Legal Writing and Analysis in a Nutshell
Authors:
Bahrych, Lynn / Merino, Jeanne / McLellan, Beth
Edition:
5th
Copyright Date:
2017
21 chapters
have results for writing
Introduction 5 results
- 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.
- 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
- 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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Chapter 1. Basic Steps to Legal Writing and Analysis 13 results (showing 5 best matches)
- Estimate how much time your audience will have to read what you write. This may take some investigation, but will save you time if, as is usually the case, your intended audience will be reading what you write quickly and possibly only once. If your document is likely to be read as email, on a small screen or hand-held electronic device, then your writing must be more like a telegram than a Victorian novel. Keep your busy reader in mind as you write. Also keep in mind precisely what you want your reader to do as a result of your writing.
- 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.
- Part of identifying your goal is to identify your audience. Who will be reading what you write? Anything written to address a conflict may eventually be read by a judge, regardless of the initial audience. Identify all possible readers. Although your writing may be protected by the
- With your detailed outline, you are ready to begin writing your first draft. If this seems daunting, remember that this is merely the first draft. Just write it. Don’t worry about getting everything perfect at this stage. Just start writing complete sentences, or even fragments of sentences, if necessary, to expand the outline into paragraphs. In later steps, you will edit, refine, and revise. At this stage, just get your thoughts on paper, so to speak.
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Chapter 6. Advisory Writing 39 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.
- You have now completed the first part of Step Five, drafting advisory writing. The second part, drafting persuasive writing, is addressed in Chapter Seven. The same revision, editing, and proofreading skills discussed above apply to persuasive, or advocacy, writing, with the addition of strategies for rhetorical effects not needed or desired in advisory writing.
- A memorandum will typically be written for another lawyer, such as a senior partner or associate. But sometimes, a memorandum will be written for or shared with another professional, such as an accountant or a trust officer. To help tailor solutions to your audience’s needs, try to identify the memorandum’s prospective readers and its specific purposes as early in the research and writing process as possible.
- (1) Replace words and phrases, including technical terms, with which a lay reader is probably unfamiliar, with familiar words whenever you can do so without losing meaning. For example, instead of “voir dire,” write “questioning of prospective jurors.” Instead of “statute of frauds,” write “a statute that requires some contracts to be written.”
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Chapter 10. Final Steps: Editing, Proofreading, Formatting Citations and Quotations 22 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:
- Legal readers expect the details to be right. But sweating those details almost always takes more time than we think it will. With practice, you will learn to predict how much time to budget for finalizing your work. Getting every detail right is an elusive goal, and, like us, you will make a few mistakes. But combining a high level of effort with the best writing practices, including the ones we recommend here, will help you write clear, precise,
- 11. Use customized checklists. Traditionally lawyers have used checklists to guide them in performing a variety of procedural and substantive tasks correctly. A customized checklist also can be a great way to make sure that you have covered all the analytical and stylistic bases for a writing assignment. A checklist can help you catch big mistakes, like leaving out a required section, and remind you to hunt down smaller ones, like grammar mistakes and misspellings. A sample checklist limited to writing style might include these questions:
- Consider being conservative about style. Although legal writing conventions have traditionally been conservative, some of those conventions, like avoiding contractions or the first person, may be changing. If you aren’t sure who your audience will be, consider defaulting to the traditional, and more formal, stylistic conventions in your writing sample. For example, choose “are not” over “aren’t,” and avoid the first person “I” or “we” and the second person, “you.”
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Appendix B. Individual Writing Analysis and Microgrammar 18 results (showing 5 best matches)
- 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.
- 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.
- 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.
- 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.
- Using the twelve steps of the individual writing analysis, this writing sample can be clarified, its readability can be improved, and it can become more persuasive.
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Chapter 3. Large-Scale Organization 12 results (showing 5 best matches)
- 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.
- 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.
- Your next steps are to choose the appropriate order for these issues and to communicate that structure to your reader. Sub-sections (B) and (C) below contain some advice that can help you take those steps. Our examples assume that you are writing an objective memorandum. But if your goal is to advocate rather than to advise, you may opt to alter these patterns for rhetorical effect. (See also Chapter Seven on Advocacy Writing.)
- Outlining has other practical benefits in law school and in practice. Your busy schedule will need to accommodate working on writing assignments over time. Having an outline on your computer that you can gradually expand into a draft can help you pick up where you left off at your last drafting session efficiently. As a practitioner, you often will write complicated documents, like briefs, with other lawyers. Agreeing on an outline will help everyone see the big picture and make it easier to assemble the document into a coherent whole.
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Chapter 5. Language in the Legal Setting 13 results (showing 5 best matches)
- 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.
- 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.
- 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.
- 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
- Clichés come readily to mind during writing. Thus, a standard part of your revision should be to remove them or to renovate them. For example, you might play on the common cliché “adding insult to injury” by writing “adding insult to perjury,” but remove such clichés as “height of absurdity,” “day of reckoning,” and “cold light of reason.”
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Appendix C. Glossary of Words Commonly Misused in Legal Writing 16 results (showing 5 best matches)
- . Rather, write . Do not write . Rather, write
- means “with words or consisting of words, either written or spoken.” Thus,
- can be more directly written as can be more concisely written as
- GLOSSARY OF WORDS COMMONLY MISUSED IN LEGAL WRITING
- Law students are sometimes averse to rigorous writing exercises.
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Chapter 8. Sentence Design 15 results (showing 5 best matches)
- A lawyer who can write deserves her fee. (Does any lawyer who can write deserve her fee? Or do only those who write
- 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.
- To analyze the sentence structures and possible ambiguities in your own writing, see the Individual Writing Analysis in the Appendix.
- As soon as you have completed a subject-verb unit, consider ending the sentence. Continue to write another subject-verb unit in the same sentence only if ideas are closely related or you have a rhetorical purpose in doing so.
- Avoid writing sentences beginning with an unnecessary “It . . . that” structure.
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Chapter 7. Advocacy Writing 43 results (showing 5 best matches)
- Brief writing for litigation is formal. The content, the format, the wording, and the writer’s tone are all subject to conventions, discussed below. Before you start writing, read your course assignment or the rules of court to see what components are permitted or required in the brief, what format is required, and what the word or page limits are.
- Some courts require a Summary of Argument instead of an Introduction. Although the Summary of the Argument is placed before the argument in a brief, it should be written after the argument has been both written and revised. A Summary is often included in a brief that contains Questions Presented and answers the questions with reasoning that supports the answers.
- Style matters. A judge will more readily agree with a brief that is well written. A fluid writing style, one with few hiccups and no need to re-read, can smoothly lead the reader to assent. Your brief should be written in the active voice using crisp verbs to keep the reader engaged. And it should be organized in a logical way with transitions between sentences and paragraphs. See Chapter Four and Appendix C for how to use transitions to help your reader see the connection between ideas.
- 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
- Lawyers often write advocacy letters to opposing clients or opposing counsel. All of the advice in Chapter Six for writing advisory letters is relevant here.
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Chapter 9. Punctuation and Grammar 40 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.
- : The judges will read the briefs that are well written. (Only the well-written briefs will be read.)
- : The judges will read the briefs, which are well written. (All the briefs will be read, and all the briefs are well written.)
- A dash may be used sparingly to indicate a break, shift or interruption. For example, “dashes are forms of loose punctuation—useful in writing fiction—not generally favored in technical writing.”
- When law graduates begin to practice law—which for most lawyers means writing every day under pressure—they should already know how to write well.
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- 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.
- WRITING A FORMAL CASE BRIEF
- 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.
- first text sentence. Another option is to write the heading and the first text sentence so that they work together to state a more specific conclusion. For example, the heading could state a broad conclusion, like “A jury could find that Scott intended to confine Abrams.” Then the first text sentence could briefly explain “why” you reached the conclusion stated in the heading.
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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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Chapter 4. Small-Scale Organization 7 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.
- 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.
- 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
- 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.
- 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.
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Appendix D. Selected Sources 16 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.
- Wise and clearly written advice on how to persuade courts orally and in writing.
- 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.
- Legal Writing and Analysis
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Chapter 2. Legal Analysis 15 results (showing 5 best matches)
- Of course, our government is much more complicated now than it was in Old England. The U.S. Constitution establishes three branches of government—the legislative, executive, and judicial—each of which plays a role in creating law. The legislature writes statutes, the courts interpret them, and the executive enforces them. But, as explained in opinions written by judges and regulations written by executive agencies also have the force of law.
- 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.
- 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
- If you are reading the opinion to prepare a written analysis, take notes to save yourself time when you begin to write. Note the exact page where key ideas appear in the opinion so you can cite the case properly when you draft and edit your document. Quote key phrases and particularly pithy sentences that you might want to quote. Even in your notes, take care to use quotation marks to avoid inadvertently failing to acknowledge the source in your final document.
- The formal case brief is a classic tool for analyzing judicial opinions. Your teachers or supervising attorneys may require you to write briefs for particular assignments. You also may find it helpful to prepare a formal case brief for cases that govern an issue you are researching. Regardless of your purpose, writing a case brief assures that you have thoroughly deconstructed and studied a particular case. See Appendix A for a summary of the components of a formal case brief and for an example of a formal case brief.
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Index 21 results (showing 5 best matches)
Outline 17 results (showing 5 best matches)
Dedication 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.
