Quick Guide To Better Legal Writing
Quick Guide To Better Legal Writing
Quick Guide To Better Legal Writing
writing
By Richard Heinrich, Chief Content Officer
Richard is One Legal’s Chief Content Officer, responsible for
editing One Legal’s publications. Before One Legal he spent
several years supporting law firms in the UK as an employee
of the Law Society of England and Wales (the British
equivalent of the ABA).
When he’s not reading and writing about the legal profession,
he’ll often be found in his kitchen cooking English favorites or awake at strange hours
watching football and rugby matches in European timezones.
Remember, we’re here to help. If you’re looking for support with a One Legal filing,
please email support@onelegal.com or call 1-800-938-8815.
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Contents
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Why should lawyers bother to write in
plain English?
As the myth goes, the legal profession’s tendency toward verbosity originated from a period in
English history when legal drafters were paid by the word.
In contrast to the earlier practice of payment by folio (large sheets of paper), which led to
writers using needlessly large handwriting to maximize their income, in the 1600s the English
Parliament considered payment by word to be more reasonable. That’s presumably how it
became standard practice.
Sensing an opportunity, Tudor lawyers wrote in increasingly obtuse language. Hence, several
words in place of one (e.g. using “in the event of” whereas “if" would be more succinct) and the
proliferation of writing in entirely redundant triplicates (“give, devise, and bequeath,” and so on).
True or not, doubtless the legal profession has long had a reputation for wordiness. It has, for
almost as long, also had a campaign for plain English. For example, Thomas Jefferson wrote in
1817: “we lawyers say everything two or three times so that nobody but we of the craft can
untwist the diction, and find out what it means…”.
Arguably, in today’s high-tech world, where legal documents are increasingly likely to be read on-
screen rather than on the printed page, brevity and clarity have never been more important.
What, though, are the actual advantages of writing in plain English? In other words, why bother?
The answer is: only sometimes. Writing in the Michigan Bar Journal, legal publisher Mark
Mathewson explains:
“Legalese may indeed be a necessary evil, depending on what you mean by ‘necessary.’
If you mean that legalese is necessary because your boss will berate you… you may be
right. But is legalese necessary for purposes other than reinforcing the prejudices, and
quieting the fears of your ‘superiors?’ The answer is yes (rarely) and no (usually).”
Mathewson agrees with legal writing guru Bryan Garner, who argues that choosing a
specialized legal phrase rarely makes writing more precise. Only a small handful of non-
simplifiable terms of art (like habeas corpus) are genuinely necessary, Garner says.
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In other words, when legal jargon has an everyday English alternative, the latter ought to always
be preferred.
When it comes to legal professionals, however, there are significant benefits to writing in plain
English.
The Undersigned hereby extends said lien on said property until said indebtedness and
Loan Agreement/Note as so modified and extended has been fully paid, and agrees such
modification shall in no manner affect or impair said Loan Agreement/Note or the lien
securing same and that said lien shall not in any manner be waived, the purpose of this
instrument bring simply to extend or modify the time or manner of payment of said Loan
Agreement/Note and indebtedness and to carry forward the lien securing same, which is
hereby acknowledged by the Undersigned to be valid and subsisting.
Confused? Most readers would be. However, with a few simple edits (and the addition of a
name), it’s possible to maintain the same legal meaning but in a way that is clear to almost all
readers:
Williams extends the lien until the Note, as modified, has been fully paid. The
modification does not affect any other terms of the Note or the lien, both of which
remain in force.
The process of carefully trying to express ideas clearly almost always leads to an improvement
in the substantive content of the document.
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For example, in Kuzmin v. Thermaflo, Inc., (E.D. Tex. May 20, 2009), a judge complained that a
brief was poorly formatted and riddled with spelling errors. The judge concluded that “by
submitting a poorly written brief, the attorney fails the Court as well as the client.” Sometimes,
the court goes further. In Ramos-Barrientos v. Bland (S.D. Ga., Feb 19, 2008) a federal judge
wrote, “enough paragraphs are needlessly verbose, tangled, fractured, and repetitive as to
require corrective action.”
In these extreme cases, a lot of time was wasted, and cases were jeopardized. However, in his
book “Writing for Dollars, Writing to Please,” Joseph Kimble detailed several studies that
demonstrate how obscure and unclear legal writing regularly leads to unnecessary lost time
through longer meetings, additional phone calls, and hours spent explaining what ought to be
clear. .
Writing concise and easy-to-read legal documents presents a good impression of you and your
firm. The public like plain English and happy customers are more likely to give you repeat
business. Clients that have had a good experience and have felt that they understand what has
been happening at every stage are also more likely to give you a recommendation and to make
referrals.
More broadly, by demurring from the hyper-formal and legalese-heavy language that so turns off
the public, you’ll be helping to protect the reputation of the legal profession more generally.
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5 legal writing tips from leading legal
authorities
A career in the law means a career spent writing. Almost all legal work, in one way or another,
boils down to some form of writing: submissions to the court, emails to clients, memos for
colleagues. Yet, despite this, clear, useful, and actionable advice for improving legal writing
skills is hard to come by.
There is some great advice out there, though. Here at One Legal we’re not content with any old
advice, however. We’ve searched through advice from some of the legal world’s leading
authorities to find the best writing advice out there. Here are the results of our labor, our five top
pieces of legal writing advice:
Memos, motions and arguments should all follow the same clear format, he says: an
introductory summary that states the document’s conclusion, rule, analysis, and conclusion.
Legal writing should, he goes on to say, have clear paragraphs (each focusing only on a single
topic), and be broken up with meaningful headers and subheaders.
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Prof. Eugene Volokh (Professor of Law at UCLA) Use the active
voice and be concise
Eugene Volokh of UCLA advises to use the active voice. This makes your writing more
compelling, and clarifies your message. You will make more of an impact by getting straight to
the point and clarifying the meaning of your sentence.
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7 legal writing mistakes to avoid
When it comes to legal writing, the stakes are high. Hard-to-read or understand court filings can
harm cases and, sometimes, lead to sanctions from the court. It’s vital, therefore, that legal
writing is as clear and succinct as possible.
Less is more when it comes to good legal writing, especially when it gets right down to
business. Legal writers are rewarded for precision, analysis, conciseness, and efficient
communication.
Here are the most common writing mistakes you must avoid if you’re not to come across as a
rookie.
The guru of legal writing, Bryan Garner, says it best in his must-read book for all ambitious legal
professionals, “Legal Writing in Plain English”:
“Think of it this way: if you’re active, you do things; if you’re passive, things are done to
you. It’s the same with subjects of sentences. In an active voice construction, the subject
does something (‘The court dismissed the appeal’). In a passive-voice construction,
something is done to the subject (‘The appeal was dismissed by the court’).”
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#2 Beware of ambiguous pronouns
An ambiguous pronoun occurs when a pronoun may refer to more than one antecedent (a prior
word in the sentence), leaving readers uncertain as to your intended meaning (hence this error
sometimes called an unclear antecedent).
Consider the sentence: “Laura has a letter for Diane, but couldn’t deliver it because she was
blocking her way.” Who was blocking whose way? This sentence is confusing for the reader to
understand quickly because they have to think carefully about to whom the pronouns refer.
It’s best to rephrase sentences containing pronouns like “her” and “him” to make it clear which
pronoun refers to what. For example: “Laura has a letter for Diane, but couldn't deliver it
because Petra was blocking Laura’s way”.
A legal document that can convey its message in as little space as possible is more useful than
one that rambles for many pages. When you have something to say, get right to it! Inflating your
sentences and paragraphs with unnecessary words or pointless filler only obfuscates what you
mean to say.
There’s a great list of some of the most commonly-misused here. Here are three that, I think, are
worth paying extra special attention to:
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- Allude / Elude — “allude” means to make an indirect reference, while “elude” means to
evade or escape from.
- Ensure / Insure — “ensure” means to confirm that something will happen, while “insure”
refers to the monetary insurance of something or someone.
- Formerly / Formally — “Formerly” means in the past, previously, or in earlier times, while
“formally” means conforming to convention, ceremony, and proper etiquette.
- Their / There / They’re — “their” is the possessive case of the pronoun “they”, while
“there” is an adverb that means in or at that place, and “they’re” is a contraction of the
words “they” and “are.”
- Its / It’s — “Its” is the possessive form of “it”, while “it’s” is the contraction of “it” and “is”.
#6 Over-using legalese
“Any profession has its jargon… I can’t bear it. I don’t even like legal Latin. If you can say
it in plain English, you should.”
- Ruth Bader Ginsburg, U.S. Supreme Court Justice
In “The Elements of Legal Style” Bryan Garner writes that “In legal writing, jargon consists
mostly of stilted words and phrases — blemishes, not graces — such as aforesaid, arguendo,
hereinafter… Most hoary legal phrases have little or no substantive purpose.They sometimes
mar the substance by suggesting precision where in fact an ambiguity lies.”
One of the simplest ways to cut back on legalese is to refrain from using redundant couplets (or
worse, triplets!). Why say “null and void” when just “null” would do? Why write “convey, transfer
and set over” when just “convey” would do? A tiny handful of these phrases exist in statute, and
so should be retained, but the vast majority serve little or no purpose. Cut them out.
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It's often best to have a second person proofread important documents. If you're not that
fortunate, take a short break (at least 30 minutes) and, when you return, either print the
document out and proofread it on paper with a pencil or, better still, give it a good dramatic
reading (yes, out loud!). If you stumble over a sentence when reading aloud, there likely are
spelling or grammar mistakes you should take care of.
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How to self-edit as a paralegal
Here at One Legal, we know that your filing prowess is only one of many superpowers you’re
called on to use daily as a paralegal. In addition to administrative and organizational duties, your
time is likely taken up by the need to research, write, and edit constantly. Moreover, the quality
of your work on preparing reports, presentations, and legal documents can have a profound
impact on the outcome of your cases.
Indeed, the importance of writing and editing to legal work is indisputable, but improving your
skills in this area isn’t easy. How should you go about honing your editorial abilities? You might
consider these helpful tips.
Cheat sheet: Check out this free checklist from Grammar Girl – it’s even in printable PDF form!
#4 Aside from the text itself, ensure the styling and formatting of
the document are consistent
Style and format elements include font style and size, page numbering, spacing, use of
headings and subheadings, and the like.
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When collaborating with colleagues on documents, you may want to use the track changes
function in Microsoft Word, or “suggesting” mode in Google Docs, and make comments
whenever appropriate in both applications. This lets colleagues visualize your suggested
changes, and possibly explain your reasoning for some of the edits. And of course, reading
aloud can be a useful strategy for finding inconsistencies in meaning and grammar.
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Why typography should matter to
lawyers
“Typography matters because it helps conserve the most valuable resource you have as a writer
— reader attention.”
So says Matthew Butterick, a graphic designer-turned-lawyer who has authored a book called
“Typography for Lawyers”, which seeks to bust a lot of presentational myths that persist in the
legal profession, and suggest ways legal documents can be made easier to read.
Okay, so the font you choose, the size of your subheadings, and the spacing of your paragraphs
obviously isn’t likely to be your primary concern when working on legal documents. That said,
since the purpose of your writing is often to persuade people of a position or to convey certain
important information, it’s essential that it is easy to read and understand. Here, typography
matters.
That’s because a badly-formatted page or one written in a difficult-to-read font requires the
reader to devote their energy and attention to the mechanics of reading rather than your
message. Today, with many important documents electronically filed and only ever read on-
screen — a medium that’s been proven to negatively affect a reader’s ability to focus — good
typography matters more than ever.
Courier, and other similar monospaced fonts (so named because every character is the same
width), served a single purpose — to suit the mechanical requirements of typewriters. They
weren’t designed to be easy to read or attractive on the page.
So, what should you use instead? Some would argue that the most readable fonts are sans serif
(straight, with no flicks). That’s certainly true for signs, headings, and other pieces of
information that will be glanced at. It’s why Helvetica has been used the world over for signage
in public transit systems, for example.
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There’s some evidence, though, to suggest that readers are better able to recall information
from longer pieces of writing when they’re typed in a serif font (curvy, with tail flicks). Times
New Roman is an acceptable choice, but other system fonts (fonts found by default in programs
like Microsoft Word), such as Cambria and Georgia are better (both, by the way, meeting
California’s requirements).
- Break up text with headings and sub-headings — Introduce new sections with a heading
or sub-heading that summarizes what’s to come. Capitalizing each word in a header is
up to you, but note that it is often easier to read when written in sentence case.
- Left align (rather than justify text) — The Chicago Manual of Style says it better than I
could: “Use left alignment. Full justification is ugly and more difficult to read.”
- Use 1.5 line spacing — A healthy gap between lines vastly improves readability and
makes it much easier to scan for particular pieces of information. California’s rules state
that either 1.5 or double line spacing can be used. Double line spacing creates
unnecessarily large gaps, so choose 1.5.
- Set larger left and right margins — There are few professional publications that use
letter-sized paper and small one-inch margins. Why? Because this often results in more
words per page than is comfortable to read. California sets minimum margin sizes,
which you’re welcome to exceed. Try setting at least 1.5 inches left and right.
- Use 13 pt, rather than 12 pt font — Now that eFiling is so prevalent, and on-screen
reading is a real possibility, you need to format for on- and off-screen readers. In
California, the minimum is 12 pt, but a little larger will be easier to read, especially on a
smaller screen, like that of an iPad.
Be consistent
If you’re going to go to the effort of overhauling your typography for maximum readability, then
it’s vital you’re consistent. Abrupt changes mid-document or changes in fonts from one letter to
the next will imply a lack of care, attention, and professionalism.
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Establishing a style guide for your firm, specifying preferred margin widths, line spacing, font
styles, and so on will go some way to achieving this. One of the easiest ways to ensure
consistency, though, is to make use of the “Styles” functionality in Microsoft Word. It’s crucial to
learn what a style is and to set yours up according to your firm’s preferred approach.
Styles also help to ensure consistency between staff because the same default style set can be
deployed on every employee's’ computer.
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How to use Microsoft Word Styles (a
guide for legal professionals)
A well-formatted and -presented legal document can go a long way toward enhancing
readability. However, worrying about consistent formatting can seem trivial when it’s the
content that really matters.
If (like me) you’re a bit of a pedant for a consistently-presented document, then you may have
spent a lot of time manually making titles a certain size, making headings bold, indenting
quotes, and so on.
All that time can be saved, however, by investing a little initial effort in setting up your preferred
formatting with Word’s “Styles” feature.
By the way, unless otherwise specified, these instructions are for Word 2016, though instructions
will be very similar in previous versions back to 2007).
For example, let’s say that you’d like for every heading in a document to be bold, centered,
uppercase, and in a larger font than your paragraphs. You could go through and manually apply
this formatting every time you write a heading. Or you could store the formatting commands in a
Style to be used at the click of a button when you need it.
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The Styles ribbon (the bar of styling options at the top of the page) has been present in every
version of Word since 2007. However, despite this, many assume that the default settings
(which are, for some reason, large and blue) are the only Styles available. As it turns out, that’s
not true. Styles are, in fact, a very useful feature of Word which, if you use them correctly, can
save you a lot of time you’d otherwise spend formatting.
Applying a style to your text is easy. Just select the text with your mouse and, while the text you
want to format is highlighted, click on your preferred Style in the ribbon. Your text will be re-
formatted to the selected Style.
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What if there’s a Style that you like, but your law firm uses, say, Georgia rather than Calibri, or
you’d prefer for titles to be in black rather than blue? No problem. Just right-click on top of the
Style element and select Modify.
The Modify Style dialog box will open. Here, you can amend all aspects of the selected Style
element. You can also choose whether to apply your changes only to the document you’re
currently working on or to all future documents you create.
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Creating your own Style
What if you’ve got a whole set of formatting at your firm that you have to use often but isn’t
available in the Styles ribbon? No problem — you can create Styles in a few easy steps.
First, format your text the way you want the Style to appear (or choose some text that’s already
formatted in the way you would like), select it with your mouse, and in the Styles Gallery drop-
down list choose, Save Selection as a New Quick Style. Give the new Style a name, click OK,
and you’re set!
The style will automatically appear in the Styles Gallery. You can now apply your style to any
text by selecting it and clicking the Style's name in the Gallery. If you want the style to be
available for all future documents you create, right click its name in the Style Gallery, choose
Modify, click the New documents based on this template option button, and select OK.
Word will save the style into the template.
First, clear the formats applied by the document’s previous author. To do this, select all of the
text in the document (CTRL+A will do this) and then click Clear Formatting in the Style menu to
remove all of the formatting. Don’t worry; you can get all of the previous formatting back
immediately by pressing CTRL+Q.
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Once everything is cleared, you can quickly apply the correct formatting using the Styles you
have pre-set in your Styles ribbon!
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The best books, blogs, and resources
for legal writing
The vast majority of legal jobs require the deployment of legal writing skills. In fact, your writing,
along with your interpersonal abilities, will almost certainly be the most important elements on
which you are professionally judged.
However, because of the sheer volume of written material produced by legal professionals —
wills, leases, contracts, pleadings, briefs, instructions, client letters, settlement agreements, and
so on — it’s easy for many to gloss over the fact that it’s a very tough thing to do well.
Here, we’re going to share with you the best books, tools, and resources that can help you to
become a better legal writer.
#2 Grammarly
Let’s face it, the built in spell checker in Microsoft Word still isn’t really up to the task. Yes, it’ll
spot egregiously misspelled words but when it comes to grammar or word choice its
recommendation, if it makes any at all, are often weird or plain wrong.
That’s where Grammarly, a beefed-up super spell checker comes in. Grammarly checks for
spelling mistakes, of course. But it also goes several steps further and highlights overused
words, incorrectly used homonyms, and hundreds of grammar errors. If you upgrade to the paid
version, it will even point out when you’ve relied too heavily on the passive voice and will check
your work for possible plagiarism.
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Grammar Girl, a website written by professional writer Mignon Fogarty, is a wealth of short,
friendly tips to improve your writing. The daily tips cover a wide range of grammar rules and
word choice guidelines that even flummox experienced writers making it a highly useful
resource.
While the guides are written for the school’s students — they cover subjects such as writing
concisely, citing correctly and drafting effective briefs — there are insights here to benefit
almost all legal writers.
Producing a style guide from scratch sounds like an intimidating prospect, however. Fortunately,
Adobe — a company known the world over for the clarity of its communication — have released
their legal department’s style guide for all to look at (and borrow from) under an open source
Creative Commons license. It’s well worth taking a look at.
The most recent edition features thousands of entries, as well as many illustrative quotations
from judicial opinions and leading law books. It’s a vital resource for any serious legal writer.
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#8 Butterick’s Typography for Lawyers
The second most important reference book you’ll want to highlight in your style guide should
offer a robust set of typographical conventions. Trust me, when those tedious but seemingly
never-ending typographical debates (such as whether one ought to type one or two spaces after
a period) crop up, you’ll want a book as comprehensive as “Typography for Lawyers” to refer.
What legal writing tools and resources do you use? Share your suggestions in the comments
and we’ll add the best to the list!
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