Teaching Legal Writing:

Transcription

1 Teaching Legal Writing: But My Undergraduate Professor Told Me I Was a Great Writer! Helping Students Make the Transition to Legal Writing 2014 Biennial Conference Presentation by Eric Fleetham Assistant Professor of Research, Writing and Advocacy ecfleetham@avemarialaw.edu and Wendy Tenzer Assistant Professor of Research, Writing and Advocacy wtenzer@avemarialaw.edu

2 Note: This booklet is sent to all incoming 1L-students prior to Orientation. Writing Like a Lawyer An Introduction to Legal Writing for 1L Students Written by the RWA Department of Ave Maria School of Law All Rights Reserved. 1

3 Introduction Congratulations on your admission to law school! Law school will be an exciting and challenging time for you. While you may already be a good writer, you need to understand that legal writing is unlike any type of writing that you have done before. Legal writing requires formality, both in the structure of the document and in the words you use. It also requires precision and succinctness. Many students find the transition to legal writing difficult. The purpose of this booklet is (A) to provide tips to help make the transition to legal writing a little easier, and (B) to identify common pitfalls that students fall into. The chapter references below are from Just Writing (4th edition) by Anne Enquist and Laurel Currie Oates (a text recommended by the RWA department) unless otherwise noted. A. Key Differences Between Legal Writing and Undergraduate Writing 1. The Audience In undergraduate school, you wrote papers for your professor. In law school, your audience is technically not the professor, but rather a supervisor in a law firm (for memos in the first semester) or a court (for briefs in the second and third semesters). Although your professor will review and grade your writing assignments, the professor reviews them from the perspective of either your supervisor or the court. This is very important because this requires you to write for the naïve reader. Do not leave out information based on the assumption that your professor will know the material. Remember, your professor assumes the position of the intended audience. Your job is to inform your audience. Failure to inform your reader will result in a poor grade. Knowing your intended audience is crucial to legal writing. 2. You Are Representing Others In undergraduate writing, you wrote only for yourself. This is not true for legal writing. Although you are the author of what you write, your writing represents many people. First, you are writing on behalf of a client. Second, your writing is an extension of your law firm. Third, you owe ethical obligations to the legal profession. Finally, your writing also reflects on your law school. Therefore, when writing, remember that many people will be impacted by what you write. For example, poor writing will not only adversely affect you but may also adversely affect your client and law firm. 2

4 3. Organization Is Crucial Legally-trained readers expect documents to be organized in a certain way. Deviating from these standard requirements will confuse the reader. The format that you will learn in RWA is called the CREAC structure. This structure is used to present the Discussion section of a memo and the Argument section of a court brief. CREAC means: C - First, you must state your CONCLUSION. R - Second, you must state the RULE (i.e., the law) that governs the issue and include citations to the rule for the reader. E - Next, you must EXPLAIN the Rule. It is not enough to simply state the rule; rather, you need to explain how courts have interpreted and used the rule. This is also referred to as rule proof. A - Fourth, you must APPLY the rule to the facts at hand. This is where you show your work for the reader by explaining how you reach the conclusion. C - Finally, you end your section by restating your CONCLUSION. Accordingly, unlike other types of writing, the legal reader wants to see your conclusion at the beginning and again at the end. The remainder of the Discussion or Argument sections then support that conclusion. Thus, legal writing requires you to show the reader how you came to your conclusion. CREAC is not an arbitrary structure. Rather, it reflects the basic steps of legal analysis: 1) determine the rule; 2) understand how courts interpret the rule; 3) apply the rule to your given fact pattern; and 4) state your conclusion. 4. The Shorter the Better In undergraduate writing, the longer the paper, the better your grade. This is not true for legal writing. Good legal writing is concise and to the point. Legal readers simply do not have the time to wade through long sentences, long paragraphs, and long papers to learn the answer. Following these tips will help you write concisely. 1) Include only one concept per sentence. Likewise, limit your paragraphs to developing one concept. 2) Keep the subject and verb of the sentence close to each other. 3) Write with precision. There is no need to overcomplicate a concept. If you can say it in three words instead of six, you should do so; your reader will thank you. Remember, good legal writing is both concise and precise. See Chapter 5 (constructing effective sentences). 3

5 5. You Must Fully Support Your Contentions Legal readers demand that you fully support your contentions. This means that all factual statements and legal propositions must be supported by proper citation. A legal reader will have no confidence in what you say unless you fully support your statements with facts and law. The citation format that we use is The Bluebook. You will learn the key rules of The Bluebook in your first semester. 6. You Must Learn the Language While this tip may seem that it has no place in a primer on writing, you cannot be a good writer unless you understand the law that you are researching and will be writing about. As with most disciplines, law has a specialized language that must be learned and used properly. The best way to learn the language is to use a legal dictionary, either in print or electronic format. Do not read over a word because you do not know it. Look it up and learn its meaning. Although looking up words may seem time consuming, there is no short cut. Skipping words will likely lead to an inaccurate understanding and an incomplete or inaccurate written product. 7. Legal Writing Is a Lengthy Process In undergrad, some students are able to begin their writing assignments at the last minute and still receive a respectable grade. In legal writing, procrastination is foolhardy. Legal writing takes time, even for the experienced writer. When you receive your assignment, the first thing you should do is create a timeline. Set out the following deadlines for yourself: 1. review and analysis of the problem, 2. research, 3. case matrix, 4. outline, 5. write the rough draft, 6. revise and edit, and finally 7. revise and edit. (This step is so important that it requires repetition.) Each of these steps will take time, and the amount of time required for each step will depend on the complexity of the problem. Regardless, each project should follow these seven steps; skipping any of these steps could be detrimental. For instance, many 1Ls avoid writing an outline at all costs. Having struggled through the first one or two assignments, and missing key parts of the analysis, students later come to the realization that an outline might be beneficial. An outline is crucial because it helps students to stay on track. It also lets students know where additional research is needed. Also, it makes the writing process so much easier because a detailed outline guides your writing. If you have a detailed outline, you won t be sitting at your computer late at night wondering what to write. 4

6 Moreover, students will often skip the last two steps revise and edit, revise and edit. Revising and editing your work is not something you do the hour before you turn it in, provided you have time. On the contrary, revising and editing is a necessary part of the writing process and cannot be treated as an afterthought. As Supreme Court Justice Brandeis said, Plan ahead to allow significant time for revising and editing. For example, you should finish your draft two days in advance of the deadline. The last two days then are devoted to revising and editing your work. Legal readers expect a well-polished work. That cannot happen if you do not plan your time wisely. B. Common Grammatical and Punctuation Errors A paper that is rife with grammatical and punctuation errors will greatly affect the reader. First, the reader may be confused. Second, think of your writing as akin to a first impression when you meet someone for the first time. A paper that is riddled with errors signals to the reader that you are careless, lazy, incompetent, and unprofessional. The result is that the reader will lack confidence in what you have to say. Moreover, your writing represents many people. Thus, a poorly-written paper leaves the reader with a negative impression of not only you, but also your office and your client. Finally, poor legal writing is a quick way to upset your client (and open you up to malpractice claims), your supervisor, and judges. 1. The Comma Commas are frequently used incorrectly and can damage the effect of a sentence. Just Writing delineates twelve rules to help you understand proper comma use. Additionally, comma splices are identified and explained. See Section 9.1 (Twelve Rules) See Section 9.6 (Comma Splices) 2. Run-On Sentences Lengthy sentences need to be revised and drafted, ensuring that separate clauses are not needed. Run-on sentences are frequently used in combination with comma splices. When a sentence is too long, it seems best to use a comma to break it up. However, using commas improperly is not the answer. Identifying individual clauses and using proper punctuation is integral to avoiding a run-on sentence. 5

7 Original Run-on Sentence: A sentence that is too long will be hard for the reader to understand, the reader will likely miss the point. After Revision: A sentence that is too long will be hard for the reader to understand. Additionally, the reader will likely miss the point. Or: A sentence that is too long will be hard for the reader to understand, and the reader will likely miss the point. Both revisions are fluid and easy for the reader to understand. Breaking up the original run-on sentence allows for cohesiveness in the statement. See Section (Fused Sentences) 3. Apostrophes a. Ownership Apostrophes denote ownership. They are used to form the plural of certain numbers, letters, and words. Just Writing details eight rules for proper use of an apostrophe. Incorrect: James car Correct: James s car James is a singular noun ending in s, which calls for an ( s) to be placed after the -s. Even though there is an -s at the end of the noun James, it is not difficult to pronounce. The apostrophe is therefore included. *If the result of placing an ( s) at the end of a word makes it difficult to pronounce, do not do it. Incorrect: Jesus s teaching Correct: Jesus teaching 6

8 Using ( s) to form the plural of certain words is acceptable (to form the plural of abbreviations, for example, such as J.D. s ). However, identifying which words require an ( s) is crucial. A common mistake is to use an apostrophe to create a plural noun. In this situation, apostrophes should only be used for one purpose to create ownership. Incorrect: Defendant s argued that they were wrongfully discharged. (Here, defendant s is the singular possessive form when the subject needs to be plural.) Correct: Defendants argued that they were wrongfully discharged (plural, nonpossessive noun) But, also correct: Defendants argument prevailed (plural possessive noun) Incorrect: The defendants will argue that lightning caused the house fire, not their negligence. (Defendants do not possess anything.) Correct: The defendants house was destroyed by fire. (Whose house? The house of several defendants.) Incorrect: The Wagner s joined us for Thanksgiving dinner. Correct: The Wagners joined us for Thanksgiving dinner. 7

9 b. Contractions Apostrophes are used in contractions to substitute for letters and numbers that are omitted (i.e., can t, don t, won t, etc.). However, contractions should not be used in legal writing, unless they are part of a quote. See Section 9.4 (The Apostrophe) 4. Wordiness A significant problem that students have is wordiness. In undergrad, sometimes, the more you wrote, the higher the grade. This is not true for legal writing. Your goal is to answer the issue quickly. Legal readers are impatient and do not have time to wade through a lot of words to get to the answer. They demand straight-forward answers. See Just Writing, Section 6.2 for tips on how to write concisely. Tips to concise writing: A. Use strong verbs and adjectives. This example is to illustrate a sentence that is wordy. The parties reached an agreement on April 30 to settle their dispute. Revised: This example illustrates a wordy sentence. The parties agreed on April 30 to settle their dispute. Note: By using strong verbs, you avoid passive voice, which makes your sentence unclear and unnecessarily wordy. 8

10 B. Avoid throat-clearing language. These are filler words that do not help the reader s understanding of the sentence, and usually detracts from that understanding. It is important to note that the court recognized the reasonableness of the action by the defendant. Revised: The court recognized that the defendant acted reasonably. See Chapter 6.2 (Conciseness) 5. Pronouns and Nouns A pronoun never stands alone. It must match the noun (antecedent) that it is replacing. Furthermore, the pronoun must agree with the gender of the noun. Lastly, singular nouns require singular pronouns; plural nouns require plural pronouns. Antecedent (noun) Bill Board signed his name to the contract. Bill Board and Al Dente signed their names to the contract. Either Bill or Al must sign his name to the contract. Plaintiffs claim that they suffered mental distress. Pronoun His Their His They See Sections (Pronoun-Antecedent Agreement) and 8.5 (Pronoun Reference). 9

11 6. Words Not to Use in Legal Writing While certain words may be acceptable in undergraduate writing, they have no place in legal writing. This section presents the types of words that must be avoided in legal writing. a. First and Second Person Pronouns The pronouns I, me, we, us, you, and your are not acceptable in memo or brief writing. They must be avoided. Incorrect: You should avoid first-person pronouns in your writing. Correct: Avoid first-person pronouns in legal writing. Incorrect: Our client, Miles, is likely to succeed on a claim of private nuisance. Correct: Miles is likely to succeed on a claim of private nuisance. See Section (Absence of First- and Second-Person Pronouns). b. Contractions Contractions use an apostrophe to fill in for letters and numbers that are being left out. (i.e., can t, don t, won t, etc.) Contractions should not be used in legal writing, unless they are part of a quote. 10

12 7. Attribution and Quotations Whenever you use a resource for support, you must provide attribution. In legal writing, we call this the citation. As stated above, the citation format we use is The Bluebook. However, if you quoted the information from the resource, mere attribution is not enough. You must also indicate that you quoted the material by using quotation marks. Providing proper attribution but omitting quotation marks is a form of plagiarism because the absence of quotation marks leads the reader to believe that the text is your own thoughts. When using quotation marks, remember to set off the direct quotation with a comma or colon unless you integrate the quotation into your sentence. Also, do not forget to put the period inside the ending quotation mark. The statute provides: A citation for unnecessary use of horn is a civil infraction. When the defendant answered the door, he said, I ve been waiting for you. In Florida, a person commits battery when a particular result was substantially certain to follow from his or her conduct. Section (Quotation Marks). See also Section 1.8 of The Redbook by Bryan Garner. Additional Resources Bryan A. Garner, The Redbook: A Manual on Legal Style (on reserve in the library) Examples & Explanations: Legal Writing (Part IV) Michael Higdon, The Legal Reader: An Exposé, 43 N.M. L. Rev. 77 (2013) 11

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14 NOTES (cont d.) 13

15 Eric Fleetham Wendy Tenzer Assistant Professors of Research, Writing, Advocacy Ave Maria School of Law 1025 Commons Circle Naples, FL