Legal Writing
| Author | Ted Tjaden |
| Profession | Faculty of Law and Faculty of Information Sciences University of Toronto |
| Pages | 265-282 |
CHAPTER
11
LEGAL
WRITING
A.
INTRODUCTION
There
are a
large number
of
books already published
on
legal writing,
as
seen
in the
lengthy list
in
section
I at the end of
this
chapter. Rather
than trying
to
duplicate
the
effort
of
other authors
on
this
topic,
an
attempt
is
made
in
this chapter
to
highlight
a few key
aspects
of
legal
writing.
To
start with
is a
discussion
of
effective
legal writing princi-
ples. This
is
followed
by a
discussion
of
specific types
of
legal writing,
including
case comments, research
memos,
factums, drafting agree-
ments,
and
court documents. Readers wanting more details
on
legal
writing
can
consult
the
many resources listed
in
section
I.
B.
WHY
LAWYERS
WRITE
LIKE LAWYERS
It
is,
of
course,
an
indispensable part
of
a
scrivener's
business
to
verify
the
accuracy
of
his
copy,
word
by
word.
Where there
are two or
more scriven-
ers
in an
office,
they assist each other
in
this examination,
one
reading
from
the
copy,
the
other holding
the
original.
It is a
very
dull, wearisome,
and
lethargic
affair.
I can
readily
imagine that,
to
some sanguine tem-
peraments,
it
would
be
altogether intolerable.
-
Herman
Melville,
Bartleby,
the
Scrivener
265
266
LEGAL
RESEARCH
AND
WRITING
What does
it
mean
to say
that lawyers write "like lawyers?"
The
answer
to
this question
is
likely related
in
part
to the
reason
why
there
are so
many
lawyer
jokes:1
lawyers (unfortunately) tend
to use too
much gob-
bledygook
(or
"legalese")
when they write
and
speak. There
are
sever-
al
reasons
why
this
has
been
so.
Perhaps
the
main reason
is
that lawyers
have
traditionally been quite conservative, relying upon "tried
and
true"
past
precedents.2
This
can
sometimes
be a
good thing since
it
ensures consistency
and
safe
practice.
The
problem with this, however,
is
that many older precedents used archaic language,
("This
Agreement
Witnesseth"),
Latin phrases
("mutatis
mutandis"),
notoriously
bad
legalese
("the
Defendant
struck
the
said car"),
and
redundant expres-
sions
or
"freight
trains"
("null
and
void"
—
using
void alone
is
suffi-
cient).3
Since scriveners were
often
paid
by the
numbers
of
words they
transcribed, there
was
little incentive
for
brevity
and
every motivation
to
be as
wordy
as
possible,
as
with
the
case
with
Melville's Bartleby.
Combined with these
factors
is the
very essence
of
lawyering
in
trying
to
anticipate every possible scenario
or
risk
by
crossing every
"t"
and
dotting
every
"i"
when
drafting legal
documents.
This
is not
always
a
bad
thing
but can
sometimes
be
unnecessary, especially when
it is
being done unconsciously when lawyers
are
blindly
copying past
precedents.
Another
reason
why
lawyers write like lawyers
is due to the
monopolistic nature
of the
legal profession
and of its
perceived elite
nature.
Lawyers were seen
to
belong
to an
exclusive, upper-class "club"
that
did not
include among
its
members
the
"unlearned."
The
very
use
of
legal language
—
especially when
it is
capitalized
and
uses Latin
phrases
—
sounds impressive
and was
likely (and still
is)
used
by
some
lawyers
to
intimidate people.
In
defence
of
"writing like
a
lawyer"
is the
argument that lawyers
often
deal with complex matters that
can
sometimes only
be
described
in
complex terms.
In
addition, some Latin phrases,
such
as res
ipsa
loquitur
(the "thing"
or
negligence speaks
for
itself)
have meaning
for
lawyers
and
judges
and are
understood without
the
need
for any
addi-
tional explanation.
Fortunately,
there
has
been
a
movement
in
North America
and
elsewhere towards
the use of
plain language
in
legal writing,
a
topic
briefly
discussed
in the
next section.
1
2
3
See,
e.g.,
the
lawyer jokes
at
Nolo
Press'
Web
site
at
humor/jokes/>.
Timothy Perrin, Better
Writing
for
Lawyers
(Toronto:
Law
Society
of
Upper Cana-
da,
1990)
at
3-4.
"Freight
trains"
is a
phrase used
by
Perrin,
ibid,
at
136.
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