Even non-litigation positions may require you to research a legal question, analyze the relevant legal precedents, and present an answer in a memo. Work in academia may involve not only writing for scholarly publications but also teaching law students the basics of legal writing and citation. Some larger government agencies and non-profit organizations may also hire someone to provide legal writing training to new hires or to oversee their legal publications.
Presenting written arguments in support of a client. Applying legal reasoning and analysis to a fact pattern. Researching and incorporating relevant legal precedents. Legal writing places heavy reliance on authority. In most legal writing, the writer must back up assertions and statements with citations of authority. This is accomplished by a unique and complicated citation system, unlike that used in any other genre of writing.
Different methods may be used within the United States and in other nations. Legal writing values 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. Legal writing extensively uses technical terminology that can be categorised in four ways:. These features tend to make legal writing 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 legal writing is necessary and desirable, given the importance of some legal documents and the seriousness of the circumstances in which some legal documents are used. Yet not all formality in legal 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 legal content must be conveyed to nonlawyers, formality should give way to clear communication. What is crucial in setting the level of formality in any legal document is assessing the needs and expectations of the audience. For example, an appellate brief to the highest court in a jurisdiction calls for a formal style—this shows proper respect for the court and for the legal matter at issue.
An interoffice legal 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 legal matter, is appropriately informal. Transaction documents—legal drafting—fall on a similar continuum.
A 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. 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 legal writing style. Recently a variety of tools have been produced to allow writers to automate core parts of legal writing.
For example, automated tools may be used by transactional lawyers to check certain formalities while writing, and tools exist to help litigators verify citations and quotations to legal authority for motions and briefs. Legal writing is of two, broad categories: i legal analysis and ii legal drafting. Legal analysis is two-fold: 1 predictive analysis, and 2 persuasive analysis.
In the United States , in most law schools students must learn legal writing; the courses focus on: 1 predictive analysis, i. Although not as widely taught in law schools, legal drafting courses exist; other types of legal writing concentrate upon writing appeals or on interdisciplinary aspects of persuasion. The legal memorandum is the most common type of predictive legal analysis; it may include the client letter or legal opinion.
The legal memorandum predicts the outcome of a legal question by analyzing the authorities governing the question and the relevant facts that gave rise to the legal question. It explains and applies the authorities in predicting an outcome, and ends with advice and recommendations. The legal memorandum also serves as record of the research done for a given legal question. Traditionally, and to meet the legal 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 legal 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 legal matter and does not present a neutral analysis.
Legal drafting creates binding legal text. It includes enacted law like statutes, rule and regulations; contracts private and public ; personal legal documents like wills and trusts; and public legal documents like notices and instructions. Legal drafting requires no legal authority citation and generally is written without a stylised voice. In writing an objective analysis or a persuasive document, including a memorandum or brief, lawyers write under the same plagiarism rules applicable to most other writers,  with additional ethical implications for presenting copied materials as original.
Plagiarism is strictly prohibited in academic work, especially in law review articles, seminar papers, and similar writings intended to reflect the author's original thoughts. The drafting of legal documents such as contracts is different as, unlike in most other legal writing categories, it is common to use language and clauses that are derived from form books , legal opinions and other documents without attribution.