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Writing in the field of law is a type of technical writing used by lawyers, judges, legislators, and others in law to express law analysis and law rights and duties. Writing in the field of law is used to advocate for or to express the resolution of a client's law matters. Writing in the field of law places heavy reliance on authority. In most writing in the field of law, the writer must back up assertions and statements with citations to authority. This is accomplished by a unique and complicated citation system, unlike that used in any other genre of writing. Writing in the field of law value precedent, as distinct from authority. Precedent means the way things have been done before. For example, a lawyer who must prepare a contract and who has prepared a similar contract before will often re-use, with limited changes, the old contract for the new occasion. Or a lawyer who has filed a successful motion to dismiss a lawsuit may use the same or a very similar form of motion again in another case, and so on. Many lawyers use and re-use written documents in this way and call these re-usable documents templates or, less commonly, forms. Writing in the field of law extensively uses technical terminology that can be categorized in four ways: Specialized words and phrases unique to law, e.g., tort, fee simple, and novation; Quotidian words having different meanings in law, e.g., action (lawsuit), consideration (support for a promise), execute (to sign to effect), and party (a principal in a lawsuit); Archaic vocabulary: Writing in the field of law employs many old words and phrases that were formerly quotidian language, but today exist mostly or only in law, dating from the 16th century; English examples are herein, hereto, hereby, heretofore, herewith, whereby, and wherefore (pronominal adverbs); said and such (as adjectives); Loan words and phrases from other languages: In English, this includes terms derived from French (estoppel, laches, and voir dire) and Latin (certiorari, habeas corpus,prima facie, inter alia, mens rea, sub judice) and are not italicised as English law language, as would be foreign words in mainstream English writing.
These features tend to make writing in the field of law formal. This formality can take the form of long sentences, complex constructions, archaic and hyper-formal vocabulary, and a focus on content to the exclusion of reader needs. Some of this formality in writing in the field of law is necessary and desirable, given the importance of some law documents and the seriousness of the circumstances in which some law documents are used. Yet not all formality in law writing is justified. To the extent that formality produces opacity and imprecision, it is undesirable. To the extent that formality hinders reader comprehension, it is less desirable. In particular, when law content must be conveyed to nonlawyers, formality should give way to clear communication. What is crucial in setting the level of formality in any law document is assessing the needs and expectations of the audience. For example, an appellate brief to the highest court in your jurisdiction calls for a formal style--this shows proper respect for the court and for the law matter at issue. An interoffice law memorandum to a supervisor can probably be less formal--though not colloquial--because it is an in-house decision-making tool, not a court document. And an email message to a friend and client, updating the status of a law matter, is appropriately informal. Transaction documents--law drafting--fall on a similar continuum. A 150-page merger agreement between two large corporations, in which both sides are represented by counsel, will be highly formal---and should also be accurate, precise, and airtight (features not always compatible with high formality). A commercial lease for a small company using a small office space will likely be much shorter and will require less complexity, but may still be somewhat formal. But a proxy statement allowing the members of a neighborhood association to designate their voting preferences for the next board meeting ought to be as plain as can be. If informality aids that goal, it is justified. Many U.S. law schools teach writing in the field of law in a way that acknowledges the technical complexity inherent in law and the justified formality that complexity often requires, but with an emphasis on clarity, simplicity, and directness. Yet many practicing lawyers, busy as they are with deadlines and heavy workloads, often resort to a template-based, outdated, hyperformal writing style in both analytical and transactional documents. This is understandable, but it sometimes unfortunately perpetuates an unnecessarily formal writing in the field of law.
Writing in the field of law is of two broad categories: (i) law analysis and (ii) law drafting. Law analysis is two-fold: (1) predictive analysis, and (2) persuasive analysis. In the United States, in most law schools students must learn writing in the field of law; the courses focus on: (1) predictive analysis, i.e., an outcome-predicting memorandum (positive or negative) of a given action for the attorney's client; and (2) persuasive analysis, e.g., motions and briefs. Although not as widely taught in law schools, law drafting courses exist; other types of writing in the field of law concentrate upon writing appeals or on interdisciplinary aspects of persuasion. The law memorandum is the most common type of predictive law analysis; it may include the client letter or law opinion. The law memorandum predicts the outcome of a law question by analyzing the authorities governing the question and the relevant facts that gave rise to the law question. It explains and applies the authorities in predicting an outcome, and ends with advice and recommendations. The law memorandum also serves as record of the research done for a given law question. Traditionally, and to meet the law reader's expectations, it is formally organized and written. The persuasive document, a motion or a brief, attempts to persuade a deciding authority to favorably decide the dispute for the author's client. Motions and briefs are usually submitted to judges, but also to mediators, arbitrators, and others. In addition a persuasive letter may attempt to persuade the dispute's opposing party. Persuasive writing is the most rhetorically stylized. So although a brief states the law issues, describes authorities, and applies authorities to the question---as does a memorandum---the brief's application portion is framed as an argument. The author argues for one approach to resolving the law matter and does not present a neutral analysis. Law drafting creates binding, law text. It includes enacted law like statutes, rules, and regulations; contracts (private and public); personal law documents like wills and trusts; and public law documents like notices and instructions. Law drafting requires no law authority citation, and generally is written without a stylized voice.
Secondary sources are good starting points. Legal encyclopedias are a good source to consult first if you are unfamiliar with law and legal concepts. They combine primary and secondary sources to provide overviews of many aspects of law, and they give numerous citations to relied-upon authority. Today, there are two major legal encyclopedias: Corpus Juris Secundum (CJS) (1936-) and American Jurisprudence (AmJur), 2nd edition, (1952-). For historical research, the older editions, Corpus Juris (1914-37) and American Jurisprudence (1936-52), are useful, as well as The American and English Encyclopaedia of Law (1887-96; 2nd edition, 1896-1905) and Ruling Case Law (1914-21). It is important to remember that each of these encyclopedias is different. Different topics, different subject headings, and different case law may be provided in each. In Corpus Juris Secundum each section has a summary of the law, usually in boldface type, and a reference to a topic heading (a key number) used in the West Digest System, which gives further access to related case law. In American Jurisprudence, research references (usually to American Law Reports, or ALR) are given under each major heading. Legal treatises are also good sources for general information on substantive law, though most do not focus specifically on women's issues and rights. Consulting a treatise on a specific subject will usually yield some background information and, more important, citations to statutory or case law. Many of the treatises focusing on women were not published until the 1970s, but a few were published earlier. An early one that did relate specifically to women was Woman's Manual of Law, by Mary A. Greene (1857-1936), written in 1902 to “present in a clear, simple, and if possible, entertaining way, those principles of law governing the business world and domestic life which most men understand in some degree, or think they do, but which most women do not understand, and wish they did.”
When consulting legal treatises, encyclopedias, periodicals, digests, and codes, a variety of index terms are useful in researching issues concerning women. For modern sources, index terms familiar since the 1960s, such as “woman,” “sexual harassment,” and “marriage,” can be used. The best technique for searching an index is to begin with a narrow term and broaden the search. For instance, if you are trying to determine whether a state has laws on the battered-wife syndrome, start with the narrow term “battered wife syndrome.” If that does not yield results, broaden your search to “spousal abuse.” If you do not find either of these phrases, use the broader term “domestic violence.” Searching under antonyms, synonyms, and associated words of all kinds may lead to useful information. Researching historical issues can be problematical because the legal status of women changed over time. The researcher must try to think the way an eighteenth-, nineteenth-, or early-twentieth-century legal scholar might have thought. Most legislation pertaining to women concerns them indirectly. Married women were considered “silent partners” in marriage relationships. As a result, “woman” or “women” were rarely used as indexing terms. By and large, indexing terms reflected a woman's relationship to a man. Terms such as “wives,” “dower” (a dower being the portion of real and personal property of a deceased husband that the law gives to his widow during her life), “widows,” “coverture,” “femes covert” (married women), “femes sole” (single women), or “females” were used. Normally, unless the application of a law treats men and women differently, there will be no distinct subject terms for indicating gender in an index. For instance, contract law applies to any party to a contract regardless of gender or position as long as the requirements for contracting are met, so there are no distinct headings for women; whereas property law, a substantive area, has distinct headings for women, because widows held a unique position in estate and succession laws. It is important to remember to make the distinction between law and social conditions in dealing with women's issues. Often, it was not the wording of the law that prohibited women from doing certain things, but the social interpretation of the law influenced by mores.
Writing in the field of law has a lot in common with other forms of written communication; the same goals still apply. That is, you want to get rid of the clutter, cut out the mess, make your writing efficient and clear. Sound easy? Then why do so many lawyers have trouble writing a clear, understandable sentence? Here's the answer: because it's not easy. So many words available to use, so many ways of expressing yourself--it's a wonder we're not paralyzed by indecision when we sit down to write a meaningful sentence. And the truth is, many are. The good news is there are shortcuts to a clear, understandable style. Keep these five rules in mind and if nothing else, you'll be able to fake your way to good writing. Rule #1: Use Concrete Words: A lawyer's mind is a whirlwind of mushy law abstractions. You know them well: property interest, subject matter jurisdiction, predecessor corporation, enough to fill a book. Often, there is no better way to communicate a given thought than with the familiar lawyerly shortcut. But an overuse of abstractions drains your prose of verve and life. Try substituting a concrete word or phrase when the abstract, alternative choice has no significance. Not unilaterally terminated the employee's job but fired Mr. Smith. Not apprehended the perpetrator but arrested Mr. Jones. You get the idea. Strive to give your reader a visual image. Avoid empty legalisms. When in doubt, choose the concrete word. Rule #2: Write in the Active Voice: We're reminded to write in the active voice so often we've become numb to the importance of this rule. Yet no other will point you more quickly in the direction of a clear, forceful style. How to do it? Simply put, tell the reader who is doing the acting, and put the actor at the front of the sentence. Not the lease was broken but the landlord broke the lease. Not the statute of limitations was blown but the plaintiff's lawyer blew the statute of limitations. It's almost magical the way beginning your sentences with the main agency of action will crystallize your meaning in the reader's mind. Easy enough? Then use the active voice in your writing. Rule #3: Simplify Half of writing--in many cases, more than half--is rewriting. Often we're uncertain about what we meant to say until we've read over our first attempts to make our meaning clear on paper. As you write and rewrite, remember that nothing is sacred. Cut. Prune. Shorten your sentences. Discard the complex and replace it with the simple. Get rid of the lawyerly verbosities, the pompous mumbo jumbo, the unnecessary law jargon. Don't be embarrassed to rely on one and two-syllable words. Use bullets to set off lists of information. Ironically, keeping it simple is one of the most difficult things about good writing. Work at it. Your readers will thank you for it. Rule #4 Make Generous Use of Headlines: A page full of solid text will scare off your readers. Better to break things up with headings and sub-headings that provide a road map to comprehension and, as an added benefit, give relief for eyes grown weary of blocks of text. An example is the way I've organized this article. It works just as well with writing in the field of law. Keep your headlines punchy, and try to incorporate your own spin as an advocate. Not The Three Elements for Recovery under the False Claims Act but Plaintiffs Fail to Prove The Three Elements. Remember: it's not enough for your writing to be pleasing to the ear. It should also be pleasing to the eye. Rule #5 Rely on a Personal Editor: A rule that's good enough for newspapers, magazines, and book publishers is good enough for you. Let someone else read your important briefs and pleadings before you rashly file them with the court. Make use of an associate, your secretary, your spouse--anyone who can give your work a fresh reading with an unjaundiced eye. Aim to make your writing accessible to law novices. Even if you miss the mark from time to time, you'll begin naturally to favor the simple construction over the complex. Ask your readers these questions: Does it make sense? Is it clear? Have I convinced you that I'm right? If necessary, rewrite. Then let it rip! With use of these five rules of thumb, many other hallmarks of the good writer will follow naturally--an authoritative voice, a pleasing style, and with luck, the right result.
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