Legal Writing Handbook
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II. Different Types of Legal Writing (cont.)
A. Know what Legal Writing Style is Appropriate
The "register" of language is the style as defined by the circumstances in which the language is used. The register of writing is sub-classified by:
- the field of discourse [science, advertising, or here law]
- the mode of discourse [spoken or written]
- the manner of discourse [as defined by the social relations between the parties and the levels of formality necessary]
When the field and mode are understood, the word "register" signifies "manner." For purposes of this course, we consider the field of law and the written mode. The "manner" or "register" will vary according to the purpose of the writing.
Registers are divided into four types:
- Familial
- Informal
- Formal
- Ceremonial
We seldom use the "familial" register in legal writing. One exception might be in-house electronic mail. Familial register is reserved for family members or close friends. We ordinarily make no effort to correct or edit our writing. We assume that our reader has a great deal of familiarity with the topic and the situation, so it is usually unnecessary to do a lot of explaining. Much is understood. Much is left to the imagination.
Informal register is common in interoffice memoranda. We check our spelling, we write in complete sentences. Contractions are appropriate.
Formal writing is required for anything designed to leave the office. Most of this course deals with formal legal writing.
Finally, because of legal traditions, some of our writing is ceremonial. Part of courtroom procedures is ceremonial, as when the bailiff intones, "Hear ye, hear ye, hear ye. All rise, the Honorable Court is now in session. God save this Honorable Court." The use of the term, "Your Honor," is ceremonial. The phrase, "May it please the Court," is ceremonial. Some documents written by lawyers are ceremonial. Wills and deeds are particularly ceremonial. Subpoenas and summonses are ceremonial.
In ceremonial language old fashioned phrases are prescribed. Most ceremonial language involves the use of Early Modern English vocabulary and grammatical forms. Modern English is the English used from around 1500 A.D. until today. Shakespeare wrote in Modern. The King James version is in Modern English.
Middle English is the language of Chaucer:
Whan that Aprill with his shoures soote
The droghte of March hath perced to the roote,
And bathed every veyne in swich licour
Of which vertu engendred is the flour;
Whan Zephirus eek with his sweete breeth
Inspired hath in every holt and heeth
The tendre croppes, and the yonge sonne
Hath in the Ram his halve cours yronne,
And smale foweles maken melodye,
That slepen al the night with open eye
So priketh hem nature in hir corages;
Thanne longen folk to goon on pilgrimages . . .
It can be read with difficulty. Old English is almost completely unintelligible, as exemplified by this excerpt from Beowulf:
na in geardagum žeodcyninga
Modern English is divided into Early Modern ( or Tudor) English (sixteenth century), Middle Modern English (seventeenth century), and Current Modern English ( eighteenth through twentieth century).
Most lawyers can not write in ceremonial. No lawyer should. Ceremonial language is not much use for communicating anything more than is covered by traditional formulas.
We may open with ceremonial language, but when we have to say something new, there is no prescribed formula. We must then switch to the formal level.
This switch, from ceremonial to formal, then allows us to put our own talents to use and draft legal documents from scratch.
The Bananaberry v. Robinson problem gives us the opportunity to evaluate many types of legal writing.
The first document that would be generated resulted from Mr. Bananaberry's consultation with Ms. Cheatham. This event would typically trigger an internal memorandum for the file. Such memoranda can be quite informal, approaching familial.
| To: | ml | Memorandum |
| From: | HLC | |
| Subject: | Re: O. Julius Bananaberry vs. Will Robinson | |
| Date: | Jan. 3, 2000 |
Myron:
We have represented O. Julius Bananaberry, a local entrepreneur, for many years. He has come to our office today with an unusual problem which calls for your technical skills. His automated mood ring factory seriously malfunctioned, causing a lot of damage. I don't really know what went wrong, but he says it has something to do with the year two thousand bug.
Please call Mr. Bananaberry and see if you can get the facts straight.
P.S. I think there was an article in the newspaper about this year 2000 thing a couple of weeks ago. There may be other problems with it.
The next document would be triggered by some preliminary investigation regarding the viability of legal action.
| To: | HLC | Memorandum |
| From: | ML | |
| Subject: | Bananaberry v. Robinson | |
| Date: | Jan. 9, 2000 |
Dear Harriet:
r. Bananaberry and Hiram Tweedle, an expert I have retained - I hope you don't mind - to check out the situation at Groovy Mood Ring Company, Inc. On January 5, 2000.
The first thing we did is inspect the code. This does appear to be a classic Y2K problem. The offending lines of code were as follows:
INPUT "ENTER DATE OF SALE"; DATE$
IF LEN(DATE$)=2 THEN DATE$=CHR$(2,DATE$)
IF DATE$>2000 THEN DATE$=CHR$(2,DATE$)
It is Mr. Tweedle's opinion, with which I heartily concur by the way, that Mr. Robinson fell below the standard of care for a reasonable computer programmer when he piggybacked the old subroutine in his order compliance module without reviewing the old code for potential problems including the Y2K problem, which was, of course, by then, well recognized by professionals in the computer science field.
Mr. Bananaberry is a pleasant and affable fellow.
Nevertheless, when UPS brought a truckload of his mood rings back at approximately 10:00 a.m. Mr. Bananaberry became agitated. He opened a box of rings which the automated order filling system had sent in compliance with an order made by a now nonexistent corporation in 1962. If one were to judge by the color of the rings, Mr. Bananaberry was quite dissatisfied.
Next we proceeded to evaluate the damage to Mr. Bananaberry's hardware. It was munged. We were interrupted by the mailman, who brought a number of inquiring letters and a bill from Mr. Robinson for $400.00 for his consultation of January 2, 2000. Curiously, it was typed on a manual typewriter. Anyway, we went back to inspect the damage.
Most of the machines were no longer functional. The machines that were functional showed signs of extensive wear. Strange, as the machines were all less than two years old.
We definitely need to sue Mr. Robinson. All this damage was caused by his negligent programming.
The next order of business would entail notifying your client about the status of the firm's preliminary investigation.
Attorneys at Law
Humongous National Bank Bldg.
Suite 2500
Capitol and Main Streets
Little Rock, AR 72201-7706
Fax: (501) 372-5147
Harriet Cheatham
Associates:
Warren Howe
V.I. Ulyanov
Bill High
Myron Lerner
Helen Highwater
Fred Flintstone
Re: Bananaberry v. Robinson
Dear Mr. Bananaberry,
As you know, Ms. Cheatham has asked me to work with you in preparing your action against Will Robinson, et al, arising out of Mr. Robinson's malpractice in failing to account for the Y2K problem in adapting your old software for incorporation into the new computer program he wrote to manage your fully automated mood ring factory, which caused you to sustain damage in excess of the amount required for federal diversity jurisdiction.
I propose that we initiate an action in the Circuit Court of Pulaski County, Arkansas against Mr. Robinson, setting forth in separate counts our complaint, a draft whereof is enclosed herein, our claims for breach of contract, malpractice, breach of express warranty, breach of implied warranty for a particular purpose, and negligence, each count which I believe will be sustained by the admissible and material evidence which we have gathered to date. I further propose to propound sixty separate interrogatories and requests for production, copies whereof are attached hereto in sequence following the draft of the complaint.
Should you have any questions regarding the aforementioned course of action which I recommend herein, kindly direct said questions to the undersigned.
Myron Lerner
Attorney at Law
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