Transcript Document

PROFESSIONAL LEGAL WRITING IN ENGLISH:
PRINCIPLES AND PRACTICE
Autumn 2012
I. INTRODUCTION: DEFINING EFFECTIVE
LEGAL WRITING
LEGAL LANGUAGE:
FUNCTIONS, FEATURES, VARIETIES,
CHARACTERISTICS
 Functions of legal language
 to establish rights and obligations
 to distribute information
 to enable communication within the legal
profession
Universal features of legal language
 extreme precision
 obscurity, ambiguity
 archaism (structures and vocabulary)
Universal features of legal language
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formalism, ritualism, ceremonialism
wordiness, redundancy
lengthy and complex sentences (embeddings)
impersonal constructions (passive)
terms of art, technical terminology
VARIETIES OF LEGAL WRITING 1
 Academic Legal Writing
 Juridical Writing
 Legislative Writing
 (Bhatia)
VARIETIES OF LEGAL WRITING 2
 legislative language, statutory language
 language of jurisprudence, courtroom language
 language of litigation
 bureaucratic language, administrative language
VARIETIES OF LEGAL WRITING 2
 language of legal doctrine
 language of private legal documents
 language of international organizations
 lawyer-client communication
CHARACTERISTICS OF LEGAL ENGLISH
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common words with specialist meaning
old or middle English words
Latin words and phrases
words of French origin
terms of art
CHARACTERISTICS OF LEGAL ENGLISH
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argot
formal words
words and expressions with flexible meaning
extreme precision
many words where one will do
WHY LEGAL ENGLISH IS THE WAY IT IS
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Historical reasons
Jurisprudential factors
Sociological factors
Political factors
Characteristics of good legal writing
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Conciseness
Completeness
Courtesy
Clarity
Correctness
Characteristics of good legal writing
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Accurate +
Relevant +
Thorough+
Logical
Persuasive
analytical
organized
specific and concrete
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correct
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clear
GUIDELINES FOR BETTER LEGAL ENGLISH
 match function and style of the text according to
the reader
 avoid long and embedded sentences
 avoid complex structures
 use active instead of passive, if possible
GUIDELINES FOR BETTER LEGAL ENGLISH
 avoid double negatives, exceptions to exceptions
 avoid unnecessary synonym pairs (e.g., null and
void)
 use technical legal terms only when necessary,
avoid jargon
 avoid Latin and foreign words if possible
A MODEL OF THE WRITING PROCESS:
OVERVIEW
 Prewriting:
 Clarify objectives
Define reader
Establish scope
OVERVIEW
 Information:
 Collect information
Tailor it to your audience
OVERVIEW
 Organization:
 Determine organizational pattern, paragraph
topics
Compare it to the objective, reader and
information
OVERVIEW
Drafting:
 Put information into sentence form
 Put paragraphs into organizational pattern
OVERVIEW
 Revision:
 Revise globally in terms of objectives,
information, and organization.
Revise locally (one sentence at a time) for
conciseness, coherence, clarity, and
correctness.
II. LEGAL WRITING: BASIC PRINCIPLES
Categories and styles of legal writing
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balanced
persuasive
drafting legal documents
academic or journalistic texts
Cross-cultural aspects
 legal concepts in different legal systems
 different approaches to drafting legal documents
 supranational legislation
Cross-cultural aspects
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History and context
Concrete versus abstract
Universalism versus particularism
Accumulative and analytic
Precision
PLAIN ENGLISH FOR LAWYERS
 Avoid over-technical terms and over-complicated
expression.
 Where possible, eliminate Latin and foreign words.
 Eliminate archaic terms.
 Eliminate legal pairs and triplets.
III. WRITING CORRECTLY: GRAMMAR AS
A VITAL TOOL FOR LAWYERS.
 Functions of grammar in Legal English
IV. WRITING EFFECTIVELY: ORGANIZING
STRUCTURE OF TEXT
EFFECTIVE WRITING: INGREDIENTS
 MAIN IDEA
 ORGANIZATION
 SUPPORTING MATERIAL
EFFECTIVE WRITING: INGREDIENTS
 EXPRESSION, WORD CHOICE AND POINT OF VIEW
 SPELLING, GRAMMAR, AND PUNCTUATION
Paragraph Organization
 Different languages, different cultures : different
approaches to structuring texts, including legal texts.
 English paragraph structure: logical and organized
 First sentence of each paragraph is called the ‘topic
sentence’.
 This tells the reader what the paragraph is about.
Paragraph Organization
 Sentences following either:
 support the topic sentence (opinion), or
 develop the topic sentence (process or
situation)
 Paragraphs may also contain sum-up sentence
V. WRITING COHESIVELY: GUIDING THE
READER; LINKING IDEAS
Connect Ideas with Care.
Language as a connector
 Connectors, language signals, transition words,
linking words, signposts, or guideposts
 Linguistics: “discourse markers”
 Discourse = text
 Marker = sign (direction)
 Connectors > coherence – natural, reasonable,
logical connection.
Connect Ideas with Care.
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Language as a connector
Result: text easier to understand
Connectors often not present in legal and official writing
Connectors help the reader
Connectors used for transition.
Transition = moving from one idea to another
Connectors link sentences and paragraphs
TEXT COHERENCE
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Repeating a Key Term or Phrase
Synonyms (!!)
Pronouns
Transitional Words
Sentence Patterns
TRANSITIONAL EXPRESSIONS
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Amplification or addition
Cause and effect; consequence or result
Comparison or analogy
Contrast or alternative
Condition or concession
TRANSITIONAL EXPRESSIONS
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Conclusion
Emphasis
Illustration or example/clarifying
Relationship in time
VI. WRITING CLEARLY: ACCURACY,
PUNCTUATION, SUMMARIZING TEXT
Professional Writing Style
 Good grammar: step 1 towards good writing.
 Communication skills vital to lawyers.
 Lawyers judged by written communication skills.
Professional Writing Style
 Professional writing skills may be inadequate, e.g.:
 Skills acquired during studies:
 may not include writing skills at all, or
 skills not appropriate to professional writing.
 Poor quality writing
Professional Writing Style
 Not easy to improve professional writing.
 Successful writing is clear, logical, factual,
concise, and persuasive.
Professional Writing Style
 Appropriate language to show causality or logic
 Replace unclear connecting words by specific
words with clear meaning
 Use affirmative language
 Avoid expletives where possible
Professional Writing Style
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Put modifiers where they belong
Variation: too much or too little
Avoid adjective buildup
Don’t shift your point of view
Punctuation Marks: Commas
 English does not use commas in the following
situations:
 Before the word that
 I trust that you will return the money I lent you.
English does not use commas
 Before the word because
 I trust him because he has always paid me in the
past.
 After the word please
 Please do not hesitate to contact me if you have
further questions.
VII. WRITING WITH PROFESSIONAL STYLE:
TECHNIQUES FOR LAWYERS
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EDITING FOR EMPHASIS: FIVE TECHNIQUES
 Technique 1: “Omit needless words”.
 Technique2: Cut sentence endings to create
emphasis.
 Technique3: Use sentence beginnings as points of
natural prominence.
 Technique4: Prefer action verbs to nominalizations.
 Technique5: Don’t trust modifiers.
SUMMARY OF ELEMENTS OF GOOD LEGAL
STYLE
 Subject-verb agreement
 Contractions: are usually out of place in legal
writing.
 Enumerations: the best method is first, second and
third.
 Legal terminology: try to avoid.
 Foreignisms: try to use a native English expression.
SUGGESTIONS FOR REVISING AND EDITING
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Read out loud.
Omit needless words.
Rely primarily on action verbs and nouns.
Check for variety in sentence structure and length.
Make a topic sentence outline.
SUGGESTIONS FOR REVISING AND
EDITING
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Transitional words and expressions?
Review visual design of text.
Is your purpose clear to the reader?
Proofread the entire document.
Ask a colleague to respond to your draft.
Revisiting some of the important rules
 Use verbs, not nouns
 Concrete, not abstract
 Active or passive? What about the agent?
 Obscurity
Specific texts
E-mail
E-mail
 convenient,
 inexpensive
 easy to use within a networked system.
But note:
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Consider your audience: what do you want?
Why are you writing?
Plan and organize ideas.
Adapt style and tone according to audience.
Never assume an e-mail is private.
...and...
 If important, follow up with fax and/or letter
 Some people do not read emails regularly
 File copies
Email etiquette
Why do we need email etiquette?
 Professionalism: using proper email language
conveys a professional image.
 Efficiency: emails that get to the point are more
effective.
 Protection from liability: staff awareness of email
risks protects your firm from costly lawsuits.
What are the etiquette rules?
Minutes of a Meeting
What are minutes?
 The function of minutes is:
 to present information and
 to deal with any problems
What should minutes contain?
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Name of group
Type of meeting
Date, place, time.
Names of attendees + apologies for absence
Approval or correction of previous minutes.
Reports of members of the group.
Each agenda item should contain:
 Summary of views expressed, attributed to speakers by
name or the offices they represent and reported accurately.
 A clear statement reporting how each issue was resolved,
agreement or not, or whether it was deferred for further
consideration.
 Your name, designation and signature as the recording
officer.
Procedure for taking minutes
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Make sure you:
Know purpose of meeting.
Know agenda items.
Know names and positions of participants.
Know how much detail is expected.
Sit near the chair.
Write up minutes immediately after meeting.
Report Writing
Layout
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Preliminary page(s)
Introduction
Body of report
Conclusions, recommendations
Acknowledgements
Appendices
Types of Reports
 Recommendation Reports
 Information Reports
 Conclusion Reports
Memorandums
What is a memo?
 Inter-departmental communication
Memo format
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Clear subject heading
Only about one subject
Clear and concise
Maximum one page.
Memo format
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Names kept brief
No addresses but maybe name of department
Lack greetings or closings.
Initialed by sender, not signed in full.
Types of memos: four types
The information or request memo.
 Present main idea
 Expand on details
 State action required
The problem solving memo
 State the problem
 Analyze it
 Make a recommendation
The persuasion memo
 The direct approach,appropriate if you think your
reader:
 is likely to agree with proposed actions
 is likely to be interested in proposals
 Start with conclusions first
 Provide specific support
The persuasion memo
 The indirect approach: appropriate if you think
your reader:
 will disagree with you
 requires some analysis
 Start with a neutral statement
 Present your case and lead to conclusions
The persuasion memo
(indirect approach)
 Start with least disagreeable points first
 Present your views last
 Present recommendations which have been
rejected before your own
 Use your best evidence last
Proposal Memo or Report
...should contain the following:
 Memo Report Reasons for writing
 Introductory paragraph outlining structure of
memo
 Subsequent paragraphs contain relevant issues +
disadvantages and advantages
 Statement on recommendations or actions to
follow
Points to remember when writing memos:
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Why are you writing? What is the key message?
What are readers’ needs?
Write subject (the key message) on subject line
Begin text by introducing subject
Follow pattern appropriate to type of memo
Proof-read / edit carefully and sign your name on the ‘from’
line
Client Letters
Professional Responsibilities -- Attorney/Client
relationship
 Duty to keep client informed
 Duty to explain the law in plain English
 Duty to discuss all relevant information
considerations (negative and positive)
 Duty of candor
 Duty to preserve client confidentiality
Form and Content: Essential features of client letter:
 opening paragraph restates client's questions +
summarizes your answer
 review relevant facts
 explain governing laws
 assess situation in light of the law + outline of
options for client to consider
 recommendations and closing paragraph
Formatting legal advice
 Heading
 Title of case
Formatting legal advice
Body (numbered paragraphs)
 Fundamental facts
 Key issues
 Main conclusions + overall opinion
 Reasons: each issue in its logical order → stating
your opinion and reasons and giving your advice.
Formatting legal advice
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Conclusion
‘Summary of advice’; ‘Summary of conclusions’.
Main points of advice in shortened form.
Signature and date.
Legal memoranda
 Elements:
 heading
 summary of important facts
 legal issues in brief
 discussion of law relevant to legal issues +
applying law to facts
 conclusion responsive to legal issues.