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Sophia Blake, Ben Carver, Caroline Hecker, David Lorenzo

ENGL 297

18 April 2018

Final Draft

Act I: Once upon a midnight dreary[1]

Legal writing follows a formula-- or as technical communicators would call it: a genre. In the
field of law, it is essential to be aware of this genre in order to be understood when writing legal
documents and to understand when analyzing them. However, this genre, and its many elements,
has been criticized for being too technical and obscure. This report identifies and defines the
genre of legal writing, including its characteristics, history, persuasive elements, and then it
discusses its evolvement. Our conclusions are drawn from outside research relating to legal
writing, our direct exposure to legal documents, and predominantly from the insight provided by
our research subject, Judge - - - -.

Through this report we have probed connections between the legal field and technical writing. In
analyzing the genre of legal writing, we have determined what elements are inherent to legal
writing, how these elements are used and viewed, and how this genre works to persuade an
audience. As a result, our team has found the legal writing genre to receive much critique over its
style. Given its jargon, unique formula, and often confusing elements, some legal actors have
manifested movements to challenge and improve it. This report examines the attempts to
challenge the legal writing genre in order to make it easier for the general public to understand; it
is possible to stay professional while channeling creative pieces as well.

Act II: Tis some visitor[2]

Our research subject is the Honorable - - - - —a Circuit Court judge in - - - - County. He has
been presiding over the bench on the - - - - Court of Maryland for four years. Before being
appointed, Judge - - - - practiced law for twenty-six years as a criminal defense attorney and a
civil prosecutor. He routinely wrote motions for the court, legal memorandums, and briefs all
presented to judges, his main focus being persuasion. Currently, he writes judicial opinions on
the cases he hears on behalf of the - - - - Court. He also has to analyze writings from attorneys
who try cases before him. Since he has extensive experience as an attorney, he can provide
insight on what tools he used himself when writing legal memos as a defense attorney, how he
analyzes legal memorandums as a judge, and how he writes judicial opinions. As a lawyer he
would work with his firm partner as well as other legal experts. He now collaborates with other
judges. In addition, he relies on reading comprehension skills and his expertise with the legal
writing genre to analyze judicial opinions. Without these skills, he would not have been able to
support his arguments with case law.

In order to analyze the formula of legal writing, our team did not want to learn about this practice
from just one actor in the legal field. As a result, our research involves conclusions made from
first-hand documents, supported by research already published on the genre of legal writing as
well as experience from a professional legal writer. Since Judge - - - -’s position permits more
discretion than that of a lawyer, his style used for legal writing has evolved and changed. With
the help of his knowledge and experience of the law and legal writing, his interview provided
insight relating to this genre, its elements, and what role he has played in changing it.

Act III: Data Collection/Interview

This analysis consists of analyzing real legal documents, researching the genre of legal writing,
and predominantly relying on the insight provided by our research subject, Judge - - - -, The
unique component of this ethnography is the research subject is one of our member’s fathers.
Aside from the ease of setting up an interview, and relieved stress one might have had over
researching a stranger, these circumstances provided an up-close perspective of what it means to
be a legal writer. In addition, at least two of our team members are interested in pursuing a career
in the legal field. They were able to understand common legal terms and circumstances described
by Judge - - - -. With this dynamic, our member used what she knew of her father’s work to help
direct and focus the research questions.

Our team member has seen Judge - - - - in action on the bench, has observed many court
proceedings, and has completed a legal writing course, which made it easy to establish the genre
taught within legal writing. With some background and outside research, we were able to provide
context into the history of legal writing, define the genre, and even address its rhetorical
elements. But after an interview with Judge - - - -, our analysis expands past a typical research
assignment and into an ethnography, using direct insight from his interview to examine legal
writing in the field.

Because our group already had some insight in legal writing, the interview conducted with Judge
- - - - involved some very specific questions, while others permitted more broad answers--
making the format semi-structured to ensure open-ended questions and freedom for the subject to
expand. Since lawyers and legal professionals are taught to think a certain way and focus on a
certain genre, it was important to not limit our subject to a predetermined set of questions since
he may have insight that we would not consider given his widespread experience. Since Judge - -
- - was not expected to be able to explicitly name technical communication strategies, the
interview consisted of questions relating to rhetoric without explicitly stating all the terminology
involved. However some questions were specifically directed in the direction of our analysis. For
example, having exposure to one of Judge - - - -’s more creative opinions, some questions
consisted of examining the creativity and professionalism within legal writing and how he
accomplishes this. We used our outside research of legal writing and our evaluation of legal
documents to develop an analysis of this form of technical communication.

Through this method we were able to describe the writing in a more technical sense using what
we have learned in writing classes while also using support and intuition from a real practicing
professional writer. The more casual, open-ended interview allowed for a more vulnerable
perspective of legal writing diverging from the more typical, technical analysis of this
communication.

Act IV: Background of Legal Writing

One of the unique aspects of legal writing is that its genre is heavily shaped by history. Perhaps
more than any other type of professional writing. Legal writing relies on past standards and
language to inform current work, especially in the American legal. The origins of law in America
lay in the legal codes brought to the colonies in the seventeenth century and directly descended
from the English law of the time. One peculiarity of those original English legal codes is the use
of common law, which carries over into the American legal system to this day. Common law is a
system that relies specifically on the judicial decisions of previous cases to determine the
outcome of current ones. Many other legal systems rely more on statutory law, which base a
court case specifically on arguments made concerning statutes that are on the current law books
(Epstein 12). An implication of this is that modern court cases in America will often draw on
legal decisions from hundreds of years ago, and in the process use language that has been out of
general use for a long time. For example, when giving his 2012 opinion on the affordable care
act, Supreme Court Chief Justice John Roberts cited judicial decisions from the early 1800s
concerning interstate commerce (Roberts 180). The strategies of being able to research case law
are implemented in the curriculum of law school courses. Judge - - - - distinctly remembers his
legal research courses at the University of Baltimore Law School. He describes legal research as
a learned skill. This is often why many internships in law offices and courts are offered
exclusively to law school students; they are taught how to perform the legal research necessary
to argue a case. This research may involve court opinions or statutory law. It is important to be
familiar with common precedents set in the law in order to have insight on how a case may rule.
However, some of this research requires a certain amount of knowledge that comes from
extensive experience with cases and exposure to legal jargon.

The continued reliance on what is often isolated language in the legal field poses particular
problems for technical communication in the legal field. As understanding the law and legal
writing require knowledge of more and more esoteric language, lawyers will further play the part
of translator and technical communicator. There has been some movement to update the genre,
but change has been slow and the law will continue to need clarification by insiders of legal
culture well into the future.

This movement however, has gained traction, so that legal writing can be more understood
among laypersons. Since most legal decisions and case precedent affect all citizens, some feel it
is important to make legal writing easier to understand without needing a law degree. Judge - - -
- himself agrees with this movement and actively takes a role in trying to clarify the language. To
him, “legal writing is not just for the lawyers and judges, but for their clients as well.”
(Interview)

People should know what law is being decided and how it will impact their daily lives. For him,
it is easy to make legal writing more understandable. Whenever he states a principle of law that
may be only understood among legal actors, he will provide further explanation in plain English.
For example, the term hearsay is standard in the legal field. However, instead of just citing
hearsay, he will explain that perhaps, “the court did not consider evidence because it was a
statement made by the individual who was not in court--” a simple definition of hearsay
(Interview). It is the hope that other legal writers will begin to follow this example, and some
have in more creative ways, as you will see in later on.
Act V: What is Legal Writing?

Solving Problems in Technical Communication describes genre as a social action. It is used to
“fulfill a specific type of purpose within a particular, recognizable, and recurring situation”
(Henze, pg. 338). When it comes to trial law, although facts may change, the format of a case
does not and legal documents express that. Judge - - - - states that all legal documents follow a
genre and that “briefs [by lawyers especially] are very much like the formulated structure.”

For the purposes of this paper, an understanding of the structure of judicial opinions and legal
briefs is an important stepping-stone for the comprehensive analysis of legal writing. Judge - - - -
follows this rule to a tee, which some may see as a “cookie-cutter approach” (Henze, pg. 338).
His first rule when writing legal opinions is to state the overall decision on the case. He then lays
out the facts, and supports his decision with case law and a legal analysis. Court decisions are for
the public to understand the precedent that has been set. This is why Judge - - - - tries to explain
his decisions in colloquial English. Not only that, but he challenges the professional style of legal
documents by implementing creative tools that we will discuss later. The formulation of an
opinion is vital, as the author must completely develop the explanation of the law, the decision,
and the method the courts took to reach this decision.

In addition, the facts must be stated meticulously because one detail could change the entire
outcome of a case. Judge Hecker finds himself frequently citing, “facts matter” and they really
do. In one of his opinions, Judge - - - - thoroughly explains the case facts, beginning with
introducing the two parties and establishing each of their roles in this case.

The next step in a legal argument is a discussion of legal principles. Legal principles require
brief explanation followed by deep analysis. Some opinions can spend pages upon pages
describing the use of one legal principle. This is the section of the opinion where the author must
know how to effectively convey the legal principles, how they apply to this issue, and showcase
their legal style of writing. As Judge - - - - mentioned in his interview, this style of writing
becomes so ingrained in experienced attorneys and legal practitioners that it is “practically
second nature to [him] now.” Every law school student is still taught the genre of a legal
argument. But once a person starts writing them repetitively, the formula presents less of a
check-list and more of habit (Interview).
After a thorough analysis of the legal principles and applying those principles to the case at hand,
Judge - - - - gives a succinct conclusion explaining the decision. The same type of structural
format is used for legal briefs as well as we discovered through our interview with Judge - - - -.
Judicial opinions however, are meant to be less persuasive and more informative. Although a
judge still has to present a well-argued and logical analysis, the decision is made and does not
rely upon a second opinion to be decided. The structure of legal opinions is the same formula
used in legal briefs, where a briefs’ main purpose is to persuade a court-- here is where rhetoric
comes in.

Act VI: Rhetoric

Aristotle defines rhetoric as “an ability, in each particular case, to see the available means of
persuasion”(On Rhetoric, Aristotle). His study and work conducted by other sophists and orators
like Quintillian, Cicero or Gorgias helped to codify five different “canons” of rhetoric: Invention,
Arrangement, Style, Memory, and Delivery. Of these, our analysis of legal writing will fall under
the lense of invention and arrangement, as well as a mode of persuasion known as ethos.
Invention is the process of coming up or brainstorming material for a document; it is the
planning stage. In legal writing, law school students may find themselves exercising invention
more than very practiced attorneys or legal professionals, since it eventually may feel natural to
them like it does for Judge - - - -. The genre of legal writing takes practice as it has a very
particular structure essential to being successful in a case. Judge - - - - advises that one’s
arguments “should be explained in a concise manner. If it has to be written multiple ways for it
to make sense, probably isn’t a good argument.” Forming an outline of one’s text may be helpful
in the invention stage—which could also include setting up the arrangement of a paper.

The canon of arrangement focuses on when something will be said or where something will be
written. This is essential in legal writing. In this case, all legal writing follows the same pattern
of arrangement since they have the same structure. While there may seem to be no rhetoric in the
arrangement of a paper, Judge - - - - reminds us that, “the most important thing to keep in mind is
the argument has to make sense, it has to be logical…so it’s not seen as something ridiculous.”
Setting up the argument well is half the battle in a legal document; it has to be logical.

Another one of Aristotle’s main tenets is establishing credibility, or ethos. Many in the legal field
agree that creating credibility is vital to one’s argument, Judge - - - - is no different. As
discussed, lawyers often write to inform the public of their decision, while lawyers must try their
case in front of the court-- this requires more persuasion on their part. Some ways to create ethos
within the art of rhetoric or the art of persuasion is to establish respect for the other side by
acknowledging their argument. Judge - - - - pleads that this is crucial for attorneys if they want a
judge to respect their case or argument. A lawyer “gains more credibility with the reader if s/he
does not avoid the other side’s argument.” It is more respectable to face their argument head on
and address it with a counter. His advice is to “always make an argument,” but also make sure
the argument logically makes sense, another element that most rhetors would suggest in order to
achieve ethos. Rhetoric is an important tool lawyers should utilize in order to successfully argue
a case or inform the public of an opinion. Judge - - - - and others in the field think one can
establish credibility and professionalism and still present a creative and interesting writing piece.

Act VII: A Creative Twist on Legal Writing

It is important that lawyers and judges alike establish credibility. The legal field is one of the
oldest professions and it requires an element of respect, responsibility, and professionalism. It is
these reasons that the genre of legal writing has been so established and strictly followed. To
recap, Judge - - - - in simple terms describes the structure of legal documents as first addressing
the issue, summarizing relevant facts, and then making the legal argument. In a general sense this
is the genre recognized across the nation in this field. The style also requires conciseness and
preciseness, elements suggested by scholars of judicial rhetoric. Judge - - - - advises that a legal
argument should be thorough, but not repetitive. “You don’t have to hit the audience over the
head to make your point” (Interview). In addition, to Judge - - - - the most important part of a
successful legal brief or judicial opinion, or any persuasive document in legal writing is to make
a logical argument. “Nothing should be a stretch, [one must] be persuasive, but not to the extent
that the argument is forced; it should be natural” (Interview). Some would say that this is the
challenge of legal writing. One can learn the genre and the terminology and study old case
precedent, one can even be a very gifted rhetorician, but if the argument is not logical, if it does
not flow, then it is harder to win a case. This theme in writing can be tedious, and often
monotonous and dry for the reader. So we asked Judge - - - -, how can you balance
professionalism with creativity? Is it possible to be creative in such a strict genre? How can you
be succinct and clear for non-lawyers, without it sounding too dull? The answer lies within his
writing, and of others in the legal field.

In - - - - ’s judicial opinion, at a glance it appears to follow the genre of any other legal
document. However, there are some elements that do not follow the normal structure of legal
writing. In fact, there are some elements that follow the genre of screenwriting, something that is
thought to be more attractive to a layperson. He begins like any other legal document by
describing the facts. It should be stated that legal documents include headers in order to create
clear divisions within the parts of the argument-- an element of the genre some might call
“grouping.” However while most headers would label this part of the document as “The Fact
Pattern,” or “The Facts,” or “Case Background,” Judge - - - - does things a little differently. He
refers to the fact section of his opinion as “Act I (The Business Formation).” This style resonates
throughout the document as his refers to the parties in the case as characters, and the rising action
in the facts as “Storm Clouds on the Horizon.” Judge - - - - even includes a quote from
Shakespeare’s famous work The Merchant of Venice. “Putting in well-known stories and quotes
can make legal documents more interesting. It takes a little bit of the legal ease, the mystery out
of it,” says Judge - - - -. He believes that including some of these literary elements contributes to
his goal of making legal writing available for everyone and anyone. He is not the only legal
professional to do so. Judge McDonald on the Maryland Court of Appeals, or the Maryland
Supreme Court, is often praised for getting creative with opinions. (Eastman and Daily News
Service, 2013). One of his opinions he is cited saying, “Unlike the bullet or the misplaced banana
peel, the effect of toxic substances on the body is often subtle and slow, leaving cause
uncertain.” Judge McDonald follows the same philosophy that opinions should be made more
accessible and understandable to people who are not lawyers.

In another opinion, Judge Charles Moylan of the Court of Special Appeals in Maryland stretches
creative writing even further. He titles his section of facts as, “A Tale Of The Macabre,” an
Edgar Allen Poe collection of tales and continues the trend even farther in his writing: “The time
was Thursday, October 15, 2015. The place was Catonsville...The park was generally wooded
but included a pavilion with several picnic tables….” Terrence Newman v. State Of Maryland.
Here, the facts seem more like a story tale than a legal opinion. These legal writers have showed
that it is possible to maintain the elements essential to a legal document, while still making the
writing interesting to read, and more importantly, understandable.

This interesting take on legal writing challenges the boundaries of its genre. These writing styles
propose that genres can be flexible and sometimes need to be adjusted for the times. One can still
follow the structure and include rhetorical strategies used by legal professionals for generations;
it is also possible to challenge the precedent of this genre so that it becomes approachable for
everyone.

The Final Act

Legal writing has been studied, taught, and critiqued throughout its initial appearance. The genre
of legal writing in particular is published in textbooks across the nation and believed to be
essential to pursue a career in the field. Since the field affects all of our laws and decisions, it is
important to be aware of case precedent made. Given the exclusivity and specificity of legal
writing, it can be a challenge for anyone outside the field to fully understand the formula of legal
arguments and their decisions. Through analyzing its history, established structure, rhetorical
techniques, and use in the legal field, we have discussed the elements of a legal argument. With
our research subject Judge - - - -, we have been able to uncover some of the issues and criticism
legal writing faces and ways some legal writers have sought to improve it. Fortunately, with his
help, we believe it is possible to improve this genre so as to maintain its professionalism and
high esteem without excluding those of us who are not, or not yet, practicing legal professionals.
Works Cited

Aristotle, and George A. Kennedy. On Rhetoric: A Theory of Civic Discourse. New
York: Oxford University Press, 1991. Print

Eastman, Emilie, and Capital News Service. “Maryland Judge Gets Creative with Opinions.”
Maryland Daily Record, 24 Oct. 2013,
http://thedailyrecord.com/2013/10/24/Maryland-judge-gets-creative-with-opinions/.

Epstein, Richard A. 2018. "A Common Law For The First Amendment." Harvard Journal Of
Law & Public Policy 41, no. 1: 1-48.

Personal Interview. 08 April 2018.

Henze, Brent. “What Do Technical Communicators Need to Know about Genre?” Solving
Problems in Technical Communication. Chicago and London: The University of Chicago
Press, 2013.

Maryland State, Circuit Court for Carroll County. 1st Team Fitness, LLC et. Al. vs. Frank Illiano.
27 January 2015. Unpublished Opinion.

Maryland State, Court of Special Appeals. Terrence Newman v. State Of Maryland. 04 April
2018, https://www.courts.state.md.us/data/opinions/cosa/2018/2629s16.pdf. Unpublished
Opinion.

National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)

Poe, Edgar Allan. "The Raven." The Works of Edgar Allan Poe. Lit2Go Edition. 1903. Web.
http://etc.usf.edu/lit2go/147/the-works-of-edgar-allan-poe/5352/the-raven/. April 22,
2018

[1] Beginning line of Edgar Allan Poe’s The Raven

[2] Line 5 of The Raven