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Riga Graduate School of Law RIGA GRADUATE SCHOOL OF LAW PROFESSIONAL LEGAL WRITING: PRINCIPLES AND PRACTICE COURSEBOOK Language Tools for Legal Writing 1 Professional Legal Writing: Principles and Practice Effective legal writing, as an essential ingredient to being a complete lawyer, is arguably the principal means by which legal skills are measured. In particular, legal writing should clearly demonstrate the means by which conclusions are reached, rather than being a mere summary of conclusions. Moreover, terminology should be kept to a minimum but, when used, should be used correctly. Course aim: to improve professional communication skills. Course objective: to introduce elements of professional legal writing. Course content will be a mixture of theory and practical exercises Texts: a variety of legal texts are used for course exercises and tasks, e.g., emails, contracts, due diligence, court reports, press reports, EU directive, ECJ decision. Tasks involve professional skills such as advising, persuading, and informing. Students prepare tasks in-class and then choose one task to deliver for grading. Skills: The course involves mainly reading, writing, analytical and organizational skills. Methodology: the course begins with a seminar dealing with theoretical aspects of legal writing, followed by a series of interactive workshops. These will be based on case studies in which participants will have the opportunity for guided practice in legal writing in realistic contexts. Course requirements and grading: to pass the course, students must attend 80% seminars + deliver one completed writing task (see above “Tasks”). © Christopher Goddard 2015 1 Language Tools for Legal Writing 2 CONTENTS I. DEFINING EFFECTIVE LEGAL WRITING .................... 4 Legal language: functions, features; varieties, and characteristics of legal writing. TASK: linguistic analysis of newsletter on European tax law II. LEGAL WRITING: BASIC PRINCIPLES ................ 122 Overview: categories and styles of legal writing; aspects of writing in cross-cultural contexts. TASK: create newsletter item from EU directive III. WRITING CORRECTLY: GRAMMAR AS A VITAL TOOL FOR LAWYERS. ................................................. 18 Functions of grammar in legal English. Problem Areas: legal prepositions; modals to express intention in legal text (e.g.may vs is entitled to); conditionals; verb structures and tenses; relative clauses; recommendations and suggestions. TASK: linguistic analysis of online banking contract. IV. WRITING EFFECTIVELY: ORGANIZING STRUCTURE OF TEXT ............................................... 300 Effective writing: ingredients; developing your argument in structured paragraphs; paragraph organization; sentence structure. TASK: linguistic analysis of scaffolding hire contract. V. WRITING COHESIVELY: GUIDING THE READER; LINKING IDEAS ......................................................... 39 Language as a connector/commas as connectors; text coherence; linking word sentence position; adverbial linking words; playing with paragraphs. TASK: linguistic analysis of draft contract for services. © Christopher Goddard 2015 2 Language Tools for Legal Writing 3 VI. WRITING CLEARLY ............................................. 54 Accuracy; punctuation; summarizing text. TASK: summary report on ECJ judgment. VII. WRITING WITH PROFESSIONAL STYLE: TECHNIQUES FOR LAWYERS ...................................... 66 Avoiding unnecessary words; avoiding wordy expressions; plain English for lawyers; formality; techniques for revising and editing. FURTHER TASKS: edit mails; test your vocabulary skills. Sources ...................................................................... 87 Appendix: notes on EMAILS 88 © Christopher Goddard 2015 3 Language Tools for Legal Writing 4 I. INTRODUCTION: DEFINING EFFECTIVE LEGAL WRITING “They would rather be accurate than clear. They would sooner be long than short” – Lord Denning on lawyers, 1978. LEGAL LANGUAGE: FUNCTIONS, FEATURES, VARIETIES, CHARACTERISTICS Functions of legal language - to establish rights and obligations - to distribute information - to enable communication within the legal profession Universal features of legal language extreme precision obscurity, ambiguity archaism (structures and vocabulary) formalism, ritualism and ceremonialism wordiness and redundancy lengthy and complex sentences (embeddings) impersonal constructions (passive) terms of art, technical terminology VARIETIES OF LEGAL WRITING One suggestion as to varieties of legal writing is: 1) Academic Legal Writing: the language of academic research journals as well as that of legal text-books (instructional or informational orientation) © Christopher Goddard 2015 4 Language Tools for Legal Writing 5 2) Juridical Writing: the language of court-judgements, case-books and law reports (where one may find traces of legislative writing) 3) Legislative Writing: typical legal documents like Acts of Parliament, statutory instruments, contracts, agreements, treaties, etc., where the main function is to legislate by creating a unique world of obligations, permissions and prohibitions. (Bhatia) We can develop this further by seeing legal language in professional settings: legislative language, statutory language language of statutes, conventions, treaties, language of legal drafting language of jurisprudence, courtroom language language used by courts and judges, court decisions, judg(e)ments language of litigation language used by lawyers (UK: barristers) in court bureaucratic language, administrative language language of administrative documents language of legal doctrine academic writing, language of legal textbooks language of private legal documents contracts, insurance policy, testament language etc. language of international organizations? Language of international or multilingual organisations, “EU language”, “eurospeak” lawyer-client communication consultations, putting client’s concrete situation in legal context © Christopher Goddard 2015 5 Language Tools for Legal Writing 6 CHARACTERISTICS OF LEGAL ENGLISH (Mellinkoff. D., 1963 The Language of the Law): 1. common words with specialist meaning executed meaning signed and delivered/performed, carried out/ killed as a punishment party meaning person contracting or litigating 2. old or middle English words thenceforth notwithstanding 3. Latin words and phrases ultra vires in propria persona 4. words of French origin damage mortgage 5. terms of art (technical terms, often Latinisms) comparative negligence negotiable instrument 6. argot (jargon) for the duration of (= during) in the event that (= if) 7. formal words I do solemnly swear to tell the Truth, the whole Truth and nothing but the Truth 8. words and expressions with flexible meaning (euphemisms) fair division undue influence reasonable man © Christopher Goddard 2015 6 Language Tools for Legal Writing 7 good faith 9. extreme precision 10. many words where one will do (Old Engish/Latin/Law French) Examples rest, residue and remainder Will and Testament final and conclusive fit and proper give, devise, and bequeath null and void/null, void, and of no effect Act and Deed WHY LEGAL ENGLISH IS THE WAY IT IS Historical reasons . development of legal and administrative system and characteristics of the power elite (Latin/Roman influence, Norman conquest, French influence) . doubling and tripling (e.g., null, void, and of no effect) . retention of foreign elements (latinisms, frenchisms) Jurisprudential factors . common law: precedent and case law (the law is determined by reference to earlier judgments) . legal terms fixed in earlier judgments Sociological factors . lawyers’ need to conform to and identify with other members of the profession, professional peer pressure (”talking and writing like a lawyer”) . lawyers’ need to be “indispensable” Political factors . euphemisms (”visually challenged”) . need for precision/ambiguity (treaties, agreements) . administrative © Christopher Goddard 2015 7 Language Tools for Legal Writing 8 “We lawyers cannot write clear English. We use eight words to say what could be said in two. We use old, archaic phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause within clause, glazing the eyes and numbing the minds of our readers.” Richard Wydick Characteristics of good legal writing Here is one group of suggested characteristics, or traits, of good legal writing. This is not intended to be definitive, especially as the borderline between legal and business writing is not always clear. Conciseness: write the message in as few words as possible Completeness: ensure that all information needed by the reader to respond or act is included Courtesy: show consideration for the reader Clarity: write clearly Correctness: check for accuracy of all statements and details And here is another list of characteristics: Accurate (grounded in law) analytical Relevant organized Thorough Specific and concrete Logical Correct (grammar, punctuation, usage) Persuasive Clear Next: Punctuate the following sentence as you think appropriate: “ To communicate effectively you must know three things your audience your purpose and your material” Answers 1 ASSESSING WRITING SKILLS EXERCISE A. Highlight the appropriate word choice in the following sentences: 1. The EU is comprised of/composed of sovereign states. © Christopher Goddard 2015 8 Language Tools for Legal Writing 9 2. Regulations compliment/complement statutes by implementing
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