Whether you are new to legal writing or an old pro, keeping in mind some essential fundamentals is important. Without structure, clarity, proper grammar, and coherence, you are presenting a position that is less easily defended and supported. If you are presenting a case to a judge, they will expect to understand your position right away. Legal writing is not the time to put your personal voice and style into a document. Legal rhetoric includes specific style guidelines and requirements to be successful. Without following those principles, you could experience some problems with credibility and success.
Here are some of the top, fundamental principles of legal writing.
Organization
First and foremost, stay organized. This principle comes first because it starts with creating an outline of what you need to write. Organize your thoughts and then elaborate on them. When you create an outline first, you are able to see if the progression of your argument makes logical sense before getting into the details of each aspect. Using Microsoft Word's® numbering feature can be a big help in knowing which sections you are referring to the further down the outline you get in your final document. Put a focus on identifying the key points in your argument and develop smaller sections from there to assure clarity throughout your document.
Short sentences
Write shorter sentences with plain language. As you will see a little further down this list, being clear makes a difference in writing a successful legal paper or brief. Attention spans have gotten shorter over time as society has increased usage of television, streaming services, apps, smartphones, and instant messaging. Using long sentences of old legal jargon no longer serve a positive purpose. Keep each of your ideas short and sweet. Steven Stark, author of Writing to Win, says the more complex the material, the shorter the sentences should be. That holds true for legal writing as well.
Accuracy and honesty
When you are writing a legal document, staying accurate and honest is important to the success of your argument or position. Write the facts only. Do not get into the habit of adding in hyperbole to make a point, and do not insert your personal feelings about a situation where there are hard facts and evidence to present.
Furthermore, do not use vague reference words. For example, instead of saying something like, "The Defendant recently paid the Plaintiff for professional services," say, "The Defendant paid the Plaintiff $1,500 for professional consulting services on May 15, 2020 through a personal check." If you have dates, then use the dates. The more specific information you have, the clearer the case will be.
Conclusion first
Hearkening back to the organization principle listed above, present your position statement and conclusion first. By clearly identifying the concluding idea first, you are putting that idea in the reader's mind upfront before outlining what supports that position. After presenting all the evidence supporting that conclusion, bring the legal document to a close by restating that position.
Citations
In legal writing, citations require a balance. While you do not want to leave out specific information from a case, you also do not want to over-burden the document with so many citations that there is no new substance there to support the specific case at hand. Carefully consider what information is necessary to repeat verbatim with the legal citation versus what information can be summarized or paraphrased with an in-text citation for the reader to use if they want to explore more detail.
Plain English vs. legalese
In the section above on short sentences, we pointed out that the more complicated the topic is, the shorter the sentences should be. One simple way to do this is to opt for plain English over legalese. Long-winded sentences using extravagant legal terms are often needlessly technical. Though past legal cases and documents use legal language to its fullest, modern expected conventions of the legal community are centering around clear language.
One example of the importance of using plan English is in the insurance industry. In cases of insurance bad faith, for example, courts will rule in favor of the insured over the insurer when there is ambiguous or unclear policy language from the insurer. Everyone is not expected to understand technical language of the legal system, particularly when more plain, common wording is available to describe a situation. Consider the audience of your legal document, and write for them in plain language.
Oxford comma
The much-discussed Oxford comma is important in legal writing. Too often, legal documents have errors in clarity as the result of missing punctuation that would make a statement clear. Though many writers in other disciplines think the Oxford comma, or serial comma, is superfluous punctuation, the Oxford comma absolutely has a place in legal writing. Do not take a chance that your sentence will be unclear by leaving out this punctuation mark.
Proofread then proofread again
The last thing you want is to have typos, grammar mistakes, omissions, and punctuation errors in your legal filed documents. Not only could this harm a case you are working on, but it could also cause damage to your reputation as a legal representative if word gets around that you repeatedly have mistakes in your documents. Legal writing can have life or death consequences, so it seems obvious that taking the extra time to ensure correctness is mandatory.
There are services available online that can help you find and fix mistakes in documents of all kinds. In addition to those services, some techniques you can use on your own to proofread your documents include reading the text backwards word by word, reading it out loud by yourself or with a partner, and speaking the punctuation marks out loud to ensure they are the right ones for you. Reading text out loud makes mistakes stand out. Find all those little mistakes, fix them, then read the document again. You should read through your legal documents at least three times before submitting them or sending them to clients.
Active voice
There are generally two types of voice one can write in: active voice and passive voice. Passive voice often requires the reader to fill in gaps, make assumptions, and do extra work to figure out what you are trying to say. In legal writing, this presents an issue with accuracy and honesty in your argument. By using active voice, you can stay clear, concise, and coherent, which is the next principle on the list. Active voice means that you say who is doing the action and what that action is. Do not leave the interpretation up to the reader, because that can leave your case or argument going in a direction you did not intend. Another aspect of using active voice is putting the modifying words as close as you can to the words you are modifying.
Clarity, concision, coherence
Legal writing is just a different form of technical writing. Some elements of technical writing are clarity, concision, and coherence. Without those three elements, your legal document will be unreadable and therefore unhelpful to your case. Even if you are writing for a legal class in law school, your document needs to be clear and understandable. If you are unable to clearly present your argument, then this will signal to the judge or course instructor that you do not fully understand or support your own position. By combining all the previous principles of legal writing above, you can ensure that you have a clear and concise legal document that is coherent enough for the toughest judge.
Legal writing can be intimidating if you think about all the steps you need to take to ensure success of your argument. Start out with an outline, use short sentences, and follow the other principles of legal writing to create success in your legal documents. These principles will take the intimidation out of legal writing. Consider your audience and present your hard facts in a logical order, and you will see success in your legal writing.
