In addition to Lynn Bahrych, the authors of the current edition are Jeanne Merino and Beth McLellan, legal writing instructors at Stanford Law School. Jeanne Merino is Lecturer in Residence and Director of the First-Year Legal Research and Writing Program. Beth McLellan is Lecturer in Residence. Jeanne and Beth are indebted to all former and current colleagues who have taught Legal Research and Writing and Federal Litigation at Stanford. Each of them so generously shared ideas about legal writing that their insights have become our own. Many thanks also to the participants of the 2015 West Coast Rhetoric workshop hosted by UNLV.
- Legal Writing and Analysis in a Nutshell
- reflected the combined efforts of the late Professor of Law Marjorie D. Rombauer, Emerita, and Legal Writing Associate Lynn Bahrych Squires, Ph.D., now Lynn Bahrych, attorney at law. Published in l982, the first edition grew out of their collaborative efforts teaching legal writing and research at the University of Washington School of Law from l978 until l982.
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Appendix B. Individual Writing Analysis and Microgrammar 18 results (showing 5 best matches)
- As discussed in Chapter 8, the average sentence length for legal writing should be 20–25 words per sentence. This is longer than the recommended sentence length for general expository writing because legal writing is inherently more detailed than non-technical forms of writing.
- This Individual Writing Analysis is designed to identify your writing habits based on a 500-word writing sample. For the exercise to work, you must choose a typical sample, not an unusually well- crafted one or an unusually poor one. Ideally, the writing sample will be from the discussion section of a legal memorandum or the analysis section of a brief. To begin, select a 500-word writing sample (roughly two typed pages) that reflects your normal, substantive writing style. Use a worksheet to record your analysis. A sample worksheet is shown below. This method of analyzing an individual writing style was developed to help practicing attorneys improve their writing.
- The goal of this analysis is to identify writing habits. We often write automatically, using the same sentence structures and favorite forms of punctuation. Becoming aware of these habitual choices is the first step to greater control over clarity, precision, and effectiveness in your writing.
- The average sentence length is 25 words per sentence. This is at the long end of the spectrum for readability. Shorter sentences will improve this sample. Equally important are the five sentences longer than 35 words. At about 27%, this number of very long sentences slows the reader. The first sentence contains 57 words. This presents an immediate obstacle to a judge or any other reader. The first sentence in a brief, or any legal writing, should not present an obstacle or readability challenge for the reader. The five very long sentences in the sample can be broken into shorter ones for ease of comprehension. There are two extremely short sentences, both six words or less. These are each used effectively for emphasis. Adding one or two more might be added, but overuse will reduce the rhetorical effect.
- Count the number of verbs that denote action (“transitive” verbs like “run”) and the number of times that forms of “to be” occur. Writing with specific active verbs rather than forms of “to be” will strengthen and clarify your writing. At least two-thirds of your verbs should be active verbs.
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Chapter 3. Large-Scale Organization 19 results (showing 5 best matches)
- Some legal writing teachers don’t use the terms IRAC or CRAC to refer to the expected patterns in legal writing. But we do agree that, more often than not, legal readers expect you to begin an analysis or argument with a conclusion and to explain the law before you analyze or argue how that law applies.
- Legal writers must organize everything we write on several levels. Smaller units of writing serve as building blocks for larger units. Words must be arranged in sentences. Sentences must be arranged within paragraphs. Paragraphs must be arranged in paragraph blocks to present larger units of thought. In longer documents, paragraph blocks and other individual paragraphs must be arranged within sections that are then combined and ordered to produce the complete document. We impose structure at each level to reflect relationships between different parts of the whole and to communicate more effectively with our readers.
- Both advisory and advocacy writing consist of basic ingredients: facts, issues, authorities, rules, rationales, applications, and conclusions. These ingredients shape the large-scale organization for most legal documents by determining their major sections. These sections typically follow the
- You have now taken the first three steps to writing a clear, precise, and effective legal document. You have drafted your preliminary outline and are ready for step four, small-scale organization, which includes drafting a detailed outline of individual paragraphs.
- The opening issue or conclusion and the closing conclusion usually are comprised of a sentence or short paragraph. Traditionally, the IRAC paradigm was used in advisory writing, and the CRAC paradigm was used in advocacy writing. Now lawyers are more likely to also begin with their conclusion in advisory writing, so we generally refer to the CRAC paradigm in this book.
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Chapter 5. Language in the Legal Setting 21 results (showing 5 best matches)
- Clear, precise, and effective use of language is fundamental to legal writing. As Justice Scalia observed, “Lawyers have only one tool: language.” To use language effectively, each word must be intentional and precise. Each word must be necessary. Brevity is not only the soul of wit, but also essential in every form of legal writing.
- You have now considered the word choices you will make as you draft your legal document. This is part of Step Five in the legal writing and analysis process. Your next task, as you write your first draft, is to write effectively in either an objective, advisory style or in a persuasive style, as an advocate. Chapters Six and Seven address advisory and persuasive writing conventions and techniques.
- A common source of imprecision in legal writing is personification, the giving of human qualities to abstractions or objects, for example, “cold-blooded decision.” A related source of imprecision is metonymy, the substitution of an attributive or a suggestive word for the word identifying a person or thing, for example, “stage hand” for “stage worker.” In some types of writing, this kind of imprecision may be acceptable. In legal writing, precision is
- Regardless of the audience, style, or tone, legal writing needs to be spare. Sometimes there are page limits, as with most court briefs. The best way to write concisely is to ask, for each word: Do I need this? For each thought, ask whether it is necessary to your conclusion or purpose.
- Legal writing must serve a variety of audiences, from lay readers to appellate judges. The tone, style and extent of analysis must be varied to serve each reader’s needs. Often legal writers collaborate with others, requiring that styles and tones be matched in the final document.
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Chapter 8. Sentence Design 26 results (showing 5 best matches)
- In general, passive voice is more useful and customary in legal writing than in other forms of professional or technical prose. In persuasive forms of legal writing, passive voice provides a useful tool for shifting emphasis.
- Note, however, that accuracy and precision in legal writing may require a negative statement. For example, “This case has no precedential value.” An affirmative revision is possible, but would not be understood as readily by lawyers and judges.
- FOR LEGAL WRITING
- Of the three basic sentence types (simple, compound, and complex), simple and complex should dominate legal writing.
- To achieve its effect, the periodic sentence is often opened with “it” or “there” or “the fact that.” These pronouns or other “place-fillers” stand in for the subject (itself reserved for a later or final position in the sentence). Although this sentence pattern can be effective if used sparingly, it is sometimes overused in legal writing, especially in argument. Use it with care and only for special emphasis.
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Chapter 2. Legal Analysis 61 results (showing 5 best matches)
- The legal writing process starts with legal analysis. Before you start writing, you must decide what legal issue or issues you need to analyze to solve a particular problem. Lawyers don’t usually analyze the law in the abstract. More commonly, a lawyer must understand what legal remedies or defenses are available to address a client’s case, how the law would answer a specific legal question given a particular factual situation, or how a change in the law might affect the rights and responsibilities of a client or a class of people.
- Legal culture is conservative. Principles of legal analysis restrain the pace of evolution in the law. Our legal system grew out of the English Common Law in which the law was developed by judges deciding individual cases, not by legislatures writing statutes.
- First, to understand what legal avenues will further your client’s interests, you must consider a question of law in a specific factual context. A solid grasp of the objective factual circumstances is an essential first step to legal analysis. Writing, outlining, or even simply listing the facts will help you keep them in mind as you research the relevant law.
- You may read and brief cases differently for your doctrinal classes than you do in your legal writing course or in practice. Cases in casebooks have been edited to focus on particular issues, but the cases that you will research on your own are not. Cases often address multiple issues, and only some of them may be relevant to your client’s matter. You might skim the opinion first to see what parts are relevant to the legal issue that you are analyzing. Be careful, however, because sometimes opinions are not well organized. Information relevant to your issue may be located in a place in the opinion that you might not expect. In legal writing, as in law practice, you must almost always read a case specifically to understand how the rule from the case will affect your client.
- In our common law system, individual cases that are decided now will have a precedential effect on how future cases should be decided through the principle of stare decisis. Stare decisis is Latin for “to stand by that which has been decided.” It means that like cases should be decided alike. The common law process thus prescribes that judges apply the law consistently with how it was applied in the past. Even though modern legal systems mix statutory law written by legislatures with case law written by
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Chapter 6. Advisory Writing 55 results (showing 5 best matches)
- This chapter addresses two classic forms of advisory writing: the legal research memorandum and the client letter. We also address advisory writing’s modern form: email. We describe the special features and preferred writing techniques for each genre of advisory writing.
- Lawyers write to clients to give answers to legal questions and to describe possible courses of action and attendant risks. In representing business clients, you may be writing to in-house counsel. But many clients are lay persons who will not typically have special knowledge of the law, its concepts, and its terminology. Because lawyers should write for their clients’ benefit and understanding, writing an advisory letter to a client who is a lay person can be a challenging writing task. The first step is to recognize the problem.
- As a law student or a new lawyer, you may have trouble writing objectively because that style will be unfamiliar at first. All writers want to express feelings and opinions, especially if they have strongly held views. With practice, however, you will become comfortable with looking at a problem from both sides and with the conventions of predictive legal writing.
- . Unless you are writing a formal opinion letter, leave out analytical details, like case analysis, and legal citations. For most clients, citations will be indecipherable. Before including this technical legal information, ask yourself whether your client will want or will understand it.
- wizardry. The form and substance of these communications reflect on your professional competence. They also can profoundly affect legal outcomes. Like other forms of legal writing, you will need to adapt your writing skills and practices to these forms of communication.
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Chapter 10. Final Steps: Editing, Proofreading, Formatting Citations and Quotations 36 results (showing 5 best matches)
- Identify and eliminate your “usual suspects.” Your first-year writing class will introduce you to the best practices for writing clearly, precisely, and effectively about the law. You will continue to learn about those practices throughout your legal career. While some of your writing skills, habits, and strategies will transition smoothly to legal writing, like us, you may find that some won’t make the cut. Run-on sentences and excessive use of hyphens or exclamation marks are examples of the kinds of things that will need to change. With practice, you’ll learn to identify the “usual suspects” in your own writing style and develop strategies to eliminate them. To discover your own patterns of writing and uncover habitual problems, see the Individual Writing Analysis provided in Appendix B.
- Legal writing scholar Bryan A. Garner advocates switching to the approach used in academic writing, namely only incorporating the most important parts of a citation—like the case name, court, and date—in the text. The other details, like the reporter name, and the volume and page numbers, are placed in footnotes. For example:
- Law students typically must provide a sample of their legal writing when they apply for jobs in both the public and private sectors of our profession.
- The golden rule for when to quote in legal writing is the same rule that governed the writing you did before law school. When you use language that is not your own, you must communicate that fact to your reader by putting that language in quotation marks and by supporting that quoted language with a citation. For practitioners’ documents, including memoranda and briefs, the golden rule applies to language in the full range of legal materials, including cases, statutes, regulations, and secondary sources like law review articles. In using case law, this rule is not limited to the court’s legal analysis. It also applies to the court’s statements about the procedural history and facts.
- Choose a legal citation system. The first step in formatting citations is to figure out what set of citation and style rules to use. Many law school writing programs and journals have adopted either the
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Chapter 1. Basic Steps to Legal Writing and Analysis 22 results (showing 5 best matches)
- The first principle for writing, both at this stage and for your final draft, is to write short sentences. You will save precious time if you develop a habit of writing short sentences. However, as we discuss in subsequent chapters on legal language and sentence design, those short sentences must also be precise. Helpful hints for shortening sentences are offered in Chapter Eight, Sentence Design. Chapter Five, Language in a Legal Setting, will help you select the most precise and readily understood words to populate your sentences. Chapter Six will guide your sentence structure and word choices for advisory writing. Chapter Seven will guide you for advocacy writing.
- Your first task is to identify your goal. This seems easy and self-evident, but it is surprising how often we begin a writing project with only a vague idea of our goal. Write down your goal or goals. This first simple step will give you clarity and focus, providing a touchstone throughout the writing and analysis process. Are you communicating legal advice to a client? Are you summarizing current legal authorities for an attorney? Are you crafting a settlement agreement? Are you persuading a court to do something specific? Know precisely what your goal is before you begin.
- This chapter describes our step-by-step method of legal writing and analysis, as illustrated in the flow chart below. The chart describes the process of legal problem solving for the legal writer. The individual steps are more fully explained in the chapters to follow.
- Conclusions normally come first because most types of legal writing provide answers to legal questions. Most readers want to know the answers immediately. This includes clients reading opinion letters and judges reading briefs. Therefore, answers should usually be given first, before supporting analysis or discussion.
- The process of outlining may reveal holes in your legal analysis or missing facts. The iterative process of adding further research and investigating facts may continue until you are finished with the document. Outlining and drafting force us to think more precisely and logically, which often results in new insights requiring further research. This process is discussed in detail in Chapter Three, Large-Scale Organization; Chapter Six, Advisory Writing; and Chapter Seven, Advocacy Writing.
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Chapter 9. Punctuation and Grammar 44 results (showing 5 best matches)
- The most common punctuation questions in legal writing are addressed here. For a complete review of by William Strunk and E.B. White, which may be used with a few caveats. For technical writing, such as legal writing, a few of Strunk and White’s rules of usage must be modified, as discussed below.
- On printed forms, the use of “she/he” and “his/her” allows the individual user to cross out the inappropriate choice. The odd-looking “s/he” may save time in writing informal memoranda, but it should not appear in formal legal writing.
- The punctuation section in this chapter covers those rules most commonly needed in legal writing. The rules receiving greatest emphasis are those that prevent ambiguity and that save the reader from having to reread for comprehension.
- Use a comma to mark each separate element in a series; that is, put a comma after each item and before the conjunction. (A, B, and C). The mandatory use of a series comma in legal writing varies from such sources as Strunk and White, which omits the final comma.
- Lay readers can be helpful in several ways: (1) they have not been “desensitized” to the obfuscation and convolutions of legal writing, and (2) they can identify the words, sentences, or ideas that will be difficult for non-lawyers to understand.
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Chapter 7. Advocacy Writing 64 results (showing 5 best matches)
- The tone of your brief should be professional. The central characteristics of professional legal writing are that it be clear, succinct, and precisely correct. And for briefs, even more than for in-house memoranda, your writing should also be easy to read and engaging. The tone of your writing should be formal, without being stiff. Some legal writers use contractions in their writing, while others avoid them as being too informal. We use them here intentionally to create a more conversational tone. You should make a conscious decision whether or
- When you write a brief, all of your choices are rhetorical, aimed at convincing a judge to adopt the position of your brief. Thus, when you describe the law, you will focus your discussion of the law to elaborate on the issues in your case. Indeed, a brief is about a concrete legal dispute, not about the law in the abstract. And that’s a good thing, because reading about a concrete legal dispute is more interesting than reading about a legal abstraction.
- The basics of writing an advocacy letter are much the same as with all legal writing. First, write clearly and directly. Tell who is writing the letter, you or client. Identify who the client is and what the client’s relationship is to the Addressee. Tell what the client wants. Succinctly describe the facts, from your client’s point of view. Consider whether or how to include sympathetic facts about how the problem has affected the life of your client. Integrate law and fact in a way that will likely induce the response you want. Remember that every side has a story. Write your client’s story, without ignoring the other side of it. Conclude with a clear statement of the result or action that your client is seeking. The reader should know at the end of the letter exactly what your client wants and the precise and clear reasons that your client should have it.
- Three classical rhetorical appeals are at the foundation of persuading the legal reader: logos, or the rational and logical appeal of an argument, pathos, the emotional appeal of an argument, and ethos, the ethical appeal of an argument. You must attend to all three of these components to write a persuasive brief. Exactly how you execute the brief will depend on the audience for the brief, the purpose of the brief, and the general social context in which you write it.
- Once you have identified your legal arguments, organize them. Write them as a series of contentions to assess whether some contentions must logically be addressed before others. If not, address your strongest point first.
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Chapter 4. Small-Scale Organization 12 results (showing 5 best matches)
- You have now completed step four in the legal writing process. You have gathered any additional facts or law that you need to analyze your issues and included this in your more detailed outline. You have drafted a detailed outline, including the topics of paragraphs and paragraph blocks. You are ready to begin writing the first draft.
- We design paragraphs to create: (i) logical divisions, (ii) rhetorical effects, and (iii) visual effects. These purposes often overlap. In legal writing, paragraphing typically should reflect logical divisions. Our analysis or arguments depend on
- A good transition refers to what has preceded and announces what is to follow. Without transitions, a piece of legal writing is like a mosaic without glue: no matter how elegantly designed, nothing holds together.
- Drafting involves choosing each word carefully, which is the subject of Chapter Five. Drafting involves choosing the right sentence structure for the units of thought you need to convey, which is the subject of Chapter Eight. Choosing the right words and the right sentence structures requires a clear understanding of the purpose of your document, whether it is advisory or persuasive. Advisory writing techniques are discussed in Chapter Six. Persuasive writing techniques are discussed in Chapter Seven.
- Paragraphs may also be divided for rhetorical purposes. As discussed in Chapter Seven, advocacy writing uses techniques for emphasis, such as placing key words at the beginning or end of a sentence. Similarly, the beginning and end of a paragraph are natural points of emphasis.
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Appendix D. Selected Sources 29 results (showing 5 best matches)
- A concise and widely used paperback guide to general writing. Useful as an introduction to popular discourse; parts of the style section not helpful for legal writing.
- Legal Reasoning and Legal Writing: Structure, Strategy, and Style
- Association of Legal Writing Directors & Coleen M. Barger,
- Reviews the history of plain language in legal writing, explains the cost-savings to the profession, and makes a convincing case for simplicity.
- A fine historical approach to legal language, written by a lawyer. Entertaining and instructive.
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Appendix A. Sample Legal Materials and Documents 11 results (showing 5 best matches)
- Describe the court’s answers to the legal issues before it. Like an issue, a holding combines a principle of law with material facts. Often a holding can be written by turning the issue into a statement. In a case brief, a holding may be reduced to “yes” or “no” if the issue is written narrowly. A holding should be objective and can be written broadly or narrowly. You may choose to include the court’s disposition or result in this section, such as “judgment of dismissal reversed.” Sometimes the disposition is referred to as a “procedural holding.”
- The proper format for research memoranda may vary, so be sure to follow the conventions used at your law school or legal office. Like research memoranda, the proper format for trial briefs, or memoranda of points and authorities, also will vary. If you are writing a brief, or any pleading to file with a court, you always must check the specific rules that apply in that court, including any rules about formatting.
- State the questions that the court decided in order to resolve the parties’ dispute. Typically written as an objective question or statement, a legal issue combines a principle of law with key case facts. You can craft an issue broadly or narrowly, depending on the facts that you include. However, you should include enough facts to make the issue specific to the case you are briefing.
- WRITING A FORMAL CASE BRIEF
- SAMPLE LEGAL MATERIALS
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Appendix C. Glossary of Words Commonly Misused in Legal Writing 31 results (showing 5 best matches)
- GLOSSARY OF WORDS COMMONLY MISUSED IN LEGAL WRITING
- —accent on the first syllable) is a psychological term that you will probably have few occasions to use in legal writing. It refers to an outward emotional appearance.
- In legal writing, indications of authorities are called
- normally reflects lack of precision in legal writing.
- . It is correctly used in the case title for certain kinds of legal proceedings (
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Index 29 results (showing 5 best matches)
Outline 28 results (showing 5 best matches)
Title Page 2 results
Dedication 1 result
Copyright Page 1 result
- Publication Date: February 17th, 2017
- ISBN: 9781634602815
- Subject: Legal Writing
- Series: Nutshells
- Type: Overviews
- Description: This book provides a ten-step guide to clear, precise, and effective legal writing and analysis for both law students and experienced lawyers. It gives the keys to writing legal memoranda and briefs, organizing analysis, crafting clear and concise sentences, using legal language accurately, using grammar and punctuation properly, writing persuasively using classical rhetorical techniques. The book describes a method for analyzing and improving individual writing style includes a sample analysis. It also includes new material on using plain English and new legal documents to illustrate effective writing techniques.