Effective Legal Writing: Tips and Techniques, Study notes of Law

Download Effective Legal Writing: Tips and Techniques and more Study notes Law in PDF only on Docsity! CHAPTER 8 General tips on legal writing As the previous chapters have discussed, a good, first-class law essay presents clearly identified legal authority through sophisticated and well-organised legal arguments. Although the CLEO method of essay writing does not offer instruction on the content of the law, it provides you with an effective means of conveying your knowledge of the substance of the law and thus constitutes a substantive, rather than merely stylistic, writing tool. However, as has been mentioned before, law is as much about style as it is about substance. How you say something affects how the reader or listener perceives your argument. People will make judg- ments about the quality and merit of your legal thinking based on elements that have nothing to do with the content of your writing. If you doubt this is the case, think about your most recent trip to the bookshop or library. When you’ re browsing for something to read, do you pick up the book that looks crisp and pristine, with clean, white pages and impeccable type, or do you naturally gravitate towards the one with a bent corner, faded printing and crooked lines? When you scan a newspaper rack, looking at headlines, do you trust the truthful- ness of the publication that reads, ‘Prez Sez, “We Want More!”’ more or less than the one that reads, ‘Union Leader Seeks Wage Increase’? Chances are, you will find the latter more persuasive and informative (though perhaps less colourful), not only because it uses longer words (more on that later), but because it appears to be more objective and uses proper spelling and grammar. You know that the first paper is misspelling the words ‘President’ and ‘says’ on purpose, but doubtless there have been other occasions when you have found errors in news- papers, books, letters or advertising materials. In all honesty, haven’t you felt just the slightest bit smug when you discovered another person’s mistake? A bit superior perhaps? Maybe a bit disdainful that the other person either didn’t know better or didn’t care enough to check his or her work? CHAPTER 8 General tips on legal writing As the previous chapters have discussed, a good, first-class law essay presents clearly identified legal authority through sophisticated and well-organised legal arguments. Although the CLEO method of essay writing does not offer instruction on the content of the law, it provides you with an effective means of conveying your knowledge of the substance of the law and thus constitutes a substantive, rather than merely stylistic, writing tool. However, as has been mentioned before, law is as much about style as it is about substance. How you say something affects how the reader or listener perceives your argument. People will make judg- ments about the quality and merit of your legal thinking based on elements that have nothing to do with the content of your writing. If you doubt this is the case, think about your most recent trip to the bookshop or library. When you’ re browsing for something to read, do you pick up the book that looks crisp and pristine, with clean, white pages and impeccable type, or do you naturally gravitate towards the one with a bent corner, faded printing and crooked lines? When you scan a newspaper rack, looking at headlines, do you trust the truthful- ness of the publication that reads, ‘Prez Sez, “We Want More!”’ more or less than the one that reads, ‘Union Leader Seeks Wage Increase’? Chances are, you will find the latter more persuasive and informative (though perhaps less colourful), not only because it uses longer words (more on that later), but because it appears to be more objective and uses proper spelling and grammar. You know that the first paper is misspelling the words ‘President’ and ‘says’ on purpose, but doubtless there have been other occasions when you have found errors in news- papers, books, letters or advertising materials. In all honesty, haven’t you felt just the slightest bit smug when you discovered another person’s mistake? A bit superior perhaps? Maybe a bit disdainful that the other person either didn’t know better or didn’t care enough to check his or her work? General tips on legal writing ® If there is one thing you do not want to do asa lawyer, it is to make the reader of your work feel either superior to or disdainful of you. You want to appear clever, diligent and infallible: certainly not the kind of person who is likely to make a mistake on any level. Someone who is too harried or careless to check his or her spelling and grammar may very well be the kind of person who is too harried or careless to check that a case or statute is still good law. If your reader doesn’t trust you, he or she may be more inclined to double-check or argue with points that might otherwise have passed muster. To avoid giving the impression of someone who is inclined to err, you need to make sure that your writing style is crisp and professional and that your use of language is correct at all times. Unfortunately, many people — students as well as teachers, lawyers and other well-educated professionals - do not know what good writ- ing or good grammar is. In many ways, law students cannot be blamed for not knowing the basic rules of grammar, since it is a common assumption that good writing ‘just comes naturally’ to some people and cannot be taught. In fact, nothing could be further from the truth. While not everyone can become a Nobel prize-winning author, almost everyone can improve his or her writing style by learning a few simple techniques. Therefore, this chapter will discuss the following points: (1) why it is important to have a good writing style; (2) why you need to learn the rules of good writing yourself; (3) why you should work to develop that style now; and (4) what constitutes good legal writing. The chapter will conclude with a series of self-tests and exercises to help you overcome any problem areas. 8.1 The importance of good writing There are two very good reasons for writing correctly. First, by so doing, you will advance your own career. Think about it. Your written work product is aimed toward a very small, very discriminating audi- ence. Almost every time you set pen to paper (or fingers to keyboard), your professional reputation is on the line. For example: ° If you are a student, your work is going directly to tutors or examiners who will (1) write the job references and (2) award you the class markings that will affect your job prospects. ° If youare a solicitor, your work is going directly to a partner, a peer, aclient, the court or your opposite number at another law firm. @ covers suggested revisions. Because most people know that an error can creep into their work at any point during the rewriting process, they often don’t run the computer checking programs until the very last minute. Unfortunately, if lots of errors are found, you may not have time to correct them all. If you make fewer errors during the writing process, there will be fewer to correct at the last minute, thus improving the quality of your final product. Therefore, it is up to you to learn how to write well. You cannot rely on others, nor can you rely on computers to check your work for you. You should seek feedback from other people and run a spell and gram- mar check on your computer by all means, but you shouldn’t expect them to do the hard work for you. The hard work is yours alone. 8.3 The need to develop a good writing style now You may admit that there are good reasons to develop a good writing style once you enter the professional world, but why work on acquir- ing it now? Haven’t you enough to do, learning the substantive law? Quite simply, there’s no time like the present to learn new skills. In fact, university and professional courses are the best time to work on your writing style, since you are not under the same kind of pressure that you will be under in professional practice. Pupillages and trainee- ships are notoriously difficult, and you will be constantly scrambling to learn new skills and satisfy the demands of your principals and pupil masters. Feedback on your work is even more rare than it is in the academic context. Time is at even more of a premium. Because it takes time and practice to acquire a good written style, you should start ingraining these habits into your routine now. Students are expected to make errors, since there is no other way to learn; profes- sionals, however, are expected to have mastered these skills already and can damage their careers if they make too many basic mistakes. As you consider how to prepare for life after university, consider this: for the most part, trainee solicitors and pupil barristers are considered to be professionals rather than students, despite the legal profession’s claim that traineeships and pupillages are an extension of the learning process. Many trainees and pupils feel constantly under scrutiny, as if they are on a one- or two-year interview. Although one would hope that you would find your pupillage or traineeship educational, you will be highly focused on learning vocational skills rather than on the basics of legal writing. Those skills you should know already. For those of you who are more mercenary, remember that people who have a good writing style get good marks on their university and vocational courses, and people who get good marks get good jobs. General tips on legal writing ® Law is about persuasion as much as it is about content. The art of persuasion involves getting the reader on your side and demonstrating the ease and logic of your position. If you confuse the reader in any way or make it difficult for the reader to follow your thoughts, either through the introduction of difficult concepts, illogical structure or awkward language, you cannot communicate, let alone persuade. 8.4 The elements of a good legal writing style Good writing consists of two basic elements. First, there are the manda- tory elements of style: grammar, punctuation, spelling. You cannot consistently break mandatory rules and hope to be considered a good writer. Second, there are the discretionary elements of style: organisa- tional structure, word choice, pacing. While there is a significant amount of variation in how one approaches discretionary aspects of style, deviating too far from the norm can be distracting and therefore undesirable. This is particularly true in legal writing, which is highly conventional. We will begin with a discussion of the mandatory elements of style before turning to the discretionary ones. 8.4.1 Mandatory elements of style Good grammar is the key to good communication. While not every- one can enunciate the rules of grammar, people become confused when the rules are not followed. Grammar is often absorbed sublimi- nally rather than taught formally, at least in the United Kingdom. Other nations take a more rigid approach to the acquisition of language and teach the rules of grammar from an early age. However, just because British schools don’t focus on grammar doesn’t mean that those rules don’t exist or that they do not facilitate understanding. Consider the following text, for example. EXAMPLE Ethan borrowed Andrew's coat and scarf one winter day, but didn't return it. He became quite angry when the holidays were coming and everyone left university to go home. He rang Ethan, but he had already gone, along with his things. This example does not illustrate all possible grammatical errors, but it demonstrates how improper use of language both grates on one’s nerves and leads to confusion. In the first sentence, you immediately @ covers see that ‘it’ is incorrect. If the writer means both the coat and scarf, the word ‘them’ should be used. If the writer means either the coat or the scarf, then the item should be clearly identified by using the noun. The second sentence contains a lack of clarity regarding what is meant by ‘he’. Because Ethan was the subject in the first sentence, one might think that ‘he’ means Ethan. However, ‘he’ might also refer to Andrew, who is the last person mentioned in the preceding sentence. From the context of the second and third sentences, it becomes apparent that ‘he’ is Andrew. The use of ‘his’ in the third sentence is equally confusing — it could mean that Ethan has left with Andrew’s things (meaning the coat and scarf, presumably) or that Ethan has left with Ethan’s things. As this example shows, major misunderstandings can occur as a result of minor errors. Although most law students have a relatively strong intuitive grasp of the rules of grammar, many people can use a few tips regarding common problem areas. This chapter, therefore, will focus on those basic areas of concern. However, the following discussion is by no means comprehensive, and if you want more detailed instruction in English grammar, you can refer to one of the many books dedicated to that subject. Time spent studying the art of writing is never wasted. We will now consider several basic problem areas concerning the following: © parts of a sentence; © constructing a sentence; © subject-verb agreement; * verbs and verb phrases; and © punctuation. a) The building blocks: parts of a sentence To discuss the rules of grammar, we need a common vocabulary. Here are a few terms that you may know as well as a few that you may not. Noun A person, place or thing Proper Noun The actual name of the person, place or thing Pronoun A reference to a proper or common noun, ie, ‘he’, ‘she’ or ‘it? Adjective A word modifying (describing) a noun Verb A word showing action Adverb A word modifying (describing) a verb (an adverb usually ends in ‘-ly’ - for example, ‘slowly’ or ‘coldly’) Gerund A verb form ending in ‘-ing? that stands in for a noun — for example, ‘my understanding of the situation’ contains a gerund General tips on legal writing © Sometimes people realise that two clauses are independent and therefore can stand alone. Thinking they don’t need an ‘and’, they simply slip in a comma as follows: John threw the ball, Bob dodged the tackle. This technique’ leads to a run-on sentence - in other words, a sentence which continues on after its logical end. It would be better to use the ‘and’ that was used in the first example or simply use a full stop and start a new sentence. John threw the ball. Bob dodged the tackle. While the meaning in this example is relatively clear either way, due to the extreme simplicity of the sentence, think about a more complex example using legal terms: The contract between the parties does not provide for a modifica- tion in terms except by written agreement between the parties, no such written agreement exists here. Everything is correct except for the misuse of the comma. Replace it with a full stop or semicolon and all will be fine. Sometimes you will experience the reverse problem — creating a sentence that is incomplete. Such partial sentences are called sentence fragments and lack a necessary element suchas a subject, a verb or an object. For example, the following phrase lacks a subject: Threw the ball. (verb) (object) While some types of sentences can have an implied subject (for exam- ple, the imperative tense, which commands an implied subject to do something - ‘Throw the ball!’), most sentences require a subject. Other errors occur when you use a verb that requires an object to make sense. For example, the following sentence is incomplete: Susan met. (subject) (verb) The verb ‘to meet’ requires an object to make sense - you must meet someone. Technically, this is the difference between a transitive verb (which is a verb which transfers its action to an object) and an intran- sitive verb (which can stand on its own). Some verbs can be both transitive and intransitive, depending on the circumstances. Check a + You could classify this example as either a run-on sentence or a comma splice, which is discussed below. @ covers WRITING TIP eS Be particularly careful when you begin a sentence with ‘which’ or ‘that’. dictionary if you’re unsure whether the verb you’re using requires an object or not. Sentence fragments can be quite long and can thus look like proper sentences. However, a fragment is often introduced by a word, such as ‘which’ or ‘that’, which is normally used to introduce a descriptive clause. For example, the second sentence in the following excerpt is a fragment: Numerous errors exist in this contract, stemming from an improper application of the Sales of Goods Act. That resulted when the parties attempted to anticipate every possible circum- stance. Instead, they should rely more on the Act. It looks as if all the elements of a sentence exist — subject (parties), verb (anticipate), object (the rest of the sentence). However, the phrase cannot stand alone - in this case, the word ‘that’ is describing the improper application of the Act, rather than the numerous errors in the contract. To correct the error, the author needs to make that con- nection explicit, either by amending the fragment so that it can stand by itself (for example, saying, ‘The improper application occurred when ...’) or tacking it on to the previous sentence (for example, saying, ‘... Goods Act that resulted when the parties ...’). As it stands, the phrase is improper. Of course, there are instances where you can begin a sentence with ‘that’ - for example, when ‘that’ refers to a noun or concept described in the previous sentence. Capital punishment is morally wrong. That has been accepted by jurists in many nations. ‘That’ may also describe a noun acting as a subject. That party was dull. You may also begin a sentence with ‘that’, ‘which’ or a similar word if you then follow that dependent clause with the noun that it modifies or if the clause itself stands as a noun. For example: That reform is necessary is an idea whose time has come. Notice, however, that such phrases are awkward and wordy. You can write much more clearly and powerfully if you cut straight to the important point: ‘reform is necessary’ or ‘reform is an idea whose time has come’. ©) Subject-verb agreement Everyone knows how to conjugate a verb. For example, the verb ‘to be’ is conjugated ‘I am’, ‘you are’, ‘he is’, ‘we are’, ‘they are’. In the abstract, General tips on legal writing ® you would never try to say ‘I are’ or ‘we am’. You know that when you have two subjects, you use a plural verb: for example, ‘Joanna and Andy are outside’. When writing, however, you can sometimes become confused about how many subjects relate to the verb. Often, the problem occurs when you have a descriptive phrase that ends in a noun with a different number than the noun which relates to the verb. Because the last noun is closest to the verb, you think that you should conjugate the verb according to what would be called for by the last noun. For example, you might want to write: A group of birds fly over the lake. Here you are conjugating ‘fly’ to correspond to the plural ‘birds’. In fact, you should write: A group of birds flies over the lake. The noun ‘group’ is the subject of the sentence. You could take ‘of birds’ out of the sentence completely and say, ‘A group flies over the lake. You cannot say, ‘A group fly over the lake.’ ‘Group’ is a singular noun, ‘fly’ is a plural form of a verb. Of course, you could avoid the potential for confusion by saying, ‘Birds fly over the lake’. What you cannot do is use the first example, since it violates the rule that the verb should match the subject in number. Lots of confusion exists concerning collective nouns. For example, the words ‘audience’, ‘team’, ‘staff’ and ‘council’ describe groups but are themselves singular. You will therefore need to use a singular verb, no matter how many objects exist in any descriptive phrase that follows. Sometimes the convention as to whether a noun is singular or plural will depend on whether the speaker is using American or British English. If in doubt, change the sentence structure to avoid the problem. You may con- sider ita minor matter, but you don’t want to run the risk of violating the one linguistic rule that your reader holds dear to his or her heart. Another area of confusion involves sentences that use ‘either/or’ constructions or pronouns that appear to be of one number, but are classified as another. Just remember: Either X or YS Neither A nor BS Everyone Anyone No one (or none) Requires singular verb 5 Where X and Y are both singular nouns. If one noun is singular and one is plural, conjugate the verb to correspond with the noun which appears closest to the verb. © Again, where A and B are both singular nouns. If one noun is singular and one is plural, conjugate the verb to correspond with the noun which appears closest to the verb. WRITING TIP eC Often the easiest and best solution to a grammatical problem is simply to change the sentence structure. @ covers clauses as close to the words they modify as possible. These two sen- tences put the phrases containing the participles in the wrong place, thus altering the meaning of the sentences. If we put the participles in their proper place, all becomes clear. My sons watched the cows enjoying their cud. Eustace smelled the fragrant apples, rotten to the core. Sometimes you will need to correct a misplaced modifying clause by including additional words or altering the sentence somewhat, but if you keep to the rule of putting modifiers as close to the word which they modify as possible, you will avoid most errors. e) Punctuation A number of common errors fall under the heading of punctuation. While some of these errors may be more confusing to the reader than are others, all violate the technical rules of grammar. Capitalisation Capitalise only those words that appear at the beginning of sentences and proper nouns, ie formal names of people and places. For example, capitalise ‘Paris’ and ‘Oxfordshire’ but not ‘my neighbourhood’. Similarly, capitalise ‘Uncle Joe’ or ‘Mum’, but not ‘my mum’ or ‘my uncle’. A good rule of thumb is that if you have to put a possessive word (my, her, their) in front of a noun, it’s not a proper noun.? Titles are another kind of word that are often wrongly capitalised. Ifa title is used as acommon noun describing the position, rather than describing the person, then don’t capitalise it. For example: L interviewed the president of the company. Linterviewed President Smith of Acme Plumbing Company. Students commonly make similar errors with words like ‘court’ and Sjudge’. If you are identifying a particular court or judge by name, capitalise both words. If you are not naming someone in particular, don’t capitalise the term. For example: Timothy McMurry was a judge in the District Court. The courts are under-funded, according to prominent judges. Interestingly, the Court of Appeal is not the highest court in the land. ° You could say ‘my Uncle Joe’ if you were using ‘Uncle Joe’ as his name, but you would not say ‘my Uncle, Joe Smith,’ where the word ‘uncle’ described a relationship rather than a name. In that circumstance, you would say, ‘my uncle, Joe Smith’. General tips on legal writing @ The point is, do not randomly capitalise nouns. Not only is it annoy- ing and incorrect, it can cause problems in legal practice, where capitalised words are often used as defined terms. Reading a lot of contracts will start to confuse your eye, and you may start to think that terms like ‘net profit’ and ‘managing agent’ are always capi- talised, just because you see them capitalised in the documents you read in your work. Don’t be fooled. Those terms would not be capitalised if they had not been defined in the contract. If you begin capitalising terms unnecessarily, you may be creating an ambiguity that could lead to litigation. In the course of your studies, you may find that some law books or journals capitalise words such as ‘State’ in violation of the rules of grammar. The editors of those publications have made a decision to capitalise some words to indicate that they are being used as legal terms. While such capitalisation is unneccessary and technically incorrect, the convention is accepted by many people in academia. Nevertheless, you should try to avoid purely random capitalisation in your written work, for the reasons stated above. If, for some reason, you are unclear about whether to capi- talise something, do not try to hide your confusion by alternating between capitalising the term and not capitalising it. Be consistent. The only exception is if you are at one point discussing a term that is not being used as a proper noun - president, for example - and then go on to refer to President Smith. In that instance, you capitalise the word in one context but not the other, precisely because it is being used differently. Apostrophes Apostrophes either denote a possessive or stand in the place of a missing letter in a contraction. A possessive is a word that shows ownership. Not all possessives use an apostrophe — for example, ‘hers’, ‘his’ and ‘theirs’ do not - but most do. Usually, when you have a noun, suchas the name of a person or of a company, you make that noun possessive by adding an apostrophe followed by an ‘s’. Irving’s car Bumpstead Council’s land If a noun is plural, in many cases it will already end in ‘s’. In those cases, retain the ‘s’ of the plural but add an apostrophe after it. a student's book but all the students’ book (one book in both cases) a student’s books but all the students’ books (many books in both cases) WRITING TIP eS Avoid random capitalisation. @ covers The noun following the plural possessive may be singular or plural depending on the context: for example, if you have several poodles, all of whom shared one leash, you would have ‘the poodles’ leash’.!° Another common mistake concerning possessives involves proper names which end in ‘s’ and which need to be made into a possessive. In this case, you add an apostrophe and an ‘s’, rather than just an apostrophe.'! Jones’s newspaper Christopher Columbus’s ship This convention is waning in the popular media, however, and has almost disappeared in the United States, so you may not see the ‘s’ apostrophe ‘s’ even though grammarians insist on its correctness. Nevertheless, you should adhere to the traditional approach on the assumption that the law will be among the last fields to embrace linguistic change. Apostrophes are also used to replace missing letters in contractions. A contraction is a shortened word that takes the place of two words. For example: do not becomes don’t he would becomes he'd Iwill becomes Pil There are too many possible contractions to list here, but you under- stand the concept. The one exception to the rule involves the contraction and the possessive of ‘it’. it is becomes it’s it (possessive) becomes its The error is common but quite confusing. Be sure that you do not mistake the two words. There is also confusion about the contraction and possessive of ‘who’. Please note: "© Single and joint possession of single or joint items can be tricky, For example, ‘Hiram and Mary's farms’ refers to several farms owned jointly by Hiram and Mary. ‘Hiram’s and Mary’s farms’ refers to separately owned farms. Seldom will you have to get into this kind of detail, so don’t worry about it too much, Remember, if a phrase sounds confusing or is too difficult to figure out, you can always change the sentence structure to avoid the problem altogether. " The exception is when the penultimate syllable ends in an ‘s’, in which case use only an apostrophe to form the possessive singular: Jesus’ robe, Moses’ tablets, Ulysses’ journey, Onassis’ yacht. General tips on legal writing @ The court requires the claimant to produce the following items: all personnel records, whether printed or electronic, relating to the defendant; all telephone logs mentioning the defendant by name; all daily calendars for the years 1995 to 2002, inclusive; and all reports produced by the defendant during his tenure at the company. Note that, in this case, you do include a semicolon before the ‘and’ preceding the final entry in the list. You should also use semicolons when you are listing a complex series of items by number. For example: The court requires the claimant to produce the following items: (i) all personnel records, whether printed or electronic, relating to the defendant; (ii) all telephone logs mentioning the defendant by name; (iii) all daily calendars for the years 1995 to 2002, inclu- sive; and (iv) all reports produced by the defendant during his tenure at the company. Shorter lists may use commas instead, but lawyers still tend to use semicolons. The claimant undertakes not to (i) sell, (ii) transfer or (iii) otherwise encumber the property in question until the lien has been paid.'* When commas are used in this way, the convention about the final sequential comma holds true: use it as your style dictates, but be consistent. You may notice that some older judges and lawyers do not use commas when listing a series of items or activities. This is a holdover from older days, when legal convention forbade the use of many types of internal punctuation. It used to be that courts would use internal punctuation to construe the terms of a document in a specific manner and lawyers attempted to evade that sort of construction by elimi- nating punctuation altogether. Such conventions have now largely disappeared, and you should follow the rules of grammar unless otherwise instructed by your employer. Parenthetical information Parenthetical information is that which can be deleted from the sen- tence without destroying the sense of the phrase. Be careful, however — parenthetical information requires either two commas, one on either side of the phrase, or none at all. It is improper to use just one comma unless the sentence begins or ends where the second comma would be. For example: ® You can use or not use numbers in a series like this, as you wish. WRITING TIP eS Do not look to judicial opinions, particularly older opinions, as a guide to proper punctuation. @ covers Hugh, a tall, striking man, entered the room. The judge, surprisingly, ruled for the defendant. The company, by and large, complied with the tax laws. Of course, Frederick was busy washing the windows. Law books, which are more expensive than other texts, can break astudent’s budget. In each of these examples, the phrase set off by commas can be elimi- nated without destroying the meaning of the sentence. Remember, however, that there are some phrases that do not merely describe a quality of a noun or verb but instead positively identify it. An identify- ing phrase should not be set off by commas. To take an earlier example, the following sentence includes a descriptive phrase that can be elimi- nated without damaging the sense of the sentence and therefore can be set aside by commas: Jobn threw the ball, which was coming apart at the seams. If you wish to indicate that John picked one particular ball out of a selection of many, you would delete the comma, writing: John threw the ball which was coming apart at the seams. Introducing quotations Students often have many problems regarding the proper use of com- mas when introducing quotations and speech. Most people know the rule that commas should be used to introduce direct speech. While this rule is most often exemplified in fiction, it can be used in legal writing as well. For example: Lord Murray said, ‘The duty of care was not established by the claimant.’ Note that there is a comma introducing the sentence and that the quote, which is a sentence unto itself, begins with a capital letter. You could also say: Lord Murray disagreed with counsel, saying, ‘The duty of care was not established by the claimant.’ If you were only quoting part of Lord Murray’s statement, you might write: Lord Murray said [that] the duty of care ‘was not established.’ Here the quoted phrase is not a complete sentence and thus cannot support an introductory comma. Note also that the use of ‘that’ is optional: the sentence makes sense with or without it. Some writers General tips on legal writing @ prefer always to use ‘that’ in these sorts of cases, whereas other people are not so strict. Follow the style that is preferable to you, remembering that clarity is your ultimate aim. Do not use a comma following ‘that’, even if the quotation that follows is a complete sentence. For example: Lord Murray said that ‘the duty of care was not established by the claimant.’ The question is whether one should capitalise the first letter of the quoted material, assuming that the first word was capitalised in the original. There is never a need to capitalise the first letter of a quoted phrase following ‘that’, and generally you should not change any aspect of quoted material, including capitalisation and verb forms, unless you indicate the changes with square brackets. Therefore, if the first letter was capitalised in the original and the tense of the verb was something other than what you wanted, you should write: Lord Murray said that ‘[t]he duty of care [was] not established by the claimant.’ By using the square brackets, you indicate that you have altered the original. While the changes are largely cosmetic, you must not take liberties with quoted material. Use ellipses (three full stops (...))!9 if you delete any text, even a single word. Be sure not to change the meaning of the quote through your amendments. You may introduce direct quotations with a colon, although that convention is usually reserved for large blocks of material which are offset by indentations on both the left and right. In such cases, inverted commas are not used, since the colon and indentations signify that a quote follows. For example: A long quotation, usually numbering fifty words or more, is offset by indentations on both sides. This is called a ‘block quotation’. Often the text is single, rather than double, spaced, and is intro- duced by a colon. If the quoted material begins in the middle of a sentence, the lead-in phrase may end in the word ‘that’, followed by acolon, despite the rule that quotations introduced by the word ‘that’ should not be preceded by a comma. Legal practitioners often italicise block quotations to set it off from the rest of the text. Some practitioners also italicise shorter quotations that appear in the text, although the question then arises whether single quoted words require italicisation or not. 5 [fyour sentence ends with an ellipsis, use four full stops (three for the ellipsis and one for the full stop). WRITING TIP eC ‘Make your quotes word perfect. Alter nothing from the original, including the punctuation, without indicating the change. @ covers aspects of each person’s writing style, you will be well on the way to becoming a better writer yourself. Following are a number of suggestions on how to improve your writing. Adopt or discard these suggestions as you wish, realising that none of them reflects a mandatory rule that cannot be broken. For ease of discussion, the advice has been broken down into three major points: * word choice; * sentence structure; and ° formatting. a) Word choice Under the heading of ‘word choice’ lies a multitude of issues, including: ° beginning sentences with ‘and’ or ‘but’; * ending sentences with prepositions; * using gender-neutral language; © using ‘as’ for ‘since’; * using contractions and hyphens; spelling out numbers; © using jargon, acronyms and ‘legalism as opposed to terms of art; © using passive, wordy or verbose language rather than simple, direct phrases; and ° differentiating advocacy from inflammatory prose. ‘We will deal with each of the points in turn. (1) Some grammarians insist that it is technically correct to begin a sentence with ‘and’ or ‘but’. However, many readers find such con- structions sloppy or overly colloquial. If you feel you must begin a sentence with one of these words, do so with the understanding that you may put off at least part of your audience. (2) Just as the beginning of a sentence can cause problems, so too can the end of a sentence. The major concern involves prepositions. While it is perfectly acceptable for novelists and journalists to end sentences with a preposition, lawyers do not have the same freedom. Legal writ- ing remains much more formal than fiction and journalism. When you find yourself faced with a sentence that ends in a preposition, you have three possible solutions: (1) you can place the preposition earlier in the sentence; (2) you can find some phrase to tack onto the end of the sen- tence, thus embedding the preposition in text; or (3) you can rephrase the sentence to avoid the offending construction. For example: General tips on legal writing @ Samuel wondered whom" the letter was from. (ending in preposition) (1) Samuel wondered from whom the letter was.'* (2) Samuel wondered whom the letter was from and glanced at the return address.'* (3) Samuel wondered who wrote the letter.” All of these techniques can work well, depending on the context. For example, while the first option sounds a bit too formal in the context of this simple sentence, it will often be acceptable in legal prose. Similarly, while the third sentence appears the best of the three options in this example, since it is the simplest and most direct construction, there will be times when you want to retain a passive verb form rather than shift to an active verb form. (3) Certain problems associated with gender-neutral language have been discussed in earlier sections concerning subject-verb agreement. Basically, you should not use ‘them’ in reference to an antecedent noun when that noun is singular, even if you do so to avoid using the gender- specific ‘he’. However, you may question the use of gender-neutral lan- guage altogether, preferring to use the simpler and more traditional approach of using ‘he’ or ‘man’ to refer to all persons. In the end, use of gender-neutral language is a matter of style rather than a mandatory grammatical rule. It is not incorrect to use ‘he’ to refer to all persons. Certainly most statutes use ‘he’ to refer to all persons. However, this convention may be changing, since the Lord Chancellor has recently come out in favour of gender-neutral language. It may be that use of the older style will soon be seen as anachronistic. However, as you decide which approach you will use, you should be aware that many people currently become irate upon seeing ‘he’ or ‘man’ to refer to all persons. If your aim is to avoid saying something that would make your reader disinclined towards you and your position, you should avoid gender-specific language. “ Note that the proper word here is ‘whom’, not ‘who’. Generally, you should use ‘whom’ whenever you could use the word ‘him’ (ie to him, from him) and ‘who’ whenever you should use ‘he’. It’s easier to remember this trick if you use male pronouns rather than female pronouns, since the male pronouns demonstrate the he/who, himsvhom parallel most clearly. '5 Although this may sound a bit formal, particularly in the context of this simple sen- tence, you quickly become used to phrases such as ‘from whom’, ‘to whom’, ‘of which’, etc. 6 This example reads somewhat awkwardly due to the simple sentence construction, bur that need not be the case in all circumstances. If tacking on an additional phrase does result in a wordy or unwieldy sentence, however, you should consider using one of the other techniques instead. !” This is perhaps the best option of the three, since it uses a more active and direct verb form rather than a passive verb form. @ covers (4) It is quite common to see people use the word ‘as’ instead of the word ‘since’ or ‘because’. For example: As he was a plumber, repairing the drain was a simple task. While close inspection of the dictionary suggests that ‘as’ may be used in this way, some readers object strongly. Again, if your aim is to avoid alienating your readers, you may want to consider avoiding this type of construction, even if it is technically correct. (5) Once upon a time, contractions were severely discouraged in legal writing. They were considered too sloppy and colloquial for the elevated practice of law, leading lawyers to avoid their use altogether. With the advent of the plain English movement in legal writing, lawyers are free to use less formality in their writing. The extent to which you use contractions in your writing is up to you, but be aware that legal writing still tends to be more formal than other types of communication. Contractions refer to shortened words. However, hyphens can be used to extend the length of words, turning two words into one in order to show how the words relate to one another. These hyphenated words are called complex nouns or complex adjectives. The rules about hyphenation have changed. At one time, it was common to use hyphens to create longer words. For example, people used to write ‘decision- maker’ rather than ‘decision maker’, or ‘sun-dried tomato’ rather than ‘sun dried tomato’. Some words that used to be hyphenated have now become single words: for example, ‘life-like’ is now ‘lifelike’. Although modern usage varies,'* the general trend is to avoid hyphenation of distinct words except to avoid confusion. For exam- ple, there is a significant difference between the phrase ‘man eating tiger’ and ‘man-eating tiger’. Use your common sense and consult a dictionary if you run into trouble. (6) The convention about spelling out numbers is little-known out- side publishing circles, but many readers can sense an error, even if they cannot say what the rule is. In all cases, you should always spell out numbers zero through ten. Some grammarians say that you should spell out numbers zero through one hundred, but there is not as much consensus on that particular convention. Unless you have a long series ifths, etc) and rankings (first, second, twenty-seventh) are best in spelled-out form. of numbers, fractions (three-quarters, two-! However, if you refer to several different numbers in the course of a discussion, you should be consistent: either spell out all of the numbers or none of them. The choice of whether to spell out or write 'S Asis often the case, differences exist between American and British usage regarding spelling and hyphenation. General tips on legal writing @ EXAMPLE Jones writes that the royal prerogative is an outdated concept that should be replaced with a written code outlining the executive power, whereas Littleton advises caution in any reform attempts. Jones's position is unrealistic, given the British animosity towards codifying large swathes of the law, whereas Littleton's view is too cautious. | would recommend an intermediate step, wherein reform would progress piecemeal by codifying individual aspects of the prerogative one bit at a time. In the above example, the ‘I would’ sentence could be changed to ‘A better solution would be to adopt an intermediate course, wherein (etc)’, thus avoiding the use of ‘I’ altogether. However, this is one of the few examples where you can adopt the first person without weakening your argument. You can also slow down your essay by using too many words. Try to cut down the numbers of words you use and use short, simple sentences. One practitioner, well known for his powerful written com- munication, advocated the KISS rule: Keep It Simple, Stupid. Don’t try anything fancy. Just say what you have to say and move on. In fact, experienced examiners know that students often use passive, wordy prose when they don’t really know what they’re saying. Someone who is overflowing with things to say writes in a tight, energetic manner. If you find yourself becoming passive and wordy in your prose, stop. Do you really know what you’re trying to say? If you don’t, neither will your reader. Sort yourself out before continuing to write. A short essay that speaks directly to the question is often far better than a long, meandering discussion that never really gets to the point. Often prose can be tightened up by using an active, rather than passive, voice, as described below. Also, instead of characterising something or some action by using the verb ‘to be’ plus a gerund (a verb acting as a noun) or an adjective, try using the gerund in its verb form or turning the adjective into an adverb. For example: Mark is advocating reform. Mark advocates reform. Jennifer was nervous when writing her examination. Jennifer nervously wrote her examination. Essays also become wordy and vague when the writer spends too much time characterising an action or event rather than describing what occurred and why it is important. For example, a student may classify a particular case as ‘radical’ or ‘ground-breaking’. These are empty phrases that add little to the discussion: unless those adjectives WRITING TIP eS Show, don't tell, in your writing. Use strong verbs and examples instead of adjectives and adverbs. @ covers are immediately followed by the word ‘because’, you should eliminate them from your essay. Even worse is the word ‘interesting’, which has been so overused that it has lost its descriptive force completely. Your characterisation of the case, statute or event is not what is important: it is the content and/or impact of the case, statute or event. Move past vague, introductory language and say why you are discussing the mat- ter. If you show your readers what you’re thinking, they will form the same conclusion that you have. If you do not show them what you’re thinking, they will not believe or understand your characterisations. Sometimes passive language results when a writer uses a phrase that is accurate but that can be replaced by shorter words or phrases. For example, consider replacing the italicised words with the phrase following in bold: in order to, for the purpose of, with a view to Use to as a consequence, for the reason that, on account of, on the grounds that, in light of the fact that Use because in the event of, in case of Use if in spite of the fact that, irrespective of the fact that Use although or even though notwithstanding the fact that Use even if there can be little doubt that, it is indubitable that Use clearly or undoubtedly2° until such a time that Use until Other phrases can be deleted altogether without losing the sense of the sentence. For example: One should note that criminals often regret their actions. Criminals regret their actions. 2 Be aware that many writers believe that the use of the word ‘clearly’ or ‘undoubredly” actually signals a fact or opinion that is anything but clear or undoubted. It is always better to show the reader something rather than tell the reader something. If the fact or opinion is clear or undoubted, demonstrate that with legal authority or a summation of the facts. Showing your reader how you have arrived at your conclusion is more powerful than mere- ly assuring him or her that you are correct. Remember, your opponent is making precisely the same assurances in return. General tips on legal writing ® The fact was that Simon didn’t want to go cycling that day. Simon didn’t want to go cycling that day. Common offenders of this rule are: one should note that it is important to note that the fact that it is true that There may occasionally be times when you need or want to use these phrases to add emphasis or to alter the tempo of the paragraph. Use them sparingly, however. Finally, some people think that unusual, literary or polysyllabic words impress readers and demonstrate greater erudition and knowl- edge. Not true. Often big words slow the pace or confuse the meaning. Remember KISS - Keep It Simple, Stupid. Don’t use a long word if a short one will do just as well. You can be an effective writer without wearing out your thesaurus. (9) Sometimes the issue is not that a student's prose is too deferen- tial or wordy, it is that it is too one-sided. Strong language is fine as long as you do not exaggerate the claims that you can make on either the facts or the law. Learn to differentiate between advocacy and inflammatory prose. This is a problem that more often arises in pro- fessional practice, particularly if you are involved in litigation or dispute resolution, but sometimes students think that being persuasive means ignoring or belittling an opponent’s argument. Instead, you should strive to make your case as persuasively as you can while still retaining some objectivity. If the other side has a valid point to make, ided, you will fail to persuade your reader. Readers tend to trust objective analysis you must acknowledge it. If you appear to be too one- more than one-sided rhetoric. You need to be sure to address any gaps or weaknesses in your own arguments in addition to dealing with any valid points that can be raised by your opponent. You can persuade a reader to adopt your point of view by demonstrating how your argument is either more logical, more just or more in line with the authorities. Dismissing your opponent’s argument out of hand or failing to address it at all carries no persuasive value. When offering advice to clients in professional practice, a lawyer must recognise points of weakness as well as points of strength. You need to do the same in your essays and examinations. Another thing to look out for is excessive characterisation of posi- tions, facts or legal arguments. As mentioned above, it adds very little to say that one of your points is ‘devastating’ or ‘fatal’ to your opponent if WRITING TIP eS Don't overuse the thesaurus. Remember KISS. © cers of your discussion and thereby increase the possibility of your receiving a higher mark. When you begin a new paragraph, either skip a line (if you intend to place the first word flush against the left margin) or indent the first word one tab (usually five spaces). If you just use a hard return and then begin your next sentence flush left, it is difficult for the reader to see that you have begun a new paragraph, particularly if the last sentence of your previous paragraph runs close to the right margin. You may think this is a minor point, but if the purpose of writing is to communicate your ideas effectively to your reader, then you want to do everything possible to increase the reader’s under- standing. Breaking the text up into different paragraphs is one of the primary ways of facilitating communication in written prose, since a new paragraph signals a new idea. Don’t lessen the effectiveness of your organisational structure by hiding the beginnings and endings of your paragraphs. Doing so will only confuse the reader and drop your marks. The other formatting point concerns the end of sentences. Whenever you end a sentence, follow it with two spaces, not one. The additional white space helps your reader scan the page more easily and stops the text from looking too cramped. 8.5 Writing techniques: self-examination You may wish to run through the following self-examination to see how well you know the mandatory and discretionary rules of writing. The answers may be found following the quiz. Part one Select the correct answer from the options shown. 1. The contraction of ‘it is a. its b. it’s c. its’ 2. The possessive of ‘they’ a. there b. they’re c. their 3. Assentence fragment can be described as: a. a sentence without a verb b. asentence without a noun c. a sentence without an object 10. d. e. General tips on legal writing @ none of the above all of the above Acomma splice results when: a, 2 . you use one comma instead of two to set off parenthetical information . you join two stand-alone sentences with a comma . you use acomma when you should use a semicolon |. you introduce a quotation with the word ‘that’ followed by a comma You should end a sentence with a preposition: c. d. . sometimes b. always never it depends A dangling participle is incorrect because: a. b. c. d. a sentence should never end in a participle it modifies the wrong part of the sentence both (a) and (b) neither (a) nor (b) In legal writing, you should use contractions: a. b. c. d. sometimes always never it depends Which of the following numbers should be spelled out in text? (circle all that apply) a. b. c. |. 1/2 f. g d e. h. 1,000,000 102 7 17 3/16 3rd 14th You may use a colon: a. b. c. d. to introduce a list of items to introduce a quotation both (a) and (b) neither (a) nor (b) Which of the following terms should be capitalised? (circle all that apply) a. President Fox of Mexico © cers 1. 12. 13. 14. 1S. 16. 17. b. the President of Acme Food Co, Ltd. . Edith’s Aunt |. the Court of Appeal . the Local Court . the Agreement between Supply Co. and Builder’s Co. (the “Agreement’) g. a Legislative decision mean You should use the passive voice: a. to sound more lawyerly b. to draw attention to the person doing the action c. to make your prose tighter and more energetic d. to focus the reader’s attention on the act itself Use rhetorical questions only when: a. you are sure the reader knows the answer b. you follow them with words such as ‘because’ or ‘due to” c. you want to emphasise a certain point d. you need to speed up the pace of your writing A block quotation does NOT: a. have fewer than 50 words b. have quotation marks (inverted commas) at the beginning and end of the quoted material c. have quoted material within the larger quote d. have a colon as its introductory punctuation The word ‘its’ is: a. the possessive of ‘it’ b. the plural of ‘it’ c. the contraction of ‘it was’ or ‘it is’ d. ‘its’ is not a proper word When altering a quotation, you should: a. indicate changed letters or words with parentheses () b. indicate deleted words with ellipses (three full stops) c. both (a) and (b) d. neither (a) nor (b) - you should never alter a quotation Parenthetical information can be: a. set off by two commas b. set off by one comma c. set off without acomma d. none of the above Which of the following is NOT correct? a. agroup of squirrels eats b. Mavis’s apple cart show Catholic unemployment at approximately two and a half times that of Protestants.'> Immigration is another area where religious discrimination arises. In R v Home Department, ex parte Moon, the Court'’ considered the Home Seeretary’s claim that he had denied Reverend'® Sun Myung Moon, founder of the Unification Church (known commonly as the ‘Moonies’), entry into the United Kingdom because:!” the Unification Church, even if recognised as a religious organ- 2° acts to the detriment of 21 2 The Home Secretary considered the need to act in accordance with a isation by the Charity Commissione: the families to whom its members belonged [si wider obligation to respect freedom of expression and freedom of religion but has concluded that in view of the activities of the Unification Church and those of the Applicant as its head,*? the exclusion is justified in the public interest.*4 In the end, Sedley J ordered the Home Secretary to provide reasons for his’’ decision and allow Reverend Moon to respond, noting that ‘it is precisely the unpopular applicant for whom the safeguards of due process are most relevant in a society which acknowledges the rule of law. However, the willingness and ability of the govern- ment to discriminate on the basis of religion, as demonstrated by this cas se, is disturbing.” The UK’s legal position regarding religious discrimination has changed, however, with the enactment of the Human Rights Act 1998. Although the applicability of the Act to private entities is indi- rect only,?* parties involved in disputes in domestic courts”? may now expressly rely on many of the provisions found in the European Convention, including its prohibition of discrimination on the basis of religion. In construing the various rights, courts are to take into account European decisions applying the European Convention. General tips on legal writing @ 15. Does ‘Protestants’ need an apostrophe? If so, where would you put it? 16. Why is this sentence here? Is it necessary? 17. Should this word be capitalised? 18. Should this word be capitalised? 49. Do you need a colon here? 20. Should this term be capitalised? 21. What does ‘sic’ mean and why is it included here? 22. Why are there four full stops here? 23. Is this comma correct? 24, Why are there no closing quotation marks (inverted commas)? 25. Shouldn't this be ‘his or her’? 26. Should there be a case citation here? 27. Would you use the word ‘disturbing’ here? 28. What's missing here? 29. Should this be capitalised? ANSWERS 4. ‘It’ refers to ‘constitution’, not to ‘United Kingdom’, as the author intended. The author will need to rephrase the sentence so that the word ‘it’ refers to the proper antecedent. 2. Itwould be better to refer to specific jurists by name, rather than lump them together. The same is true of the word ‘others’ later in the sentence — the author should try to be specific when referring to commentators. 3. Referring to a specific judge by name demonstrates a very good facility with the materials, but the author has forgotten to name the case itself. © covers 4. The beginning of the sentence (‘The veracity of ... in light of') is technically correct but somewhat wordy. The author should be more direct. 5. Yes. Although the author is referring to a specific court, the word ‘court’ is not being used as part ofa title or official designation. 6. ‘It’ refers to ‘the court in Choudhury’. The phrase is correct and sufficiently succinct to stand as it is. 7. The term is technically correct, but perhaps a bit stited. How might you improve it? 8. The sentence is long but technically correct. Still, it might be better, as a matter of discretion, to break it into two parts, one dealing with practitioners and commentators and the other dealing with the courts. 9. It would be helpful to know which jurists made the claim. 10. The author seems to have chosen this construction to emphasise that Northern Ireland's approach to religious rights is the exception to the general rule. It may also be that the construction was used to give the following sentence the proper antecedent (‘that region’). 11. A specific citation would be helpful but is not necessary, since the provisions are described with sufficient detail for this discussion. 12. Itis unclear what the author means by ‘these admonitions’. 13. No comma is needed here since both verbs (‘be’ and ‘marry’) refer to the same subject (‘monarch’). 14. This sentence does not technically use the passive voice, since something is not being done to someone else. The wordiness is suspect, however, although the author is probably using this sentence construction to demonstrate how recent the change in policy has been. 15. No apostrophe is needed, since the possessive element is shown by the sentence structure: ‘that of Protestants’. 16. The sentence provides a transition from the previous paragraph and is necessary to indicate that a new example is now being discussed. 17. The word ‘court’ should not be capitalised here, since the word is not being used as part of a title or official designation. 48. The word ‘reverend’ should be capitalised, since it is part ofa title. 49. Acolon is necessary here to introduce the block quote that follows. 20. Itis unclear from the quoted material whether the term had been defined earlier in the source material; however, since it is capitalised in the quotation, the author has properly retained the capitalisation. 21. The term ‘sic’ (sometimes italicised as sic) is the Latin for ‘so’ or ‘thus’, and is used to indicate an error that exists in the quoted material. In this case, the verb ‘belonged’ appears to be incorrectly conjugated, but the author properly chose to retain the error with the word ‘sic’ following to demonstrate that the error existed in the original. General tips on legal writing @ 22. The author has used four full stops to indicate the omission of some quoted material (three full stops) and the end of a sentence. 23. The comma is technically incorrect; the sentence should either have no commas or two commas to indicate parenthetical information (one comma appearing here and the other appearing after the word ‘that’. However, the error exists in the original material and is too minor to merit deletion (using an ellipsis for a single comma is unusual) or use of the word ‘sic’. 24. The author did not use quotation marks (inverted commas) because it is incorrect to do so with quote blocks. 25. Although itis wise to use gender-neutral language, there is no need to do so when referring to a known person. Here, the Home Secretary was male and so can be referred to as ‘he’ even if his name is not used. 26. There is no need for an additional case citation, since it is clear from context that the quote comes from the previously cited case. 27. The characterisation of the government's actions as ‘disturbing’ is tricky. Some people would omit the phrase as unnecessary, whereas others would include it, since the basis for the author's conclusion has been made clear. This is one of those areas of discretion where there is no objectively right or wrong approach. 28. It would be nice for the author to slip in a citation to the seminal case on indirect horizontal application (Douglas v Hello!), but it’s not absolutely necessary. 29. There is no need to capitalise the word ‘courts’ here, since the term is acting as a common noun. This concludes our discussion of general tips on legal writing. Although there is a lot of information contained in this chapter, it can all be simplified to two basic rules: (1) Ifyou confuse your reader, you will not win top marks, no matter how brilliant you are. (2 If you can’t figure out what the rules of grammar would require ina particular circumstance or if a certain phrase just looks odd, change the sentence structure. That’s usually the best and fastest solution. There’s no reason why you have to retain your original approach. As mentioned before, there are numerous books on writing, including some concerning legal writing in particular, and you should feel free to consult them if you have further questions. At this point, however, we will turn to the question of how to adapt the CLEO method for use in legal practice.