Author Topic: Legal Drafting Primarily  (Read 18 times)

Offline Nahid Afreen

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Legal Drafting Primarily
« on: August 10, 2018, 04:38:07 AM »
I. Legal Drafting

Legal Drafting, also known as Legal writing is a type of technical writing used by lawyers, judges, legislators, and others in law to express legal analysis and legal rights and duties. Legal writing in practice is used to advocate for or to express the resolution of a client's legal matter.

II. Distinguishing features
a) Authority
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. 

b) Precedent
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.

c) Vocabulary
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.   Quotidian 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.

d) Formality
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 your 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 tool shave 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. 
Nahid Afreen
Assistant Professor
Department of Law (FHSS)
Daffodil International University,
Advocate, Supreme Court of Bangladesh