Legal Writing

AuthorTed Tjaden
Many books are already publi shed on legal writing, as witne ssed by the
lengthy list of legal wr iting resources listed in Section I at the end of this
chapter. Rather than tr ying to duplicate the effort of other authors on
this topic, the goal in thi s chapter is instead to merely highlight some of
the main points on effect ive legal writing. To start, there is a brief over-
view of why lawyers wr ite like lawyers and of the recent trend towards
the use of plain English in legal writing. This introduction is followed
by a discussion of speci f‌ic types of legal wr iting, including tips for writ-
ing case comments, res earch memos, factums, business and commercia l
agreements, and court documents. Re aders wanting more details on
legal writing can consult the many resources li sted in Section I.
It is, of course, an indispen sable part of a scrivener’s business to ver ify 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 examination , 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 sang uine temper-
aments, it would be altogether int olerable.
— Herman Melvi lle, Bartleby, the Scrivener
What does it mean to say that lawyers write “like law yers”? Unfortu-
nately, the impression that some non-lawyers have is that lawyers tend
to use too much gobbledygook (or “legalese”) when they write and
speak. There are several rea sons why this has been so. Perhaps the main
reason is that law yers have traditional ly been quite conservative, rely-
ing upon well-established past precedent s.1 Doing so can sometimes be
a good thing since it ensures consistency and safe practice. The prob-
lem, however, is that many older precedents used archaic language,
Latin phrase s, notoriously bad legalese (“the Defendant struck the said
car”), and redundant expressions, or “freight train s” (for example, “null
and void” — using void alone is suff‌icient).2 Since scriveners were often
paid by the number of words they tran scribed, there was little incentive
for brevity and every motivation to be as wordy as pos sible, as would
have been the case w ith Melville’s Bartleby.
Combined with these factors i s the very essence of law yering —
trying to anticipate every possible scenario or risk by “crossing every
‘t’ and dotting every ‘i’ ” when drafting legal documents. Thi s approach
is not always a bad thing, but it can sometime s be unnecessar y, espe-
cially when done unconsciously when lawyers are bli ndly copying past
Another reason why lawyers write like lawyers 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 — especi ally when it is capitalized and u ses Latin phrases
— sounds impressive; it was likely employed by some law yers to in-
timid ate people.
In defence of “writing like a l awyer,” lawyers do need to use precise
language since some legal problems are complex, involve important
issues, and must, therefore, be descr ibed in precise terms. In addition,
some Latin phrase s, such as res ipsa loquitur (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
elsewhere towards the use of pla in English in legal writing, a topic dis-
cussed brief‌ly in t he next section.
1 Timothy Perri n, Better Writing for Lawyers (Toronto: Law Society of Upper Can-
ada, 1990) at 3–4.
2 “Freight train s” is a phrase used by Perr in, ibid at 136.

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