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Legal writing= is the kind of writing used by lawyers, law professors, judges and other workers in the field of law to express legal rights, obligations and opinions.
presented in a proper form; specifically; the complaint of a plaintiff and the answer of a defendant plus any additional responses to those papers that are authorized by law.
Types of Legal writing
INFORMATIVE WRITING= information on an issue involving the law or a person’s legal rights. This type of writing does not take sides. Its goal is objective communication by predicting the law’s ’’path’’ vis-à-vis a set of facts regardless of who is involved. Example, memoranda, letters to clients and statement of facts in brief.
PERSUASIVE WRITING- convinces the reader to accept a certain viewpoint. Here, the writer argues for a particular side or perspective. He is expected of use available legal tools to support his thesis. These may be pieces of evidence offered in court, sections of the law, decisions of the SC, opinions of legal authorities on a subject. Examples: academic legal writing, motions, pleadings and argument section of the brief.
FUNCTIONAL WRITING- is designed a specific use or result in law. These are deeds, wills, contracts or drafts of law and ordinances which legally bind involved. It is enough to be accurate and complete yet understandable. TWO BROAD CATEGORIES OF LEGAL WRITING 1. 1.
LEGAL ANALYSIS PREDICTIVE ANALYSIS-
ANALYSIS-the facts and laws, The facts then applied the law, and they are interpreted according to the meaning of the law.
PREDICTION- the outcome of the legal question, whether positive or negative, is predicted.
RECOMMENDATION – based on the facts and law, gives his advise or recommendation as to what is the best line of action under the circumstances. 2. PERSUASIVE ANALYSIS- a persuasive documents attempts to persuade a judge, arbiter or any other deciding authority to decide the case in favour of the writer’s client. Examples. Pleadings, motions and briefs.
MOTION- a written or oral application made to a court or judge to obtain a ruling or order directing that some act be done in favour of the applicant. The applicant is known as the moving party, or the movant. BRIEF- a written document drawn up by an attorney for a party in a lawsuit or by appearing pro se that concisely states the following: 1. issue of a lawsuit 2. facts that bring the parties to court; 3. relevant laws that can affect the subject of the dispute; 4. arguments that explain how the law applies to the particular facts so that the case will be decided in the party’s favor. APPELLATE BRIEF- a writing must be filed with an appellate court so that the court may evaluate whether the decision of the lower court should be reversed because of some error or impropriety that occurred during the trial. CHAPTER 2-SIMPLICITY PURPOSE: 1. use short sentences, as a rule 2. avoid wordy expression, clichés and tautology 3. avoid elaborating on the obvious; 4. get to the point soonest 5. minimize the use connectives and relative pronouns; 6. avoid convoluted word-constructions 7. replace multisyllabic terms with shorter, more understandable words . ELEMENTS OF LEGAL WRITING
SIMPLICITY- in writing means to write a plainly and simply. To observe the rules on “ economy of expression ”each sentence must say what the writer the writer means and means what the writer wants to say.] RULES:
LEGAL DRAFTING- this is functional type of legal writing, Here, the writer creates a legal binding document, or uses at already available templates found in Legal Forms handbooks. Examples are: contracts, deeds, will and testaments for private persons, and laws, regulations and ordinances which bind the public in general. DEFINITION OF TERMS: MEMORANDUM- literally “ to be remembered” is a paper that explains and summarizes specific points of law for a judge, for another attorney or for a client. PLEADING- the formal presentation of claims and defenses by parties to a lawsuit. The specific papers by which the allegations of parties to a lawsuit are
Avoid wordy expression- simpler construction is preferred than using too many words an idea.
Avoid elaborating on the obviousthis means do not expand or restate the obvious. It bores the reader with information he already has.
Get to the point- omit unnecessary preliminaries
Avoid tautology- this means doing away with unnecessary repetition of an idea in different words.
Eliminate certain phrases6. Minimize the use of connective and relative pronouns
CHAPTER 3- CLARITY CLARITY- in writing results when the writer is able to express exactly what he wants to be reflected on his work. PURPOSE: 1. use concrete instead of abstract terms 2. when abstract terms could not be avoided, to back them up with illustrative examples, 3. avoid wide gaps between subject verb and object 4. avoid nested modifiers 5. avoid dangler modifiers 6. avoid ambiguous pronoun reference 7. avoid punctionas which cause ambiguity 8. apply the seven rules of clear writing
RULES IN CLEAR WRITING 1. Be clear on your point 2. make sure our point is communicated at once 3. have a structure. This is where you put your data, analysis and arguments 4. Observe grammatical rules 5. be precise 6. be consistent 7. be logical and clear in your argument CHAPTER 4- PERSUASIVENESS PERSUASION- is a process where people are guided towards the adoption of an idea or course of action. REASONING- is the process of drawing conclusions from facts or evidence. To reach the desired conclusion, arguments and proofs may be used. PURPOSE: -4 modes of reasoning
rules-based reasoningthe conclusion is reached by analyzing and applying the law, rule or legal principle.
analogical ( and the counteranalogical reasoning3 types of analogical argument: A. ARGUING FROM PRECEDENT-type of analogical argument happens when the conclusion is reached by showing similarities between the case decided by the Supreme court and the case of the client. B. ARGUMENT OF SAME LEGAL APPLICATIONanalogical reasoning may also be used to show similarities that if the law applies to one area, it may be understood to apply to other similar areas. C. ARGUMENT USING COMMON SENSE ANALOGYanalogical arguments may be used by starting with something that everyone accepts.
policy-based reasoning- reaches a conclusion by connecting the facts of the case to the state’s existing policy.
narrative reasoning- the conclusion by telling a story that shows the context, description and perspective that appeals to commonly-held ideas of justice, mercy or fairness.