Distinguishing features

Authority[edit]
Legal writing places heavy reliance on authority. In most legal writing, the writer must back up
assertions and statements with citations to authority. This is accomplished by a unique and
complicated citation system, unlike that used in any other genre of writing. The standard methods for
American legal citation are defined by two competing rule books: the ALWD Citation Manual: A
Professional System of Citation and The Bluebook: A Uniform System of Citation. Different methods
may be used in other countries.[1]

Precedent[edit]
Legal writing values precedent, as distinct from authority. Precedent means the way things have
been done before. For example, a lawyer who must prepare a contract and who has prepared a
similar contract before will often re-use, with limited changes, the old contract for the new occasion.
Or a lawyer who has filed a successful motion to dismiss a lawsuit may use the same or a very
similar form of motion again in another case, and so on. Many lawyers use and re-use written
documents in this way and call these re-usable documents templates or, less commonly, forms.

Vocabulary[edit]
Legal writing extensively uses technical terminology that can be categorised in four ways:

1. Specialized words and phrases unique to law, e.g., tort, fee simple, and novation.
2. Ordinary words having different meanings in law,
e.g., action (lawsuit), consideration (support for a promise), execute (to sign to effect),
and party (a principal in a lawsuit).
3. Archaic vocabulary: legal writing employs many old words and phrases that were formerly
quotidian language, but today exist mostly or only in law, dating from the 16th century;
English examples are herein, hereto, hereby, heretofore, herewith, whereby,
and wherefore (pronominal adverbs); said and such (as adjectives).
4. Loan words and phrases from other languages: In English, this includes terms derived
from French (estoppel, laches, and voir dire) and Latin (certiorari, habeas corpus, prima
facie, inter alia, mens rea, sub judice) and are not italicised as English legal language, as
would be foreign words in mainstream English writing.
Formality[edit]
These features tend to make legal writing formal. This formality can take the form of long sentences,
complex constructions, archaic and hyper-formal vocabulary, and a focus on content to the exclusion
of reader needs. Some of this formality in legal writing is necessary and desirable, given the
importance of some legal documents and the seriousness of the circumstances in which some legal
documents are used. Yet not all formality in legal writing is justified. To the extent that formality
produces opacity and imprecision, it is undesirable. To the extent that formality hinders reader
comprehension, it is less desirable. In particular, when legal content must be conveyed to
nonlawyers, formality should give way to clear communication.
What is crucial in setting the level of formality in any legal document is assessing the needs and
expectations of the audience. For example, an appellate brief to the highest court in a jurisdiction
calls for a formal style—this shows proper respect for the court and for the legal matter at issue. An
interoffice legal memorandum to a supervisor can probably be less formal—though not colloquial—
because it is an in-house decision-making tool, not a court document. And an email message to a
friend and client, updating the status of a legal matter, is appropriately informal.
Transaction documents—legal drafting—fall on a similar continuum. A 150-page merger agreement
between two large corporations, in which both sides are represented by counsel, will be highly
formal—and should also be accurate, precise, and airtight (features not always compatible with high
formality). A commercial lease for a small company using a small office space will likely be much
shorter and will require less complexity, but may still be somewhat formal. But a proxy statement
allowing the members of a neighborhood association to designate their voting preferences for the
next board meeting ought to be as plain as can be. If informality aids that goal, it is justified.
Many U.S. law schools teach legal writing in a way that acknowledges the technical complexity
inherent in law and the justified formality that complexity often requires, but with an emphasis on
clarity, simplicity, and directness. Yet many practicing lawyers, busy as they are with deadlines and
heavy workloads, often resort to a template-based, outdated, hyperformal writing style in both
analytical and transactional documents. This is understandable, but it sometimes unfortunately
perpetuates an unnecessarily formal legal writing style.
Recently a variety of tools have been produced to allow writers to automate core parts of legal
writing. Westlaw's drafting assistant tool allows transactional lawyers to check certain formalities
while writing. Litigation attorneys can now rely on tools such as BlueLine to assist them in checking
citations and quotations to legal authority. [2]

Categories of legal writing[edit]

Legal writing is of two, broad categories: (i) legal analysis and (ii) legal drafting. Legal analysis is
two-fold: (1) predictive analysis, and (2) persuasive analysis. In the United States, in most law
schools students must learn legal writing; the courses focus on: (1) predictive analysis, i.e., an
outcome-predicting memorandum (positive or negative) of a given action for the attorney's client;
and (2) persuasive analysis, e.g., motions and briefs. Although not as widely taught in law schools,
legal drafting courses exist; other types of legal writing concentrate upon writing appeals or on
interdisciplinary aspects of persuasion.

Predictive legal analysis[edit]

The legal memorandum is the most common type of predictive legal analysis; it may include the
client letter or legal opinion. The legal memorandum predicts the outcome of a legal question by
analyzing the authorities governing the question and the relevant facts that gave rise to the legal
question. It explains and applies the authorities in predicting an outcome, and ends with advice and
recommendations. The legal memorandum also serves as record of the research done for a given
legal question. Traditionally, and to meet the legal reader's expectations, it is formally organized and
written.

Persuasive legal analysis[edit]

The persuasive document, a motion or a brief, attempts to persuade a deciding authority to favorably
decide the dispute for the author's client. Motions and briefs are usually submitted to judges, but also
to mediators, arbitrators, and others. In addition a persuasive letter may attempt to persuade the
dispute's opposing party.
Persuasive writing is the most rhetorically stylized. So although a brief states the legal issues,
describes authorities, and applies authorities to the question—as does a memorandum—the brief's
application portion is framed as an argument. The author argues for one approach to resolving the
legal matter and does not present a neutral analysis.

Legal drafting[edit]
Legal drafting creates binding legal text. It includes enacted law like statutes, rule and regulations;
contracts (private and public); personal legal documents like wills and trusts; and public legal
documents like notices and instructions. Legal drafting requires no legal authority citation and
generally is written without a stylised voice.

Legal Writing in academia[edit]

Mercer University School of Law is home to the Legal Writing Institute, the world's largest
organization devoted to improved legal writing. The Institute's 2100 members represent attorneys,
judges, and legal writing professors in the United States, Canada, Europe, Asia, Australia, and New
Zealand.

Plagiarism[edit]
In writing an objective analysis or a persuasive document, lawyers write under the
same plagiarism rules applicable to most writers. Legal memoranda and briefs must properly
attribute quotations and source authorities; yet, within a law office, a lawyer might borrow from other
lawyers' texts without attribution, in using a well-phrased, successful argument made in a previous
brief.
Plagiarism is strictly prohibited in academic work, especially in law review articles, seminar papers,
and similar writings intended to reflect the author's original thoughts.
Legal drafting is different; unlike in most other legal writing categories, plagiarism is accepted,
because of the high value of precedent. As noted, lawyers extensively use "forms" (contracts, wills,
etc.) in drafting documents; borrowing from previous documents is common. A good lawyer may
frequently copy, verbatim, well-written clauses from a contract, a will, or a statute to serve his or her
client's legal interests.

Legalese[edit]
Legalese is an English term first used in 1914[3] for legal writing that is very difficult for laymen to
read and understand, the implication being that this abstruseness is deliberate for excluding the
legally untrained and to justify high fees. Legalese, as a term, has been adopted in other
languages.[4][5] Legalese is characterized by long sentences, many modifying clauses, complex
vocabulary, high abstraction, and insensitivity to the layman's need to understand the document's
gist. Legalese arises most commonly in legal drafting, yet appears in both types of legal analysis.
Today, the Plain Language Movement in legal writing is progressing and experts are busy trying to
demystify legalese.
Some important points in the debate of "legalese" v. "plain language" as the continued standard for
legal writing include:

Public comprehensibility[edit]
Perhaps most obviously, legalese suffers from being less comprehensible to the general public than
plain English, which can be particularly important in both private (e.g., contracts) and public matters
(e.g., laws, especially in democracies where the populace is seen as both responsible for and
subject to the laws).[6]

Resistance to ambiguity[edit]
Legalese may be particularly resistant to misinterpretation, be it incidental or deliberate, for two
reasons:[citation needed]

1. Its long history of use provides a similarly extensive background of precedent tied to the
language. This precedent, as discussed above, will be a strong determinant of how
documents written in legalese will be interpreted.
 2. The legalese language itself may be more precise when compared to plain English, having
arisen from a need for such precision, among other things.
Joseph Kimble, a modern plain-English expert and advocate, rejects the claim that legalese is less
ambiguous in The Great Myth that Plain Language is not Precise.[7] Kimble says legalese often
contains so many convoluted constructions and circumlocutions that it is more ambiguous than plain
English.

Coverage of contingencies[edit]
Legal writing faces a trade off in attempting to cover all possible contingencies while remaining
reasonably brief. Legalese is characterized by a shift in priority towards the former of these
concerns. For example, legalese commonly uses doublets and triplets of words (e.g., "null and void"
and "dispute, controversy, or claim") which may appear redundant or unnecessary to laymen, but to
a lawyer might reflect an important reference to distinct legal concepts.
Plain-English advocates suggest that no document can possibly cover every contingency, and that
lawyers should not attempt to encompass every contingency they can foresee. Rather, lawyers
should only draft for the known, possible, reasonably expected contingencies. [8]

Expectation/preference[edit]
Regardless of its objective merits or demerits when compared to plain English, legalese has a clear
importance as a professional norm. As such, lawyers, judges, and clients may expect and prefer it,
although no client or judge has ever actually expressed such a preference publicly.[citation needed] But a
study conducted by Joseph Kimble, has expressly revealed the preference of judges and lawyers for
plain language alternatives.[citation needed]
LEGAL M ETH OD: FEAT UR ES OF GOOD
LEGAL WR ITING
April 29, 2016

1.0 INTRODUCTION
Prior to engaging the required question’’ discuss in details the features of good legal writing’’ it
is most imperative to have a functional understanding [definition] of what the term ‘legal
writing’ entails and then an attempt can be made to discuss its features.
The Wikipedia Online Dictionary defineslegal writing as a type of technical writing used by
lawyers, judges, legislators, and others in law to express legal analysis and legal rights and
duties. In essence, legal writing in practice is used to advocate for or to express the resolution of
a client’s legal matter. But what then is good legal writing ?
A well-written legal document, according to Professor Mark Osbeck, is ‘one that satisfies the
needs and interests of the intended audience’’. Lawyers and judges read legal documents because
they need to extract information from these documents that will help them make decisions in the
course of their professional duties. Accordingly, the legal reader will regard a document as well
written only if the writing facilitates that decision-making. Having discussed the concepts of
legal writing and good legal writing, an attempt can be made to discuss most pertinently, the
features of legal writing.
1.2FEATURES OF LEGAL WRITING
In Nigeria, the basis of legal writing can be traced to ; Oputa, JSC, at pages 413-414, they
commented thus;’’ the lawyer confronted with the task of preparing a brief would do well to
remember what may be called the ABC of all legal writing, namely;accuracy, clarity, and
brevity.
2.0 ACCURACY
Accuracy, as a feature of legal writing focuses on getting legal facts correct in all their details
and ensuring that cited cases are viable as precedents and stand for what they are cited for. It also
requires that statements made must be presented as they are without bias or half-truths. Accuracy
places honesty as one of the paramount components of a good legal writing. On speaking on
honesty, Judge Daniel Friedman of the Courts of Appeal for the Federal Circuits of the United
States of America,’’ if a lawyer is shown not to be accurate, he is not candid, he is distorting
things, even the things he rightly stated are likely to be rejected by the court’’.
An example of inaccuracy is sited in Universal Vulcanizing (Nig.) Ltd vs. IUTTC &Ors(1992) 9
NWLR(PT.226) 388, 397, The presiding judge[ Omo, JSC] commented thus’ ’it is a book on
diverse subjects full of sentiments, rather than hard legal arguments, and containing intemperate
language against opposing counsel’’
Also in the case of TheophilusOnuohavs the state, the presiding judge [Craig, JSC] commented
thus’ ’I must observe that these issues have not been formulated in accordance with the rules of
this court. For one thing, they are very verbose unduly repetitive… a brief which deals
extensively with both the relevant and irrelevant matters is of no use to the court’’.
In essence, if you are wrong about some things, how does one know you are not wrong about
others? Therefore accuracy implies a correct, fair, straightforward and honest statement of the
facts of the case.
2.1BREVITY
Brevity basically emphasises on the need for a legal document, most pertinently a brief to be as
concise as possible. This does not imply that the brief must be extremely short as it would lack
substance. In essence brevity canvases for a case that is not lengthy, but detailed. On brevity,the
Greek tragic dramatistSophocles aptly wrote, “Much wisdom often goes with the fewest words’’.
An example of the lack of brevity is in the case of Universal Vulcanizing (Nig.) Ltd vs. IUTTC
&Ors(1992) 9 NWLR(PT.226) 388, 397, The presiding judge[ Omo, JSC] commented thus’ …it
is a 70 page booklet which is more of a treatise than a brief…it is lengthy, otiose and not
surprisingly, repetitive… it is hoped that the court will not be inflicted in the future with the
tiresome of wading through such a document.
Also, in the case of Ogunleye v Jegede, the judge[Joseph Diekola J.C.A] stated’’ the first thing
that struck me was that the brief of Mr.Ijaodola who is noted for his brevity was particulary brief
since it covered only two pages’’
In essence, a writer who does themost is he who gives the reader the most knowledge, and takes
from him the least time.
2.2CLARITY
Clarity emphasises on the need for a legal writer to first of all have clarity and understanding of
the brief he writes. Secondly, clarity requires a lawyer haven understood a case, to be able to
express himselfexplicitly in the brief.
First, many court cases or legal conflicts involve charges with potentially capital consequences;
that is, such situations may determine whether an individual lives or dies as a result of
accusations. In these cases, all relevant and invoked written material must be able to signify their
intended meaning without any allowance for doubt. For example, a written document
summarizing a past event must communicate not only the chronological sequence of events but
also the context surrounding them. Otherwise, the document may turn out to communicate a
message that is far from truly accurate.
Second, the primary function of the law is, arguably, to deal with legislation, whether through
speculative interpretation or through careful formulation. For those involved in formulating new
laws and setting them down, clarity and comprehensiveness must be achieved simultaneously.
Any ambiguous statement, grammatical slip, or lack of appropriate definition could introduce the
potential for interpretation that is drastically different from the law’s intended purpose.
Another important reason that writing in the law must be clear is that it should be accessible to
the average citizen. Although not all legal situations may be entirely explainable in layman’s
terms, language that is overly complex inhibiting citizens’ access to its purpose.
An example of the need for clarity is in the case of Eng. Ent. Contractor Co. Of Nig. VA-G.
Kaduna State vs. A.G of Kaduna State, the judge [Bello CJN] commented thus;’’ If I may
respectfully state, what the brief filed by Mr.Ijaodola has failed to do. In a most admirable
manner, consistent with the tradition of the Bar, the learned Attorney – General, Mrs.Donli has
presented two sides to the court with brilliant clarity’’.
Also, in the case ofFalomo v Bangibe, the judge [Ogundare, J.S.C] stated’’ I agree entirely with
the judgement of my learned brother, Iguh, J.S.C, just delivered. He has in his usual
characteristic clarity, dealt with all the issues canvassed in the appeal. I adopt his reasoning and
conclusions as mine and, like him too, I dismiss the appeal with costs as assessed by Iguh.
3.0 CONCLUSION
In conclusion a good legal writing such as a brief should be devoid of all forms of ambiguity,
sentiments, irregularities and other attributes that do not conform to the recognized manner of
legal writing. In essence, every good legal writing.must have the attributes of accuracy, brevity
and clarity.
Forms of Legal Writing

There are, of course, many types of legal writing. These examples of legal writing
differ in their specific functions. While this chapter will concentrate on the preparation
of a legal memorandum, it is helpful to distinguish different functions of legal
documents.

Correspondence

Letters and email between attorneys or paralegals and clients comprise the bulk of
correspondence. There may also be correspondence with witnesses, businesses or
agencies, or even potential adversaries.

Pleadings

These documents are generally fact based, not law based. (In order to succeed,
the law must eventually be proven to apply to the client’s situation.) The writer
prepares documents that lay out specific facts which support his or her position
in litigation or criminal proceedings. It is in motions and at trial that the law is applied
to the facts set forth in the pleadings.

Discovery

These documents are also fact based, not law based. The primary purpose
of discovery is to expose facts relevant to litigation, such as what really happened, or
what witnesses the opposition intends to call during trial. There may be requests,
however, for the law the opposing party intends to argue at trial.

Motions

Motions are procedural in nature. They seek to have the court address a
procedural issue in the matter before the court, such as a request to grant summary
judgment.
Briefs and Memoranda

These documents argue legal issues and are, therefore, law based documents. Internal
memoranda (such as interoffice memos) are objective, looking at both sides of the legal
question with an open mind. External memoranda (such as trial briefs) attempt to
persuade the reader and, therefore, only argue law that is favorable to the client.
TYPES OF LEGAL WRITING

Letters to Clients or Inter office Memoranda. Be sensitive to the needs,

level of interest and background of the person to whom you are writing. A
definition of legal terminology in an inter-office memo would be
unnecessary but would be prudent in a correspondence to a client.

Persuasive Writing. This type of writing is done in briefs, negotiation letters

and is normally done on a client’s behalf. In this type of writing the lawyer
must persuade their audience respectfully and without wasting their time
with unnecessary information. Courts and administrative agencies have
required document styles.

Drafting of Legal documents such as wills and contracts is another type of

legal writing. These documents require a form to the facts type writing.
They are not flowery but instead conform to a generally accepted format to
avoid unnecessary litigation because the points were unclear.

Citation. This is a unique system of writing used by the legal profession

which has lately been under fire for not keeping up with technology. It was
designed to help the reader retrieve the cited authorities. However, with
disc based law collections and internet access tools, there is pressure on
the courts to change these citation norms. They presuppose that a
publishers print volume is a key volume, even though that volume is often
not even printed until a year after the decision is handed done.

Legalese. A term that is associated with a style of legal writing that was
created by lawyers. It is generally hard to understand by the non-legal lay
person. It describes legal writing that is wordy and uses unnecessary
technical terms.

Because legal writing needs to be understood by everyone from the judge

to the lay person the profession has adopted a writing style that adopts the
4 C’s- Clear, Concise, Correct and Complete. Therefore the modern lawyer
in their understanding of the profession would not choose to use Legalese.
The parts of a pleading under Rule 7 are: the caption (Sec. 1), the text or
the body (Sec. 2), thesignature and address (Sec. 3), the verification (Sec. 4), and
the CERTIFICATION AGAINST FORUM SHOPPING (SEC. 5).
Caption
The caption must set forth the name of the court, the title of the action, and the docket
number if assigned. The title of the action indicates the names of the parties. They
shall all e named in the original complaint or petition; but in subsequent pleadings, it
shall be sufficient if the name of the first party on each side be stated with an
appropriate indication when there are other parties. Their respective participation in
the case shall be indicated.
Signature and address
1. Every pleading must be signed by the party or counsel representing him, stating
in either case his address which should not be a post office box.
2. The signature of counsel constitutes a certificate by him that he has read the
pleading; that to the best of his knowledge, information, and belief there is good
ground to support it; and that it is not interposed for delay.
3. An unsigned pleading produces no legal effect. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall appear that the same
was due to mere inadvertence and not intended for delay. Counsel who
deliberately files an unsigned pleading, or signs a pleading in violation of the
Rule, or alleges scandalous or indecent matter therein, or fails to promptly report
to the court a change of his address, shall be subject to appropriate disciplinary
action.
4. In every pleading, counsel has to indicate his professional tax receipt (PTR) and
IBP receipt, the purpose of which is to see to it that he pays his tax and
membership due regularly
Verification
1. A verification of a pleading is an affirmation under oath by the party making the
pleading that he is prepared to establish the truthfulness of the facts which he has
pleaded based on his own personal knowledge.
2. The general rule under, Sec. 4. Rule 7 is that, pleading need not be under oath.
This means that a pleading need not be verified. A pleading will be verified only
when a verification is required by a law or by a rule.
3. A pleading is verified by and affidavit, which declares that: (a) the affiant has
read the pleading, and (b) the allegations therein are true and correct to his
personal knowledge or based on authentic records.
4. The verification requirement is significant, as it is intended to secure an assurance
that the allegations in a pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is filed in good faith.
The absence of proper verification is cause to treat the pleading as unsigned and
dismissable.
 5. It is, however, been held that the absence of a verification or the non-compliance
with the verification requirement does not necessarily render the pleading
defective. It is only a formal and not a jurisdictional requirement. The
requirement is a condition affecting only the form of the pleading (Sarmeinto vs.
Zaratan, GR 167471, Feb. 5, 2007). The absence of a verification may be
corrected by requiring an oath. The rule is in keeping with the principle that rules
of procedure are established to secure substantial justice and that technical
requirements may be dispensed with in meritorious cases (Pampanga
Development Sugar Co. vs. NLRC, 272 SCRA 737). The court may order the
correction of the pleading or act on an unverified pleading if the attending
circumstances are such that strict compliance would not fully serve substantial
justice, which after all, is the basic aim for the rules of procedure (Robert
Development Corp. vs. Quitain, 315 SCRA 150).
CERTIFICATION AGAINST FORUM-SHOPPING
1. The certification against forum shopping is a sworn statement certifying to the
following matters:
1. That the party has not commenced or filed any claim involving the same
issues in any court, tribunal, or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending;
2. That if there is such other pending action or claim, a complete statement of the
present status thereof; and
3. That if he should therefore learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five (5) days therefrom
to the court wherein his aforesaid complaint or initiatory pleading has been
filed.
2. The certification is mandatory under Sec. 5, Rule 7, but nor jurisdictional (Robert
Development Corp. vs. Quitain, 315 SCRA 150).
3. There is forum shopping when, as a result of an adverse opinion in one forum, a
party seeks a favorable opinion, other than by appeal or certiorari in another.
There can also be forum shopping when a party institutes two or more suits in
different courts, either simultaneously or successively, in order to ask the courts
to rule on the same or related causes and/or to grant the same or substantially the
same reliefs on the supposition that one or the other court would make a favorable
disposition or increase a party’s chances of obtaining a favorable decision or
action (Huibonhoa vs. Concepcion, GR 153785, Aug. 3, 2006). It is an act of
malpractice, as the litigants trifle with the courts and abuse their processes. It is
improper conduct and degrades the administration of justice. If the act of the
party or its counsel clearly constitutes willful and deliberate forum-shopping, the
same shall constitute direct contempt, and a cause for administrative sanctions, as
well as a ground for the summary dismissal of the case with prejudice (Montes
vs. CA, GR 143797, May 4, 2006). Forum shopping exists when the elements of
 litis pendentia are present or where a final judgment in one case will amount to
res judicata in another.
4. It is the plaintiff or principal party who executes the certification under oath, and
not the attorney. It must be signed by the party himself and cannot be signed by
his counsels. As a general and prevailing rule, a certification signed by counsel is
a defective certification and is a valid cause for dismissal (Far Eastern Shipping
Co. vs. CA, 297 SCRA 30).
5. This certification is not necessary when what is filed is a mere motion for
extension, or in criminal cases and distinct causes of action.
Requirements of a corporation executing the verification/certification on non-
forum shopping
A juridical entity, unlike a natural person, can only perform physical acts through
properly delegated individuals. The certification against forum shopping where the
plaintiff or a principal party is a juridical entity like a corporation may be executed by
properly authorized persons. This person may be the lawyer of a corporation. As long
as he is duly authorized by the corporation and has personal knowledge of the facts
required to be disclosed in the certification against forum shopping, the certification
may be signed by the authorized lawyer (National Steel Corp. vs. CA, 388 SCRA 85).
Effect of the signature of counsel in a pleading
A certification signed by a counsel is a defective certification and is a valid cause for
dismissal (Far Eastern Shipping Company vs. CA, 297 SCRA 30). This is the general
and prevailing rule. A certification by counsel and not by the principal party himself is
no certification at all. The reason for requiring that it must be signed by the principal
party himself is that he has actual knowledge, or knows better than anyone else,
whether he has initiated similar action/s in other courts, agencies or tribunals. Their
lawyer’s explanation that they were out of town at the time their petition was filed
with the CA is bereft of basis. That explanation is an afterthought as it was not alleged
by counsel in her certification against forum shopping (Go vs. Rico, GR 140682,
April 25, 2006).
Allegations in a pleading
Every pleading shall contain in a mathematical and logical form, a plain, concise and
direct statement of the ultimate facts on which the party relies for his claim and
defense, as the case may be, containing the statement of mere evidentiary facts.