Legal Writing

• Author: Ted Tjaden
• Pages: 397-416

397

CHA PTER 12

LEGAL WR ITING

A. INTRODUC TION

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.

B. WHY L AWY ERS WR ITE LIKE L AWY ERS

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

LEGAL R ESEARCH AND W RITING398

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

precedents.

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.