Legal Writing Handbook
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II. Different Types of Legal Writing (cont.)
B. Know Your Audience and What You Want to Say.
Never forget your audience.
Myron forgot his audience in his letter to Mr. Bananaberry. Although sophisticated business clients expect their lawyers to bury content in incomprehensible verbiage when necessary, they do not appreciate it when that skill is used against them.
Mr. Bananaberry did not retain counsel to initiate an action. He hired a lawyer to sue somebody.
Write plain English to clients. Explain legal procedures when necessary. Only use legalese when there is no other way to convey your meaning. Then explain all legal terms in standard English.
Maintain a consistent tone -- in the register; and in the dialect.
Myron's memo to Harriet shifts in tone:
"Munged" is cyberbabble for "destroyed." "Cyberbabble" is to computer specialists what legalese is to lawyers. Myron uses both.
The register tone of this memo ranges from formal to familial.
The dialect tone of this memo switches from cyberbabble to legalese.
Shifts in register and dialect render this memo unreadable.
Know your audience.
Remember, Harriet Cheatham cannot operate her microwave oven. She adds up her billable hours on an abacus. She confesses to being a technological illiterate.
Why, then, is Myron giving her computer code?
Also consider that when Myron refers to the old program, he calls it the old program, the old subroutine, or the old code.
Is there a difference between these three terms?
If so, he should make the difference clear. If not he should be consistent in using a word to describe the old program.
Understandability trumps variety. Use the same word to refer to the same thing.
In most prose you use variation to avoid repeating the same word. In legal writing this practice leads to confusion.
Know what you want to say
Myron's memo is stream of consciousness at its worst. James Joyce could create a work of art in stream of consciousness style; Myron cannot.
Mr. Bananaberry might be a likeable fellow. You might like him even if he were not paying you by the an hour for your services. Nevertheless, your evaluation of his personality does not belong in the middle of this memo. That is true even though it makes the point that Mr. Bananaberry's mood rings are effective.
On that point, what is the relevance of the effectiveness of the mood rings to the central premise of this memo?
Is it relevant that Mr. Robinson typed his most recent bill on a manual typewriter? Perhaps it is. Perhaps Mr. Robinson has Year 2000 software problems of his own. The relationship is not apparent. If this detail is relevant, its relevance should be explained. If it is not relevant, it should be left out.
In real life, the mailman interrupted the hardware inspection. There is no reason for art to imitate real life in this respect.
Does Myron know what he wants to say? The lack of organization and the persistent intrusion of irrelevant material suggest that Myron is not really sure what is important and what is not. Even if Myron does know what he wants to say, his memo would lead the reasonable reader to conclude that he does not.
What would the reasonable writer, or listener, conclude after hearing Mr. Hall's attorney, Mr. Orr, in the following case:
W.A. BROOKSHIRE (Defendant)
Appellant
No. 29274.
St. Louis Court of Appeals.
Missouri
Dec. 20, 1955.
Motion for Rehearing or to Transfer to
Supreme Court Denied Jan. 13, 1956.
* * * * *
The last remaining point raised relates to the argument of plaintiff's counsel. It is contended that the argument was inflammatory, prejudicial, unethical and untrue. The transcript contains only extracts from Mr. Orr's argument which the defendant claims were prejudicial. After argument of the case here the defendant moved to amend the transcript by filing an additional transcript of the full argument. This additional transcript that he sought to file shows that near the outset of the oratory of which the defendant complains learned counsel for the plaintiff stated:
"You may remember when Christ was preaching the gospel, in the Holy Roman Empire that Julius Caesar was Emperor of Rome. As Christ was making his way toward Rome, the Mennonites and the Philistines stopped Him in the road and they sought to entrap him. They asked Christ : "Shall we continue to pay tribute unto Caesar?" And you will remember, in the Book of St. Matthew it is written that Christ said: "Render ye unto Caesar the things that are Caesar's and unto God the things that are God's."
The Holy Roman Empire did not come into existence until about 800 years after Christ. Julius Caesar, who was never Emperor of Rome, was dead before Christ was born. Christ was never on His way to Rome and the Philistines had disappeared from Palestine before the birth of Christ.
The Mennonites are a devout Protestant sect that arose in the Sixteenth Century A.D. This phrase is noteworthy only because of the ease with which the speaker crowded into one short paragraph such an abundance of misinformation. It is not, however, even pendulously attached to the argument following, which deals with taking from Brookshire and rendering unto Hall.
C. Mechanics of Legal Writing
1. Capitalization
Practitioners generally should follow rule 8 on matters of capitalization, with the following modifications and additions:
- (a)Court.
In addition to capitalizing "Court" when naming any court in full or when referring to the U.S. Supreme Court, practitioners should also capitalized "Court" in a court document when referring to the court that will be receiving that document:
In Brown v. Board of Education the Court relied heavily on social science data.
The Court of Appeals for the Ninth Circuit held otherwise.
This Court has already ruled on Defendant's Motion to Dismiss.
But:
The court in Watkins clearly was trying to distinguish earlier precedent leading in the other direction.
-
(b) Party designations.
Capitalize party designations such as "Plaintiff," "Defendant," "Appellant," "Appellee," and so forth when referring to parties in the mater that is the subject of the court document or memorandum:
Plaintiff herein responds to Defendant's baseless allegations of misconduct.
Appellees claim that this line of reasoning applies to the instant case as well.
But:
In that case, which has since been seriously undermined, the plaintiffs alleged that the defendant acted in bad faith.
-
(c) Titles of court documents.
In a court document or legal memorandum, capitalize the titles of court documents that have been filed in the matter that is the subject of the document. Do not capitalize a reference to a court document by the generic name of the document rather than by its actual title or a shortened form of its title:
In their Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss, Plaintiffs argue that Defendants are strictly liable for Plaintiffs' injuries. Plaintiffs further claim in their Memorandum in Opposition that there is ample case law on their side.
For all the above reasons, Appellant's Petition for Rehearing ought to be granted.
The Court's Order of May 7, 1990 directs Plaintiffs to cease widget production immediately.
But:
Defendant's responses to the first set of interrogatories were filed on January 6, 1987.
There is no doubt that the initial temporary restraining order was within the bounds of the Court's discretion.
The Bluebook: A Uniform System of Citation, p. 17.
2. Numbers
Spell out numbers when the numbers can be written in one or two words.
Be consistent, never spell some numbers out and use numerals for others in the same sentence, especially when the numbers are parallel. You may, however, combine numerals and number words in very large numbers (e.g. "8.6 million").
Never begin a sentence with a numeral.
Always use numerals for dates.
3. Punctuation
Commas
One of the most misused types of punctuation is the comma. Here are four "Comma Laws" to keep in mind.
- Insert a comma between coordinating conjunctions and independent clauses.
Examples of coordinating conjunctions are:- and
- but
- for
- nor
-
After using a long dependent clause, insert a comma before a subsequent
independent clause.
-
Use a comma before the word "and" in a serial list.
According to Maggie, this rule is in a constant state of flux. I recommend you pick either way, and then be consistent when you apply your version.
- Nonrestrictive clauses should be separated from the remainder of the sentence by using commas. Restrictive clauses should be not separated from the remainder of the sentence with commas.
As for any other punctuation usage, we recommend that you invest in a good reference book and refer to it often. Even when you think you know the correct usage of punctuation, check the book.
Quotations
Quotations can be summed up with three simple rules:
- Remember to place ending punctuation inside quotation marks, such as a period
or question mark, as well as commas. A lot of times, this doesn't look right because the
punctuation has no reference to the quoted material. I don't get it either.
- When quoting 50 words or more, indent the quote and do not use quotation marks.
- Only use quotation marks when you are quoting someone or a passage from a book, or are attempting to distinguish a word from the rest of a sentence.
Do not, however, use quotes around words for no particular reason. I see this most often in advertisements:
Baggy Pants by Susie ZZZ Air Service
"The Pants that Fit"
"We're the Best"
There is absolutely no valid reason to place quotation marks around either of those statements. I doubt that either Susie or ZZZ Air Service is actually quoting someone, or that the quotation marks signify a term of art.
Apostrophes
Apostrophes have two functions:
- Make a word possessive:
Jim's doll.
-
Indicate missing letters, as with contractions:
"Let us" becomes "let's";
"1998" becomes "'98"
'However, DO NOT use an apostrophe to make a word plural!! (Can you tell this is one of my biggest pet peeves?)
Learn to use other punctuation effectively, such as colons, semicolons, and dashes. It will give you an opportunity to vary the look and feel of your Briefs.
Legal citations have a unique format, which is explained in The Blue Book. Therein, you will also find the proper citation format -- which includes punctuation as well as font attributes -- for cases, legal authority and various types of reference publications.
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