Transcript Effective legal writing

University of Lapland
Legal writing skills
Spring 2013
SHORT RÉSUMÉ:
Christopher Goddard
Contact information:
Christopher Goddard
 Office email: [email protected]
 Telephone: mobile + 371-28376208
Background experience: law, languages, training
 1965 - 1983 English lawyer.
 International training projects in Central and
Eastern Europe.
 Consultant at International Criminal Court
 EU legal writing/legal linguistics expert
 CLE (CPD)courses
+ from 1999 to date
Riga Graduate School of Law
responsible : legal writing, reasoning, study skills
Courses and programmes include:
 Master’s in International and EU Law
 Continuing Professional Development for
lawyers, judges, translators and interpreters,
civil servants
 Legal linguistics programme for lawyers and
translators from autumn 2007
Other Activities in law and linguistics
 Own UK-based company
Activities
Editing and proof-reading
legal English texts prepared
by native and non-native
speakers of English.
Activities
 Revising legal English texts translated into
English from French, German, and Russian by
native and non-native speakers of English.
 Translating legal texts into English from French,
Russian and German.
Clients and customers include
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international law firms
universities
NGOs
banks
authors of books and articles
governments
International Criminal Court
EU
British Council
Relevant Education and Training
 Doctoral studies (legal linguistics) at University of
Lapland (Emeritus Professor Heikki Mattila).
 Law Society of England and Wales: Solicitors’ Qualifying
Exams (= bachelor’s degree) 1971.
 (UK) Master's Degree in Education (M.Ed.) (Sheffield
University) (2002)
 (UK) Institute of Linguists' Post-Graduate Diploma in
Translation(1986)
The legal mind
English
 international language of legal communication
Law: an area where...
 English assumes a
 high profile as a
 global common language in
 inter-cultural contexts.
Supranational bodies
e.g., UN, NATO, EU, WTO)
 increase in legal documentation using English as a
common language
 e.g., legislation, regulations, agreements
Legal English
 medium for international commerce
 in-house company language
 mergers and acquisitions
 international commercial contracts
Implies need for meaningful communication of information and
ideas:
 from a wide variety of source cultures, languages,
and legal systems...
 through the medium of English by lawyers and
others...
for target audiences :
 ...whose mother tongue may not be English...
and
 whose legal systems and cultures may not easily
correspond with those of the source or the
medium
English:
 a tool for mutual understanding
(Crystal 1997)
 a medium and subject of global misunderstanding
(Spichtinger 2000)
The new international lawyer operates
 beyond national contexts
 with different legal regimes
 with different cultures
 with foreign individuals/institutions
The new international lawyer...
 brings a legal perspective that transcends the
national and cultural perspective
 offers interdisciplinary background (e.g.,
economics, business, political science)
The new international lawyer
 not the traditional model
 (e.g. treaties, borders, fishing rights at sea)
Legal English in EU contexts
 English the de facto language of most EU legal
drafting
 Much work in English by non-native speakers
 Much new terminology, e.g. definitions in
directives, uses English as source language
Structure of Texts
Structure of Texts
 Ideas built up from sentence to paragraph to whole text;
 Ideas and concepts developed from parts to whole;
 Argument developed by amplification (ie. proposition
stated in preliminary form, then expanded);
 Argument developed by analogy (ie. by comparison with
similar situation), or illustration (ie. exposition by
examples);
 Argument usually either inductive or deductive.
Inductive argument...
 begins with specific facts, and uses these to
establish a conclusion
Deductive argument...
 puts forward a general proposition, and then
proceeds to justify it.
Structure: main aspects
 Development of ideas in sentences and
paragraphs;
 Development of the argument.
Reading Texts
Ways of Reading Texts: Skim Reading
 For quick overview of text. We may
 be looking for something specific;
 want a general idea before putting effort into
close reading;
 have read the text thoroughly already, and want
to recall main points.
Skim reading strategies
 Read opening paragraph and conclusion.
 Read first and last sentence of remaining
paragraphs for an idea of main points.
 Look for words and phrases that act as sign posts
to main ideas or messages in text, or giving clues to
specific information.
 Use highlighting to mark items you want to re-read
or refer to later.
Specific Reading
 If looking for specific information
 skim read, locate, mark and then return to close
reading
 reference materials as you proceed
In-Depth Reading
 Most essential of all reading skills
 Read text thoroughly to comprehend the ideas and
arguments it contains
 You may need to read certain sections of a difficult
text more than once
In-Depth Reading
 Read opening paragraphs and conclusion first. This helps
digest intention and conclusion of the writer prior to closer
reading of the text;
 Go back to beginning, and read through whole text,
marking out and noting:
 key words and phrases;
 ideas, facts, and data you think are important;
 structure of argument.
 Ensure you understand main ideas and arguments, and
overall message of text.
Critical reading
 Question and judge merit and worth of the
information in text
 Inter-related processes:
 Interpretation
 Analysis
 Synthesis
 Evaluation
Critical reading: Interpretation
 What conclusions can be drawn about the various
messages the text contains?
 Sometimes, more than one possible interpretation
 Go for best, or most likely meaning
 Interpreting also often involves analysis and
synthesis.
Critical reading: Analysis
 How ideas and messages in a text fit together to create
overall meaning. Involves identifying:
 assumptions (hidden values);
 structure of argument (development and sequence of
ideas, relationship between ideas, whether argument
inductive or deductive);
 relationship between evidence/data and argument (does
evidence support + illustrate argument, does it support
conclusions?).
Critical reading: Synthesis
 Draws together results of analysis into conclusion
on which to base interpretation or evaluation.
Critical reading: Evaluation
 Establishing worth or merit of a text
 Involves interpretation, analysis, and synthesis
 Evaluation attempts to look at ideas and messages in a
broader context, e.g."this is a good argument, but is it
worth anything, does it have any merit?”
 We use knowledge of the subject or field, or of competing
arguments, to establish the merit or worth of the
argument.
Judges’ response to changes in public policy
Improving Your Reading Strategies
 Three stages;
 planning for reading
 reading
 reflection on reading
Planning for Reading
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Questions:
What do I want from reading this text?
What ideas I need to take into reading?
Why has this text been selected?
Can I subdivide the text into sections?
What does skim reading tell me?
Reading
 Identify starting point of argument - usually first or
second paragraph.
 Look for assumptions, or start of particular
method of argument (inductive or deductive).
 Identify important, or central, ideas (or stated
principles) in paragraphs as you read them. If more
than one, try to work out which is the most
important or central.
Reading
 Determine whether ideas are connected or
developed.
 Examine consistency of argument.
 Evaluate evidence in support of ideas or principles,
and decide whether evidence is relevant,
persuasive, and convincing.
 Assess whether conclusions justified on the basis
of the evidence.
Reading
 Then make brief notes on:
 your understanding of the text;
 your preliminary response to ideas and
arguments presented.
Reflection
 Unanswered questions about meaning of text? If so, skim
read or read specific sections again.
 Assumptions: have you recognised them all?
 Do you understand how each section of the text is related?
 Can you make connections between the text and other
material you have read?
 Are your conclusions sound and unbiased? Are they limited
or unlimited?
What’s in a name?
Drafting Legal Documentation:
Universal principles
Christopher Goddard/Giorgi Jokhadze
BENEFITS OF GOOD LEGAL WRITING
 Law differs from other disciplines, in that:
 it consists entirely of abstract concepts, and
 it requires words to express those concepts.
 Therefore, language is the main tool that lawyers
need to do their job, or even
 Language IS the law, and the law IS language.
BENEFITS OF GOOD LEGAL WRITING
 This means that lawyers need to be able to control
language in order to be effective professionals.
 In other words, lawyers need to be effective in the
way they use language.
 Therefore, effective legal writing is an essential
ingredient to being a complete lawyer.
BENEFITS OF GOOD LEGAL WRITING
 The main measure of legal skills lies in the quality of
legal writing.
 Good grammar is only the first step towards
effective legal writing.
 To write effectively, lawyers have to communicate
clearly.
 However, legal message are often complex.
BENEFITS OF GOOD LEGAL WRITING
 Thus, the legal writer needs to communicate legal
messages:
 in terms that readers can understand, and
 in the way the writer intends the reader to
understand them.
VARIETIES OF LEGAL WRITING
 Legislative (normative) language: statutes, conventions,
treaties, legal drafting.
 Language of jurisprudence, courtroom language:
language used by courts and judges, court decisions,
judgments.
 Language of litigation: language used by lawyers in court
cases.
 Bureaucratic or administrative language: language of
administrative documents.
VARIETIES OF LEGAL WRITING
 Language of legal doctrine: academic writing, legal
textbooks.
 Language of private legal documents: contracts, insurance
policies, testaments.
 Language of international organizations: international or
multilingual organizations, “EU language”, “eurospeak”,
“UN-speak”.
 lawyer-client communication: consultations, putting
client’s concrete situation in legal context.
Why may professional legal writing skills be
inadequate?
 Skills acquired during studies:
 may not include writing skills at all, or
 may consist of writing skills inappropriate to
professional legal writing.
 Additionally, much professional legal writing is
itself of poor quality.
How to improve legal writing?
Effective legal writing...
 ...is clear, logical, factual, concise, and persuasive
 ...demonstrates clearly how the writer reaches
conclusions
 NOT a mere summary or review of facts and
opinions
 Effective legal writing is analytical
Characteristics of good legal writing I
 Concise: as few words as possible
 Complete: all information for reader to respond or
act
 Courteous: reader-friendly
 Clear: easy to understand
 Correct: checked for accuracy
Categories and styles of legal writing
 Balanced analysis of legal problem or issue.
E.g.,inter-office memoranda, letters to clients.
 Persuasive. E.g., court pleadings
 Legal documents, e.g., contracts, wills
 Academic or journalistic texts, e.g. case reports
Legal writing does not simply “happen”
 Legal writing occurs in various contexts
 Legal writing reflects intentions
 Correct language vital to fulfill intention
But...
 Desire to avoid ambiguity may lead to too many
words (e.g., to cover all possible situations), overlong sentences, and “lawyers’ jargon”
 So, many legal texts are understandable only to
lawyers
On the other hand ...
 ... legal texts should be professional, and not too
informal
 Effective legal writing:
 avoids unnecessary complexity
 uses language that simplifies and clarifies
 presents a professional image.
WRITING CORRECTLY: GRAMMAR AND
MEANING
 Grammatical correctness:
 is essential to effective presentation of text
 goes hand in hand with logical thinking
But effective writing is more than simple
grammatical correctness
 Organization, style and analysis are also essential
 The art of persuasion:
 Logos +
 Ethos +
 Pathos
= rhetoric
Useful suggestions
 Exclude words, especially adjectives, which
unnecessarily burden sentences
 Exclude arguments not necessary for final version
of document
 Group arguments around norms or facts
EFFECTIVE WRITING: INGREDIENTS
MAIN IDEA
Clear, manageable idea or argument, organizing material around it.
Includes choosing secondary ideas that support and strengthen the
main idea.
Checkpoints
 Main idea/aim narrow enough for meaningful discussion.
 Main idea clearly stated, normally at the beginning.
 All secondary ideas relate clearly to the main idea.
EFFECTIVE WRITING: INGREDIENTS
ORGANIZATION
Coherent arrangement of material. Involves keeping reader oriented
to main and secondary ideas. Good organization is logical and
orderly. It guides the reader between divisions of the material.
Checkpoints
 Introduction orients reader to main idea and line of reasoning.
 Material arranged in a logical and coherent sequence; secondary
ideas effectively identified.
 Transitions clear and helpful.
 Conclusion or closing summarizes the argument, emphasizes main
idea, and leaves reader with a sense of completion.
EFFECTIVE WRITING: INGREDIENTS
SUPPORTING MATERIAL
Explanations, examples, statistics, and quotations make
ideas and information meaningful and memorable for
reader. In exposition, the role of supporting material is to
clarify; in argument, to persuade.
Checkpoints
 Examples are relevant, specific, detailed, sufficient, and
persuasive.
 Quotations support the argument.
EFFECTIVE WRITING: INGREDIENTS
EXPRESSION, WORD CHOICE AND POINT OF VIEW
Language clear, specific, accurate, and appropriate to
audience, purpose, and material. Variety in sentence
structure and length creates emphasis.
 Word choice clear, specific, accurate, unassuming, free
of clichés and misused jargon.
 Sentences free of wordiness and ambiguity.
EFFECTIVE WRITING: INGREDIENTS
SPELLING, GRAMMAR, AND PUNCTUATION
Matters only when wrong.
Checkpoints
 Spelling, including technical terms and proper names, is
correct.
 Correct words used to convey intended meaning.
 Generally accepted rules of grammar and syntax are
followed.
Paragraph Organization
 The first sentence of each paragraph is called the ‘topic
sentence’
 The sentences that follow in the body of the paragraph
either:
 support the statement made in the topic sentence, if the
writer is expressing an opinion, or
 elaborate on (develop) the topic sentence if the writer is
describing a process or situation.
 A paragraph may also contain a sum-up or concluding
sentence.
EXAMPLE
 Legal argumentation requires a systematic, disciplined
approach. Failure to connect ideas, logical fallacies, poor
organization, and other features of substance and
presentation, suggest to the reader that both the argument
and the research behind it are professionally incompetent.
The negative effects from such an impression may range
from simple lack of professional effectiveness, to loss of
status and reputation.
EXAMPLE
 In the world of multinational law firms, a common feature
is a merger between a larger foreign firm with a smaller
local law practice. Often it is a question of a longestablished New York or London firm acquiring a local firm
to gain access to the market. The partners in the new,
enlarged firm will need to set in place effective
administrative procedures, to ensure smooth operation.
Inevitably, lines of communication will be a priority.
GUIDELINES FOR BETTER LEGAL WRITING
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Match function and style of the text according to
the reader
Avoid long and embedded sentences
Avoid complex structures
Use active instead of passive verbs, if possible
GUIDELINES FOR BETTER LEGAL WRITING
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Avoid double negatives, exceptions to
exceptions
Avoid unnecessary synonym pairs (null and void)
Use technical legal terms only when necessary,
avoid jargon
Avoid Latin and foreign words if possible
SIMPLICITY OF LANGUAGE
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Avoid excessive use of legal slang
Break down long sentences into shorter ones
Use minimum words
Use titles, subtitles and paragraphs
USING ACTION VERBS FOR EMPHASIS
 A verb made into a noun is called a
“nominalization”. For example, the verb connect
can be made into the noun connection, and the
verb investigate can be made into the noun
investigation.
USING ACTION VERBS FOR EMPHASIS
 Nominalizations normally require a weak verb
(such as make, as in make a connection, or conduct,
as in conduct an investigation). This weakverb/noun combination is less direct, less emphatic,
and less energetic than its more concise action
verb equivalent (connect or investigate).
Some Do’s and Don’ts of Clear and Effective
Legal Writing
Broadly Speaking
 Use Plain Language, not legalese
 “Draw a road map for the reader” – opposite of a mystery novel
 Make your reasoning apparent
 Make your themes stand out
 Apply law to the facts
 Use paragraphs effectively, 5-7 sentences
 Use transitional phrases to clearly indicate when moving on to
another issue or sub-issue, i.e. “Regarding the second issue, …
Consequently, …”
 Use appropriate tone
 Use an outline - overall coherent approach to whole piece
Some Do’s and Don’ts of Clear and Effective
Legal Writing
Avoid
 Use of too many quotations
 Overly abstract law discussion only
 Logical fallacies
Detailed suggestions
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Use short sentences
Active voice
State it positively rather than negatively
Place referents carefully/ doctrine of last antecedent
Use parallel structure
Spell correctly
Proper punctuation
Definite/indefinite articles
Detailed suggestions
 Word choice- make every word count
 Match subject with verb
 Problem words, e.g.:
 principle/principal
 affect/effect
 shall/may
 Use quotations correctly
 Use concrete language
 Avoid redundancies
 Define technical/legal terms
Detailed suggestions
 Prefer verbs to nouns/noun phrases
 Careful use of discourse markers
THE SIX PARAMOUNT RULES OF GOOD LEGAL
WRITING
 Have a Point
 Get to the Point
 Adopt a Structure for Your Analysis That Will Allow You to Integrate
Facts, Court Analysis, and Policies into the Body of Your Argument
 Break Your Analysis Up Into Its Component Parts and Develop These
Separately, But In an Organized Way
 Adopt a Measured Tone
 Be Concrete and Simplify Whenever Possible
OTHER RULES OF GOOD LEGAL WRITING
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Write a Strong Introduction
Use Meaningful Titles to Introduce Each Section
Make Transitions Smoothly
Foresee and Address Respectfully the Arguments That Might Be Made
in Opposition to Yours
Make Use of Footnotes for a Variety of Purposes
Keep Your Quotations Short and to the Point
Do not Use the Language of an Article or Case You Are Discussing Any
More Closely Than Necessary to Express the Ideas with Precision
Consider the Policy Implications
WRITING COHESIVELY: TRANSITIONAL
EXPRESSIONS
 Connectors, language signals, transition words,
linking words, signposts, or guideposts.
 In linguistics they are called “discourse markers
 Discourse is text; a marker is a sign that tells you
where you are – and where you are going
Connectors
 Using connectors helps give text coherence – that
is, a natural, reasonable and logical connection
between parts of the text
 Connectors are used for transition.
Example
 (Para A) “…… Until Costa v ENEL some uncertainty
might have existed as to the role of EU law and its
relationship with national law. In its decision in this
case, the Court….
 (Para B) As a result of this decision, it now became
clear that…”
TRANSITIONAL EXPRESSIONS
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Amplification or addition
Cause and effect; consequence or result
Comparison or analogy
Contrast or alternative
Condition or concession
Conclusion
Emphasis
Illustration or example/clarifying
Relationship in time
STRUCTURE OF LEGAL DISCUSSION: IRAC
 ISSUE: What facts and circumstances brought the
parties to court?
 RULE: What is the governing law for the issue?
 ANALYSIS: Does the rule apply to these unique
facts?
 CONCLUSION: How does the court's holding modify
the rule of law?
Approaches to Analytical writing: The 9-Step
Analytical Writing Formula
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Step One: State the issue.
Step Two: Identify the rule.
Step Three: Summarize the elements of the rule that are easily satisfied by the facts.
Step Four: State the sticking point on which this issue turns.
Step Five: Apply one or more of the four types of Analysis to the problem.
Use one or more of the four types of proof to prove or disprove the rule.
 Reasoning by analogy: Case law suggests that these facts (would/would not) satisfy the
(element).
 Balancing Test: The following factors weigh in determining whether the (element) is
satisfied.
 Judicial Test: Courts have applied the following test to prove whether the (element) is
satisfied.
 Policy: The underlying policy of the rule (is/is not) furthered by its application in this
scenario. (Cite policy.)
Step Six: Contrast conflicting authority.
Step Seven: What are the defenses?
Step Eight: Make a conclusion.
Step Nine: Go to the next issue.
Understanding Court Opinions and Writing Case Briefs
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Why is case briefing (summarizing) important?
Case summary involves analysis, organization
and translation of thoughts into words:
extracting the vital elements of a case
How to read and Understand Court Opinions
The different parts of a case report are;
 The heading or caption. Title, including names of parties. Docket
number, name of court and date of decision.
 Names of judges
 Names of lawyers involved
 Summary of opinion
 Facts
 Legal issues
 Legal reasoning
 Holding: conclusion or point of law decided
How to organize a case summary?
 Not everyone agrees
 Probably: facts, issues, legal theory, reasoning,
decision or point of law decided.
The full categories of a case brief:
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Parties, their relationship, how the matter reached the
court (procedural matters)
Legal theory (cause of action and defence)
Facts
Relief requested
Issue(s)
Holding and disposition
Reasoning
Resulting legal rule(s)
Dictum (dicta)
Why Write Case Briefs?
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Case briefs help you understand cases better.
Usually judges talk about material in their
decisions that you don't even need and case
briefs allow you to draw the main points from
cases.
Why Write Case Briefs?
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Case briefs are the best way to build a record
that you can use in your work.
Why Write Case Briefs?
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Case briefs give you the skills that you are going
to need when you enter the field of law or legal
linguistics. Writing briefs gives you practice in
reading a case and then quickly getting the main
points out of that case, a skill that lawyers are
expected to possess, and equally interpreters
and translators working with/in law (legal
linguists).
ELEMENTS OF BRIEFING: another approach
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Procedural History
Legal Issue
Facts of case
Statement of rule
Policy
Dicta
Reasoning
Holding
Concurrence
Dissents
Case notes
 Case notes including footnotes are up to 4000
words in length. They should contain:
 Brief title to indicate what the case was about.
 The case name.
 A short list of key words.
 A short paragraph outlining the facts.
 The key elements of the judgment.
 A commentary. This should be a succinct analysis
and comment on the case.
Information: leaflet / web news item
You must:
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use facts
structure your content clearly and logically
use an attractive heading
use a picture or illustration
split your writing into boxes
use positive/negative language
use imperative verbs
You should:
 have a slogan
 use simple and compound sentences
 use sub-headings
You could:
 use repetition
 use a personal/friendly tone
 use a logo