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5 Principle Legal Writing

5 Principle Legal Writing

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Published by Nitaino Ketaurie El

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Published by: Nitaino Ketaurie El on Nov 13, 2010
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LAWYERS ARE
professional writers. That’s afact. But most lawyers don’t realize it. When Iteach legal writing seminars, I routinely ask theparticipants, “How many of you are profession-al writers?” How many raise their hands?Usually, about 20 percent. We lawyers simplydo not view ourselves as professional writers.Yet we get paid to write all the time.Dozens of my former students have told methat they had no idea how much writing theywould be doing in practice. Many say, “It’s all Ido: write.” For example, in
The Lawyer’s Guide toWriting Well,
Goldstein and Lieberman estimatethat an average law firm publishes the equiva-lent of 20 newspapers daily. Tom Goldstein & Jethro K. Lieberman,
The Lawyer’s Guide to
11
Wayne Schiess
is a lecturer in legal writing at The University of Texas School of Law. He is author of
Writing for the Legal Audience,
and is associate editor of
Scribes Journal of Legal Writing.
Wayne Schiess
Any lawyer can improve his or her writing—and probably needs to.
The Five Principlesof Legal Writing
From the June 2003 issue of ALI-ABA's The Practical Lawyer 
 
Writing Well,
75 (U. Cal. Press 1989). And noticethat I used the word “publishes.” That’s whatyou’re doing when you prepare and issue awritten document: publishing. If you’re in the business of publishing written documents,you’re a professional writer.Professional writers take writing seriously,and lawyers should, too. Too often, though,lawyers are so focused on getting the substan-tive law right that professional writing takes a back seat. This article aims to show how tomake professional writing as important as sub-stantive law. In this article, I’ll discuss five prin-ciples that professional writers live by and thatlawyers can live by, too. As you read them,think of yourself as someone who gets paid towrite: a professional writer.
PRINCIPLE NUMBER ONE: USE WRITINGRESOURCES
Print journalists—who are un-doubtedly professional writers—have stylemanuals on their desks. Book editors—all ofwhom are writing professionals—have dictio-naries and usage manuals handy. And technicalwriters of all sorts, from those who write corpo-rate newsletters, to those who write informativemagazine articles, to those who publish instruc-tion manuals—all of them would not presumeto work without access to guides, references,and writing sources.But lawyers do it all the time. In fact, it’s themost common symptom of the failure to recog-nize that you are a professional writer: not con-sulting writing sources. Practitioners couldeliminate many mistakes if they would consultthe right sources. But most lawyers don’t havethe right sources and many don’t know whatthe right sources are. Why? It’s hard to say, butI’ll offer three reasons:First, legal writing is not emphasized in lawschools. Most law schools give scant time tolegal analysis and persuasive writing. Most donot spend much if any time on letters, motions,and complaints. And even fewer have coursesin legal drafting. If law schools don’t cover thesubject, how would law students know the rel-evant sources? They wouldn’t and don’t;Second, much of legal writing relies heavilyon forms. If you copy a form, with minorchanges, there is little need to consult a writingguide because you won’t be changing the writ-ing in the form. Just re-create the document inthe same form that it was created before. Notmuch room for writing improvement there, sonot much need for writing sources;Third, lawyers are bright, successful peoplewhose writing skills are in the upper percentilesof writing skills nationwide. So lawyers don’tthink they need to consult writing sources be-cause they can already write well. Or, at least,they can write well enough. I call this the “goodenough” syndrome. “My writing is goodenough, so why spend time studying writing ortrying to improve? I’m fine.”But isn’t a lot of legal writing just plain bad?Yes. So how can lawyers say that they are goodwriters? Well, I think that most lawyers proba- bly are good writers, or at least above average.But lawyers happen to be in a profession that iswriting-intensive; a profession that, unbe-knownst to its naive applicants, demands goodwriting or even great writing. Journalists aregenerally good writers, but everyone expectsthem to be; it’s part of the job. Grocers, for ex-ample, are generally not known to be goodwriters, but everyone knows that great writingis not expected of grocers. Lawyers, on the otherhand, often go into the profession unaware ofhow crucial good writing is to the field. So tomake your writing better than “good enough,”know and use writing sources. I can suggestsome excellent books in two categories.
Legal Writing References
These are books that you don’t read straightthrough; they’re for looking things up. Keep12
The Practical LawyerJune 2003
 
Legal Writing Principles
13them near your desk and consult them everytime you have a question:Bryan A. Garner,
 ADictionary of Modern LegalUsage
(Oxford U. Press, 2d ed. 1995);Bryan A. Garner,
The Redbook: AManual onLegal Style
(West Group 2002).
General Legal Writing Style Guides
Do read these books straight through; all ofthem are excellent guides to contemporary legalwriting style: how to phrase clear sentences,how to eliminate legalistic tone, and how toavoid common grammar and punctuationproblems:Richard C. Wydick,
Plain English for Lawyers
(Carolina Academic Press, 4th ed. 1998);Terri LeClercq,
Expert Legal Writing
(U. Tex.Press 1995);Tom Goldstein & Jethro K. Lieberman,
TheLawyer’s Guide to Writing Well
(U. Cal. Press, 2ded. 2002).So please think of yourself as a professionalwriter, because you are one. Remember thatprofessional writers stay up on their craft. Andwhen professional writers have a questionabout punctuation, or word usage, or writingstyle, they don’t guess. They look it up. Youshould, too.
PRINCIPLE NUMBER TWO: ADAPT TOYOUR AUDIENCE
I believe that the bestway to improve legal writing is to teach lawyersto focus more carefully on the audience: thosewho must read what we write. Too often welawyers churn out documents in a mindless,rote fashion, without thinking much about thepeople who will have to read them:If we are writing a motion, we create a docu-ment that looks like a motion—or like all theother motions we’ve seen—and we do notmuch care whether it will be easy to read andunderstand;If we are drafting a contract, we drag out aform and duplicate it, not stopping to considerif the details of this form are right for our trans-action; andIf we are writing a letter, we make sure itsounds lawyerly, whether we are writing to aclient, to opposing counsel, or to a supervisor.If you realize that you are one of the many whowrites legal documents in a robot-like, un-changing style, stop it. Think about your audi-ence and adapt. In legal writing, lawyers face a broad and diverse range of audiences that fallinto two general categories—primary and sec-ondary—and into several specific types.
Primary and Secondary Audiences
For every document you produce, there is aprimary audience and a secondary audience.The primary audience is the audience towhom the document is addressed. For letters,it’s the intended recipient. For a discovery doc-ument, it’s the opposing counsel. For a con-tract, it’s the other party or the other party’slawyer. The secondary audience is anyone elsewho might see the document. Typically, thesecondary audience is judge, jury, supervisor,colleague, or client. Keeping the different audi-ences in mind will help you focus your writingand strengthen it.
The Variety of Audiences
More important than the difference betweenthe secondary and primary audiences is thesheer number and variety of audiences that youmust consider when writing. Take litigationpractice, for example. Here are some typical lit-igation documents and the possible audiences:
DocumentPrimary AudienceSecondary Audience
ComplaintTrial judge andThe opposing party,opposing counsel.your supervisor, yourclient, and, if the casewere appealed, ap-pellate judges.

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