Legal Writing
| Author | Ted Tjaden |
| Profession | National Director of Knowledge Management McMillan LLP |
| Pages | 341-359 |
341
CHAP TER 12
LEGAL WR ITING
A. I NTRODUC TION
There is a large number of books already published on legal w riting, as
witnessed by t he lengthy list of legal wr iting resources listed 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 high-
light some of the main points to be made about effective legal writing.
To start, there is a discussion of effective legal writing principles. This
is followed by a discussion of specific types of legal writing, including
case comments, research memos, factums, drafting agreement s, and
court documents. Readers wanting more details on legal writing can
consult the many resources listed in Section I.
B. WHY L AWY ERS W RITE LIK E L AWYER S
It is, of course, an indispe nsable part of a scrivener’s busine ss to verify the
accuracy of his copy, word by word. Where there are two or more scriv-
eners in an office, the y assist each other in this examinat ion, one reading
from the copy, the other holding the original. It is a ver y dull, wearisome,
and lethargic affair. I can readily imagine that, to some sanguine te mper-
aments, it would be altogether intolerable.
—Herman Melville, Bartleby, the Scrivener
LEGAL R ESEARCH A ND WRITING342
What does it mean to say that law yers write “like lawyers”? Unfortu-
nately, the impression that some non-lawyers h ave is that lawyers tend
to use too much gobbledygook (or “legalese”) when they write and
speak. There are several reasons why this has been so. Perhaps the
main reason is that lawyers have traditionally been quite conservative,
relying upon “tried and tr ue” past precedents.1 This can sometimes b e a
good thing since it ensures consistency and safe practice. The problem,
however, is that many older precedents used archaic language, Latin
phrases, notoriously bad legalese (“the Defendant struck the said car”),
and redundant expressions or “freight trains” (for example, “null and
void” —usi ng void alone is suf ficient).2 Since scriveners were often paid
by the number of words they transcribed, there was little incentive for
brevity and every motivation to be as wordy as possible, as would have
been the case with Melville’s Bartleby.
Combined with these factors is the very essence of lawyering—tr y-
ing to anticipate every possible scenario or risk by “crossing every ‘t’
and dotting every ‘i’” when drafting legal documents. This is not al-
ways 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 law yers is the monopolis-
tic nature of the legal profession and its perceived elite nature. Law-
yers were seen to belong to an exclusive, upper-class “club” that did
not include the “unlearned” among its members. The very use of legal
language — especially when it is capitalized and uses Latin phras-
es —sounds impressive and was likely used by some lawyers to intimi-
date people.
In defence of “writing like a law yer,” lawyers do need to use precise
language since some legal problems are complex, involve important
issues, and must therefore be described in precise terms. In addition,
some Latin phrases, such as res ipsa lo quit ur (the “thing” or negligence
speaks for itself ), have meaning for lawyers and judges and are under-
stood by them without the need for additional explanation.
Fortunately, there has been a movement in North America and else-
where towards the use of plain English in legal writing, a topic briefly
discussed in the next section.
1 Timothy Perrin, Better Writing for Lawyers (Toronto: Law Society of Upper Ca n-
ada, 1990) at 3–4.
2 “Freight tra ins” is a phrase used by Per rin, ibid. at 136.
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