Effective legal writing depends on the right rhetoric, specific grammar rules, and perfect punctuation. Beyond the technical details of the law, writing about legal matters takes meticulous attention to detail to ensure your credibility as a lawyer, paralegal, blogger, or other legal contributor. Certain themes carry through all kinds of writing—good organization, proper grammar and punctuation, practice, and identifying your audience. These skills don't just come naturally to most people, but there are ways to improve those skills and to use your natural abilities to your benefit in legal writing. In this article, we look at seven ways to improve your legal writing.
1. Rhetoric
First and foremost with legal writing, you need to make sure you are using the right word choice to illustrate your point. When it comes to persuasive writing, even in legal contexts, the way you phrase a thought can make all the difference in your argument. In fact, the use of rhetorical theory in legal practice has been studied at many institutions. For example, Kristen Konrad Robbins-Tiscione wrote, For legal writing courses to achieve intellectual maturity, they must incorporate rhetorical theory.
The purpose of teaching rhetoric in law classes and rhetoric's power in the legal field is further illustrated by Kristen's comment that, In addition, teaching the rhetorical nature of law in a legal writing course helps students debunk sooner the myth of 'black letter law' in their doctrinal courses.
This suggests that rhetoric can introduce doubt or dispute for an element or principle of law that was previously considered immutable. To truly make your case (regardless of the grandness of context), rhetoric is a necessary skill for success.
2. Oxford comma
Yes, the much-debated and often-maligned Oxford comma, also known as the serial comma, is required for clarity in legal documents. Many jokes and memes have arisen at the expense of the Oxford comma. Those against this tiny clarifier often joke that the only people who care about the Oxford comma are grammar nerds, Strunk & White, and those who follow the infamous Chicago vs. AP style debate.
Judges, however, don't take punctuation lightly. On March 13, 2017, a case between a Maine dairy company and its delivery drivers was granted a reversal of summary judgment in favor of the delivery drivers. The case hinged on the use (or rather the lack of use) of a serial comma in a list of activities excluded from Maine's overtime law. This changed the interpretation, leaving the exemption activities open to interpretation. Specifically, the dairy company's exemption stated, The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: …
The drivers contended that shipment or distribution
referred to the single activity of packing,
meaning the excluded activity was packing the food products for either shipment or distribution. With the serial comma included, the exemption would clearly have delineated distribution, an activity that the delivery drivers clearly do, as being separate from packing. The case eventually settled with a $5 million settlement to the drivers.
The Oxford comma can clearly save you or your clients quite a bit of money.
3. Keep it concise and clear
Legal writing is at its best when clarity is the goal. Use shorter sentences, smaller words, and avoid double negatives like "not uncommon." When reviewing your work, find opportunities to replace multiple words with one word. For example, instead of "in light of the fact that…," use "because." These phrases are often viewed as fillers that replace substance. If your writing is concise, then you have more room for important communication with your intended audience. Remember, using more words does not increase the authority of the document. It may even have the opposite effect!
4. Intended audience
Speaking of intended audience, be sure you are writing for the person who will be reading it. Are you writing to another paralegal? Are you writing for a legal-themed blog? Is your document a proposal for a corporate client? There are many uses for legal writing, but they all don't need to have the same structure. Court documents are often bland and dry because they are full of specific requests or standard filings. If your document is intended to convince a judge of your position, however, you will want to get your point across without wasting their time with extravagant and flowery language. Get to the point, use exactly the words you mean, and make sure every sentence has a purpose for your argument. If you're writing in an unfamiliar context, don't be afraid to read what others have written in that area. Use what you learn from their writing to benefit your own work.
5. First drafts are not final documents
It's in the name: draft. Drafts are a starting point. Read and re-read, edit, and proofread your draft and turn it into a final document. It doesn't really matter how many times you rewrite your document as long as you don't use your first draft as your final document. Some people do best when they write with a stream of consciousness first and clean it up later. That's a perfectly fine way to start, whether it's legal writing or narrative writing. In school you may have learned to create an outline first. This can help you organize your thoughts logically before you start writing. Using an outline often gets you halfway to your first draft. Make notes on your outline and refer to those notes as you edit your first draft and tighten up the language. In the end, first drafts are meant to end up in the trash bin – that is their purpose. Use that time to filter through the unnecessary thoughts and language to ensure your final document is clear and ready for submission.
6. Take a class
This one seems a bit obvious, but it must be said that learning doesn't end with the bar exam or with graduation day. Keep grammar and style rules fresh in your mind by periodically taking writing and editing classes. Even if you audit a class at your local community college, the refresher course can greatly enhance your writing and give your mind a fresh view away from your usual daily workload. As part of this learning process, keep copies of certain books in your office or home and read through them regularly. The Elements of Style by Strunk & White is an essential companion for writers of all kinds. Two other essentials (aside from legal reference books, of course) are the Merriam Webster Dictionary or the Oxford English Dictionary.
7. Proofread and hire an editor
The importance of proofreading your legal writing cannot be overstated. As illustrated above, even a small mistake, such as a missing comma, can make a significant difference in the intended outcome. Law firms once had teams of proofreaders working in teams to ensure copies of documents were the same and that all necessary changes had been made correctly. One would read the document out loud – even the punctuation marks – while the other would follow along on a second copy. This was an effective way to catch mistakes. Technology has mostly taken the place of such proofreading methods, but the importance of meticulousness in proofing has no replacement.
Shameless self-promotion alert
Professional editors can take on that responsibility for you, whether contract editors or on-staff editors. The investment can be well worth it and can save you a lot of headache later on. Find editors and proofreaders who have experience with legal writing. They can help you focus your tone and style to fit the requirements of legal writing.
In the end, legal writing doesn't have to be difficult or elusive. Following the seven methods above can elevate your legal writing to increase the change of a case or filing going your way. Remember to use rhetoric, punctuation, style, continuing education, and proofreading tools to your benefit. Taking a class may take a few hours of your time, but the benefits can last for months or years. You may be surprised at how much you enjoy it.