Legal Writing

What is Legal Writing

• Legal writing is a type of technical writing used by legislators,
lawyers, judges, and others in law

• to express legal analysis and legal rights and duties.

• Its distinguishing features include reliance on formality and

citation to authority, specialized vocabulary or jargon, and over
formality
Features of Legal Writing
• Authority- writer must back up assertions and statements with
proper reference to authority
- the authority may pertain to rules, custom or
contract, as the case may be
Features of Legal Writing
Citation - provide the experienced reader with enough
information to evaluate and retrieve the cited authorities.

What may be cited?

- legal writing ideas and/or facts incorporated in books or
articles are the subjects of citation.
- citing methods.
Vocabulary
Special words and phrase

Everyday words that when used in law have different meanings

from the everyday usage

Archaic vocabulary

Loan words and phrases from other languages

Formality
• The resort to authorities that were created long ago can lead
lawyers to follow an older and more formal style of writing.

• recent years, there has been a movement away from classical

legal writing, towards a more reader friendly and concise
method of conveying ideas
Pre-writing
• Identify your audience

• Identity your Purpose

Identify your audience

• To whom
• Level of legal expertise
• Degree of familiarity of the subject
Identify the purpose
• To inform

• To persuade

• To discover information

• To prepare a legal document

Identify the ISSUE

Time Constraints

Organizing legal Documents

Organizing legal Documents

Make an outline
• Issue
• Rule
• Analysis
• Conclusion
Organizing legal Documents

Make an outline
• Issue
• Rule (laws applicable, primary and secondary sources)
• Analysis
• Conclusion
Types of Legal Document
•Letters
•Internal memoranda
•Operative documents and forms
•Pleadings
•Motions
•Briefs
Types of writing
• Predictive writing
•Persuasive writing
Persuasive writing
• Persuasion in general is an attempt to shape another„s attitude
about a particular matter
• persuasion in legal writing involves a balance between fervent
advocacy and predictive legal analysis
How to achieve balance
1. Know your purpose and know your audience.
• your purpose is to persuade.
• represent facts and arguments in a light most favorable to your
client - even if they are objectively unfavorable to your client.
How to achieve balance
2. Word choice- changing a word would convey a different tone

The defendant shouted viciously at the alleged victim, ―I will

hurt you.
The defendant stated to the alleged victim, ―I will hurt you
 Activity
2. Word choice

The police officer demanded that the defendant open the trunk of
her car.

The attorney signed the contract.

Sharp rocks in hand, the plaintiff charged the defendant

 Activity

The victim remembers seeing the defendant outside the

convenience store on the night of the robbery

The police officers looked through the defendant„s room

The lawyer seemed to agree to the representation. ( breach of

contract of agency.)
 Subtlety
• the art of masking your strategy to a certain extent, while still
guiding your reader in the direction you desire

• allow your reader to believe he or she reached a proper

conclusion on his or her own - rather than the conclusion being
dictated to him or her.
Active versus Passive Verbs
• Active verb sentence structure: Actor/Subject → Action Verb →
Object.
For example, ―The defendant kicked the complainant.

• Passive verb sentence structure: Object → Passive Verb →

Actor/Subject.
For example, ―The complainant was kicked by the defendant.
Active verb sentence structure
• Structure tends to connect the actor to the action
• an advocate for the complainant would want to use the active
verb sentence structure.
passive verb sentence structure
• tends to distance the actor from the action
• an advocate for the defendant would want to use the passive
verb sentence structure
 ACTIVITY – active passive verb
• Rewrite the following sentences as instructed, using the
techniques discussed above:
• Sentence 1: The death of the victim allegedly resulted from
repeated blows to the head by the defendant. Rewrite as though
you were advocating against the defendant.
• Sentence 2: The defendant allegedly smashed her car into the
pedestrian, causing permanent damage to the victim. Rewrite as
though you were advocating for the defendant.
Conclusive statement vs Opinion
statement
• conclusive statement, as opposed to an opinion statement, is
more forceful, and therefore leads to stronger advocacy

• conclusive statements may be effective as thesis or topic

sentences
Affirmative versus Negative Statements
• Affirmative statement- one that states clearly the position you
have, and the reasons why your position is correct.

• Negative statement- one that only denies the correctness of your

opponent„s position
• The government incorrectly contends that the wiretap tapes that
are obtained from taping Mr. A‟s home telephone are
admissible as evidence during trial.

• The wiretap tapes the government obtained from taping Mr.

Hart„s home telephone are not admissible at trial
 ACTIVITY
Re-write the following passages to change them from an objective
statement about the law, to one that supports a hypothetical
client/defendant (keeping in mind what you have learned
above).
• a) In a case involving burglary, the prosecution must establish,
beyond reasonable doubt, that the defendant entered a dwelling
at night with the intent to commit a felony.
• b) Statements made to the police by an arrested suspect after
invoking the right to be provided an attorney by the state are
not admissible, unless the client clearly, unequivocally, and
intentionally waives his or her right
Parallelism & Juxtaposition
• points out two conflicting or inconsistent statements or theories

• persuasive tactic to suggest to a reader or adjudicator that one

position is inconsistent, and allow him or her to come to the
conclusion on his or her own.
De-emphasis of Negative Information
The following words and word phrases are commonly used for
this purpose:
• However…
• Even though…
• Despite the fact…
• Regardless…
• Notwithstanding…
• Still…
 Letter Writing
three basic types of letters:

the client letter

settlement letter

settlement letter
 Client letter
The client letter is used:

1. inform your client of your legal opinion on a particular

question

2. offer any advice you have to offer

 Client letter

for the purpose of allowing your client to make an informed

legal decision – WRITTEN FOR NON-LEGAL EXPERTS.

Still needs to be professional and objective, and cater to this

characteristic of the reader
 FORMAT
1. Heading
2. Introductory paragraph
3. The statement of the issue
4. Opinion
5. Summary of the facts, explanation
6. Advice
7. Concluding paragraph
8. and warnings
The Introductory Paragraph and
Statement of the Issue
• The introductory paragraph is important

states the issue or objective of the letter

Some substantive information should often be included as

well.
Good News should be written as part of the Introductory
paragraph.
• Example 1: As you requested, I am writing in response to your
previous inquiry. I have concluded my research and have reached a
conclusion. As far as the enforceability of the contract you singed
with the Joe„s BBQ House, it is my belief that the contract is not
enforceable.

• Example 2: I have researched the question of the enforceability of the

contract you entered into with Joe„s BBQ House, and I think you will
be pleased with the results. It is my belief that the contract is
enforceable because the company„s representative that offered and
signed the contract possessed apparent authority
ACTIVITY- MAKE AN INTRODUCTORY PARAGRAPH

Before they married in 2000, Nonoy and Daday signed a

marriage settlement wherein they agreed that their property
relations as husband and wife would be governed by the
conjugal partnership of gains. While the marriage was subsisting,
they acquired a parcel of land using conjugal funds. The Register
of Deeds issued a transfer certificate of title over the said land in
the name of “Nonoy, married to Daday”.
Nonoy sold the parcel of land to Barby without Daday‟s consent.
Daday was not aware of the sale and did not sign the contract of
sale. A year after Nonoy and Barby signed the contract of sale,
Daday died. When the children of Nonoy and Daday learned
about the sale to Barby, they questioned its validity since Daday
had not consented to the sale.
Demand Letters and Settlement Letters
Letters to adversaries differ from client letters in tone and
purpose but are similar in format.

two basic types of letters to opponents:

the demand letter and the settlement letter.

Purpose
• Demand letter-
a. to assert your client„s legal position
b. demand that opponent take a particular course of action
c. cease from a particular action
Purpose
• Settlement letter-
a. assert your client„s legal position
b. offer a settlement or request settlement negotiations
TONE
• What to AVOID?
a. appear to “understanding” of your opponent„s position, out
of a desire to seem fair and reasonable
b. the letter should not insult, dismiss, or belittle.
HOW TO PROPERLY DO IT?
• BALANCE
a. state your client„s position clearly, affirmatively, and
professionally
EXAMPLE 1
• Your client has blatantly violated my client„s right to prepare
derivative works. You should know by now that Ethiopian
intellectual property law is similar to other jurisdictions, in
letter and in policy. It is incredible that you could somehow
ignore those considerations and come to some bizarre
conclusion to the contrary. My client is rightly angry, and
demands compensation for the injury. Otherwise, we would be
happy to see you in court.
EXAMPLE 2
• I can agree that Ethiopian intellectual property law has not been
entirely clarified by the courts as to what constitutes a
‗derivative work„ for the purpose of establishing copyright
infringement. However, given the similarity of the Ethiopian
copyright law to well-settled definitions in other jurisdictions,
and given other policy considerations, I respectfully request
that you consider our position. Thus, I believe that you would
agree that we are reasonable in requesting that your client be
held responsible for his actions that may constitute copyright
infringement.
EXAMPLE 3
• Your client is liable to my client for a copyright infringement.
Under Ethiopian intellectual property law, the right to prepare
derivative works rests on the copyright holder. As my client is
the copyright holder, your client has infringed his rights. This
infringement resulted in monetary injury to my client, which
we expect your client to rectify.
EXAMPLE 3
• Your client is liable to my client for a copyright infringement.
Under Ethiopian intellectual property law, the right to prepare
derivative works rests on the copyright holder. As my client is
the copyright holder, your client has infringed his rights. This
infringement resulted in monetary injury to my client, which
we expect your client to rectify.
FORMAT
• introductory paragraph
• statement of facts,
• discussion of the favorable law and how it relates to the facts
• concluding statements and demands or offer of settlement
introductory paragraph

• identifies the attorney„s representative capacity;

• states the issue at hand;
• states the client„s demands or offer of settlement;
• explicitly states that the letter is a confidential communication
that cannot be used as evidence.