Kỹ năng viết pháp lý Plain english and general principles of legal writing

Writing: SentencesSentence length • Key is to think about the reader • Keep sentences short very difficult for most lawyers • Average sentence should be no more than 25 words and should

Plain English and General

Principles of Legal Writing

• Legal writing is formal and professional

• Legal writing is powerful – significant consequences can follow from poor drafting

• Legal writing (should be) practical, direct, and clear

• Legal writing generally follows organizational patterns

complicated accessible to a reader

Preparation Stage

A Identifying the reader

B Determining required document type

C Creating an outline

Preparing to Write

Steps

document will be formatted

Preparing to Write: Identifying the reader

Who is your reader?

• Where is your reader from?

• What is their education level?

• What is your reader’s job?

• What your reader’s language proficiency?

What does the reader want in terms of:

i) style

ii) length

iii) simplicity

Preparing to Write: Determining required document type

What is the scope of the project?

• Memorandum or email?

• Full contract or agreement letter?

How will you format that document?

• Remember, the goal is to make the writing acessible to the reader

Preparing to Write: Create an outline

How will you present the ideas that you need to convey to the reader?

1 What material will you cover?

• Consider the client question carefully

• Consider if there are other topics or if there is information that is necessary for the reader to understand

2 How will your order that material?

• Question of how to structure the document to make the information most available to the reader

• Consider how the reader will need to process information

Preparing to Write: Create an outline

Ordering material

• Use IRAC, CRAC, or CREAC for the document AND/OR sections of the

document

• Issue: the general topic of the document of the section

• Rule: The applicable law or regulation

• Application: the analysis of how the rule applies

in the specific instance (often this is found in the

Issue section )

• Explanation of Rule: explaining how a rule works or

the purpose of a rule

• Conclusion: this is where you state the result of the

analysis Also where you state your opinion of the

Preparing to Write: Create an outline

Ordering material

Methods of ordering sections

1 Chronological order

2 Categorical order; information sorted under categories

3 Ascending order of complexity: simplest first

4 Descending order of importance: the most important first

5 Ascending order of importance: most important last (not recommended for

legal writing)

Preparing to Write: Create an outline

• For the writer, especially at the outline stage, the roadmap is a method to check

and make sure that your argument is coherent and comprehensive

Example: Roadmap paragraph

Writing: Paragraphs

Definition:

“A paragraph is a series of related sentences developing a central idea, called the topic.”

• The amount required to explain the central idea of the

paragraph – generally, 1 – 6 sentences

Writing: Paragraphs

• The biggest consideration is how easy it will be for the client to read

• Break paragraphs up into smaller sections to allow more white space on each page

• Use shorter sentences

• Generally, you should try to have at least 3 paragraphs per page for readability

Example: Size of paragraphs on pages

Writing: Paragraphs

Structuring the information in a paragraph

• Hourglass paragraphs generally begin with a

general statement about the topic (one or

two sentences)

• The following sentences are more specific,

generally elaborating on or explaining the

content of the general sentence

• The paragraph concludes with another

general statement about the topic or a

restatement of the first statement

Structuring the information in a paragraph – V method

Writing: Paragraphs

• General statement

• Specific support

• V paragraphs generally begin with a general

statement about the topic (one or two

sentences)

• The following sentences specific and explain

the content of the general statement

• V paragraphs are more common in legal

writing

Example: V paragraph

Writing: Sentences

Definition:

“A grammatical unit of one or more words that expresses an independent

statement, question, request, command, exclamation, etc., and that typically has

a subject as well as a predicate.”

Writing: Sentences

Sentence length

• Key is to think about the reader

• Keep sentences short (very difficult for most lawyers)

• Average sentence should be no more than 25 words and should not take more than four lines

Writing: Sentences

Shortening sentences

• Remember to only make one point per sentence

• Build your sentences only from the most important words (telegram words)

• Remove clutter words

• Don’t repeat yourself needlessly

Writing: Sentences

Shortening sentences – single point sentences

• Watch for conjunctions and split a sentence when a conjunction is used to connect two points Most common conjunctions

Writing: Sentences

Shortening sentences – building from key words and terms

• Find the telegram words in the point you want to make

• Follow the Subject + Verb + Object formula

• Keep the subject close to the verb

• Pick concrete subjects (ask, who or what is doing something in the sentence)

• Choose an action verb

• Avoid the verb form “to be”

• Avoid vague verbs that do not

tell the reader about the subject’s

real action

“to be” verb form

am are is was were

Common vague verbs

Concerns Involves Deals (with) Reveals

Example: Telegram words

Before (with telegram words underlined) After

Example: Concrete subjects

Draft: A decision was made by anh Tung to eliminate all trainee positions.

Revised: Anh Tung decided to eliminate all trainee positions.

Draft: The awarding of damages will be left to judicial discretion.

Revised: The judge will decide whether to award damages.

(verb) (subject)

(subject) (verb)

(subject) (verb)

(subject) (verb)

Example: Action verbs

Draft: The owner of the land is Son Kim Land, JSC.

Revised: Son Kim Land, JSC owns the land.

Draft: The corporate officers had an informal meeting at an undisclosed location.

Revised: The corporate officers met informally at an undisclosed location.

(verb) (subject)

(subject) (verb)

(subject) (verb)

(subject) (verb)

Writing: Sentences

Shortening sentences – removing clutter words

• Clutter words are words that do not actually add meaning to the sentence

• Often happens because of lawyer’s desire to be very clear and comprehensive

• Key things to watch for:

• “Of the”

• Watch for this because it typically means there are clutter words in the sentence

• Adverbs – easy to spot because they usually end in “…ly”

• Worst offender in legal writing is “clearly”

Cluttered sentence:

At this point in time, we are in the process of filing a motion for summary judgment with the court

Less clutter:

At this point in time, we are in the process of filing a motion for summary judgment

Even less clutter:

We are in the process of filing a motion for summary judgment

Finally, root of sentence:

We are filing a motion for summary judgment

Example: Clutter words

Writing: Sentences

Shortening sentences – unnecessary repetition

• Occurs when two words are paired together and one word, by definition, includes or excludes the other

• For example:

• “foreign imports”

• “never before”

• “usual custom”

Writing: Sentences

Sentence clarity/effective sentences

• Using active voice instead of passive voice

• Transitions

Writing: Sentences

Sentence clarity/effective sentences – Active vs passive voice

• Active voice means that the subject in

the sentence is the person or thing

performing the action (verb) in the

sentence

• Passive voice means that subject of

the sentence is having the action

(verb) performed on them

Characteristics of active and passive voice

Writing: Sentences

Sentence clarity/effective sentences – Active vs passive voice

• In legal writing, we generally prefer active voice

• Uses less words

Passive voice: The summons were left by the marshal (seven words) Active voice: The marshal left the summons (five words)

• Allows the reader to process the information more easily because the reader can

process information as they read instead of having to wait until the end of the

sentence to who/what is doing the action

Passive voice: The deposition must be offered into evidence by the defendant’s attorney Active voice: the defendant’s attorney must offer the deposition into evidence.

Sentence clarity/effective sentences – Active vs passive voice

Creating active voice sentences

1 Find the subject (who is doing the action)

The objection was overruled by anh Tri.

2 Find the action (verb)

The objection was overruled by anh Tri.

3 Put the subject before the verb, then add the remaining sentence

4 Anh Tri overruled the objection.

Writing: Sentences

The objection was overruled by anh Tri.

Sentence clarity/effective sentences – Transitions

• Transitions are the primary connectors between sentences Transitions allow the

reader to smoothly move through the document

• There are three common types of transition

1 Generic transitions*

• Words and phrases used to show transition in every kind of writing

• Like glue between sentences

2 Orienting transitions

• Transitions that provide context or a backdrop for the information that follows

• Two main types are i) times and dates and ii) relevant events

3 Substantive transitions

• Like links of a chain that connect sentences together

• The most powerful type of transition

Writing: Sentences

*List of generic transitions provided in Appendix A

Sentence clarity/effective sentences – Transitions

Generic transitions

• Often one word that typically appears at the beginning of a sentence

• Generic transitions can typically be grouped by categories

Writing: Sentences

• WARNING: When using generic

transitions, the writer must be

careful to use an appropriate word,

otherwise the meaning of the

following sentence might have a

different meaning than intended or

be completely altered

Categories of generic transitions

For contrast For difference For comparison For cause and

“Long, the owner of the Fitness Club, may claim that although Viet’s restaurant has lost several customers, the majority of the

customers will return Viet, on the other hand, may argue that

the loss of several customers is significant to his business”

“Viet was made insecure in the use of his property when

patrons threatened not to return As a result, the Fitness Club

and its activities constitute a nuisance.”

Example: Generic transitions

Showing

comparison

Showing

conclusion

Sentence clarity/effective sentences – Transitions

Orienting transitions

• Usually either relate to times and dates, relevant events, or both

• Typically appear as a full clause or sentence

• Can effectively be used to transition between paragraphs (taking the place of a general statement)

Sentence clarity/effective sentences – Transitions

Substantive transitions

• Substantive transitions use a technique called dovetailing

• Dovetailing requires drafting sentences that are comprised partially of old

information, and partially of new information

• Dovetailing sentences typically make use of a hook word and a summarizing

noun (a noun that summarizes the previous sentence)*

• Examples of hook words: This, after, both, etc.

• Examples of summarizing nouns: attempt, angle, branch, etc

Writing: Sentences

*More comprehensive list of summarizing nouns provided in Appendix B

Realizing that he would not be able to stop in time to avoid

hitting the bus, Esko swerved his motorcycle around the bus and into the oncoming lane This evasive action resulted in him

striking another vehicle and running over a group of school

children crossing the street.

Connecting idea Connecting idea

phrase)

Sentence clarity/effective sentences – Transitions

Substantive transitions - dovetailing

Old information New information Old information New information

• Draft sentences that begin with

old information and end with new

information

• Then, overlap the old information

from the previous sentence with

the new sentence

When Vinh returned to his hotel room, he was surprised to find two men rummaging through his suitcase One of the men

turned toward Vinh, drew a gun, and aimed it at him Under these circumstances, Vinh had every reason to believe that his life was in danger

Example: Dovetailing

Sentence 1 Sentence 2 Sentence 3

men rummaging through his

suitcase.

(summary phrase)

• Word choice is often difficult for lawyers

• Words are an essential aspect of the legal profession, but lawyers often write

in a fashion that is difficult to read for most readers (aka clients)

Solution?

Stop writing for other lawyers and remember the number

one rule: write for the client

Writing: Words and word choice

How to use more client friendly language

1 Do not use complex or large words

2 Do not use archaic words

3 Eliminate “Said (noun/verb)” and “Such (noun/verb)”

Writing: Words and word choice

• Using complex does not make you appear more intelligent

• Especially when the content is already complex, using common,

simple words can help your reader understand the content more easily

• Almost universally, lawyers love to use archaic words

• These words essentially are only used by lawyers and actors in Shakespearean plays

• Worst offenders include:

• Aforementioned/aforesaid -> omit or “previously mentioned” or “mentioned above”

Writing: Words and word choice – archaic words

• Another way of writing that lawyers almost universally love to use to refer to a noun from the previous sentence

• Example: “Such documents must be delivered to ”

• Said/such should be substituted for “the” or “these” or “this”

• Example: “These documents must be delivered to ”

Writing: Words and word choice – “said/such (noun/verb)”

• English has too many punctuation rules to cover in this presentation

• A couple selected rules:

1 Commas or parentheses?

• Whichever adds more clarity

A counter-notice must be given to the landlord, who may, or may not, be the immediate landlord who served the notice terminating the tenancy and must be given within two months of the landlord’s notice.

A counter-notice must be given to the landlord (who may, or may not, be the immediate landlord) who served the notice terminating the tenancy and must be given within two months of the landlord’s notice.

2 Do not use quotation marks for “air quotes”

• Air quotes appear when the writer uses quotation marks around a noun to signify that it has important status

in the sentence:

The new law prohibits bar and club workers performing promiscuous acts Said “promiscuous acts” are

• Note, this is commonly used by many writers, but my opinion is that it doesn’t belong in formal writing since it

is a misuse of the punctuation

Writing: Punctuation

Example:

Example:

Example:

Editing Stage

Quick tips

1 Create a list of party names, then go through and

highlight each party name to make sure it is spelled correctly

will not catch errors

consequences in a contract

very unprofessional

Editing: Tips

2 Make sure the document language is correct

Editing: Tips

3 For important documents (letters, etc.) use the listening

feature of MS word

Editing: Tips