How to write legal english effectively when lacking sufficien legal background

Consequently, in their publication, they focus on discussing both components and process of studying enough information or legal regulations before producing certain legal English writin

MINISTRY OF EDUCATION AND TRAINING

HO CHI MINH CITY UNIVERSITY OF LAW

GRADUATION STUDY B.A DEGREE IN ENGLISH

Major: Legal English

HOW TO WRITE LEGAL ENGLISH EFFECTIVELY WHEN LACKING SUFFICIENT LEGAL BACKGROUND

Supervisor: Phan Le Chi, MA Student: Le Thi Hoang Chau Student ID: 1652202010012

Ho Chi Minh City, 2020

ACKNOWLEDGEMENT

When I was a sophomore, I read a few excellent graduation theses of other students I thought I would never have a chance or ability to conduct a thorough study and express my ideas or opinions as well as those students had done However, everything happened in the way completely contrary to what I thought I became one of the students qualifying for doing a graduation study I was nervous and eager for what I need to do to complete my study successfully When I received the list of topics, I chose this study topic because it caught my attention immediately In addition, I felt very lucky when I knew my supervisor was Ms Phan Le Chi She is one of the lecturers that I have always admired since I had a chance to attend her courses on legal writing and broaden

my knowledge by virtue of her unique teaching method and extensive experience During the process of doing this study, she wholeheartedly supported me in providing information that I could not find on my own Moreover, she also gave me useful advice and comments for my papers Therefore, I would like to express my deepest thanks to her because what she did has greatly contributed to the success and completion of my study Additionally, I would be glad to show my gratitude to all the lecturers who were

in charge of the courses I attended since my study also applies skills and knowledge that

I have learnt from them

I am especially grateful to my friends, Tran Nhu Quynh and Bui Tien Phat They always stay by my side, support, and encourage me to accomplish something challenging in the final year at university Furthermore, they also gave me a number of books and references that I could never find on my own What they have done really strengthens my motivation to overcome difficulties in writing this study Moreover, I would like to give my warmest thanks to Vo Minh Nga and Le Nguyen Phuong Quynh They helped me make my study better by proofreading it to review the contents and spot all mistakes that I could not realise by myself

LIST OF TABLES

Table 1.1: Specific types of legal texts in informative writing – Law office

memoranda……… 8 Table 1.2: Specific types of legal texts in informative writing – Letters……… 9 Table 2: Specific types of legal texts in persuasive writing……… 10

Table 3.1: Specific types of legal texts in planning and documentary writing – Wills and

contracts……… 11

Table 3.2: Specific types of legal texts in planning and documentary writing –

Constitutional documents and case briefs……… 12

Table 4: Expressions about rights and duties……… 38

TABLE OF CONTENTS

INTRODUCTION 1

1 Background study and study question 1

2 Study objectives 2

3 Scope of study 2

4 Literature review 3

5 Study methodologies 4

6 Structure of study 5

CHAPTER ONE: GENERAL INTRODUCTION OF WRITING LEGAL ENGLISH 6

I What is writing legal English? 6

II Types of legal English writing 7

III The standards of a good piece of legal English writing 13

IV The impacts of good or bad legal English writing 15

CHAPTER TWO: LEGAL BACKGROUND IN WRITING LEGAL ENGLISH 17

I How much is sufficient legal background in writing legal English? 17

II The impacts of lacking sufficient legal background on writing legal English 20

III How do legal writers have sufficient legal background? 21

CHAPTER THREE: METHODS OF WRITING LEGAL ENGLISH EFFECTIVELY WHEN LACKING SUFFICIENT LEGAL BACKGROUND 24

I Prewriting stage 24

II Writing stage 33

CONCLUSION OF THE STUDY 42

I Summary of study 42

II Limitations of study 43

III Suggestions for further studies 43

INTRODUCTION

1 Background study and study question

Regarding learning general English, writing is one of the most important productive skills Writing reflects the process of thinking, because it usually requires writers to transfer what they think in mind to written form with well-organised order of ideas However, the majority of people rarely prefer practising this skill set, because they find it more challenging than the others They usually write long and rambling essays, since they do not know the effective ways to go through the whole writing process They usually skip most of the preparing stages and write down any sudden idea

in their mind immediately Consequently, their essays can be obscure and illogical

In applying English to the field of law, having good writing skills is strictly and commonly required, because the wrong use of words or punctuation marks can change the meaning or cause ambiguities, leading to serious legal consequences In reality, legal writers also have the same problem with writing in general English, which usually leads

to complicated texts Additionally, due to the academic nature of law, writing requires final documents to be suitable with different legal contexts As a result, legal workers frequently face the problem of getting accustomed to all types of legal texts In addition, there is also another main difficulty It is having no or little legal background about a particular legal area This problem results from the widely-held perception In particular, when discussing something about law, most people tend to believe that all legal writers must have intensive knowledge of law or remember every single legal regulation applied

to solve a legal issue However, in fact, the majority of people working in legal field hardly have sufficient legal knowledge What they usually need is skills to analyse and understand legal principles to apply in writing appropriately Unfortunately, even a lot

of legal workers, especially those who are inexperienced, do not realise this fact As a result, with such mindset, they become afraid of writing and do not know how to gain their own sufficient legal background to produce legitimate and well-organised papers

to accomplish certain purposes and bring benefits for clients Therefore, it is urgently necessary to know how to write legal English effectively when lacking sufficient legal background

In Vietnam, the demand of using legal English in field of law is presently getting higher and higher due to the rapid and sustainable development of foreign investment

as well as the integration of Vietnam into the global economy For this reason, legal learners or professionals are trying to improve not only their legal English but also legal writing skills in English Unfortunately, they usually have problems in finding the most appropriate source about writing legal English Although they have to work under Vietnamese law or civil legal system mainly, the majority of available references or publications are based on American or common law The differences in nature of the two systems impact the steps of searching for applicable laws and writing, which consequently impedes progress in writing skills for Vietnamese people studying and working in legal field Therefore, this study will focus mainly on writing legal English

in Vietnamese legal system

Throughout the study, four study questions can be raised in order to discuss this topic fully The study questions are:

- What are the standards of the good writing of legal English? What impacts does the lack of sufficient legal background have on writing legal English?

- How can they make it sufficient during the writing process?

- What are the most effective methods or strategies to write in case of lacking knowledge about law for Vietnamese legal practitioners?

2 Study objectives

The study aims to investigate all the issues mentioned in the study questions In addition, it will propose suitable and efficient methods of resolving the problems of writing legal English in case of having no or little background in legal field for legal workers or learners in Vietnam

3 Scope of study

This study focuses on suggesting methods of writing in case of legal background shortage Moreover, in order to suggest efficient strategies, it is necessary to understand some legal aspects relating to the topic They include (i) the definition and specific types

of writing legal English; (ii) the understanding of sufficient legal knowledge and its impacts on writing legal English Accordingly, this study will also cover such aspects, allowing readers to understand the reason why certain methods are suggested

Furthermore, this study will also primarily cover certain methods to suit the nature of the legal system in Vietnam

4 Literature review

For the last few decades, a number of authors have been discussing the importance of legal background in legal English writing The large majority of their publications have a similarity in highlighting the importance of conducting legal research to find applicable legal principles

Edwards (2018) focuses on proposing specific methods of writing briefs, letters,

and memoranda in her publication, Legal Writing – Process, Analysis, and

Organisation Particularly, the author incorporates the steps of finding legal rules into

the process of writing each type of legal texts Moreover, the publication clearly states that the step of searching for legal regulations in writing briefs is different from that in writing memoranda Nevertheless, this book imposes a limitation on the general process

of conducting legal research to find applicable rules Specifically, as it solely discusses writing process of briefs, letters, and memoranda, readers can easily assume that legal writers only need to conduct legal research when writing these three legal texts Consequently, it does not give the general process to find legal rules to write legal English in the most effective way

Unlike Edwards, Bast and Hawkins (2010) have a different approach to the process of gaining adequate legal background Before giving steps of legal research, they indicate the necessity of understanding a legal system thoroughly Therefore, their

publication, Foundation of Legal Research and Writing, gives specific information

about the American legal system and two sources of law, including a primary source which is laws like constitutions, cases, or administrative regulations; and a secondary source which contains commentaries on the law, such as legal review articles Subsequently, they provide eight steps of study to locate legal rules in accordance with the identified legal sources Moreover, they do not focus on giving any different process

of legal research for different types of legal texts This means they make an effort to give the most general process of searching for legal rules so that readers can apply it in almost all contexts of writing

Another source of legal writing is Legal Reasoning and Legal Writing

(Neumann & Tiscione, 2013) The authors base on American legal system and describe their perception of legal writing which should include the general understanding of final products (how the final writing looks, what it accomplishes, and so on) as well as writing process Moreover, they also emphasise the importance and the difficulty in legal research of written legal documents Consequently, in their publication, they focus on discussing both components and process of studying enough information or legal regulations before producing certain legal English writing, especially letters and

memoranda Similarly, in Legal Research and Legal Writing for Paralegals, Bouchoux

(2016) strongly emphasises the significance of doing legal research before giving various methods of writing in law practice Following Bouchoux, Samborn and Yelin

(2016) have developed their publication, Basic Legal Writing for Paralegals, to indicate

how to determine legal authorities or governing laws and use them appropriately as adequate preparation before starting to write

Overall, at the moment, most of the available publications relating to writing legal English mainly discuss three matters, including (i) the American legal systems and sources of law, (ii) steps of legal research, and (iii) writing process Most authors strongly emphasise the necessity of legal research to gain sufficient legal foundation for writing effectively However, these present publications are based on US or common law system Additionally, there are very few books about writing legal English based on civil law system This leads to the difficulties for Vietnamese legal learners or practitioners in finding the most appropriate methods to gain sufficient legal background and write effectively The reason for this is that the nature of these two law systems is distinguishable Consequently, the process of legal research in civil law system can be different from that in common law system

5 Study methodologies

There are several study methodologies that will be applied throughout the study Firstly, the qualitative study method will be applied to convey definitions or characteristics of writing legal English Secondly, in accordance with the synthesis method, the study will summarise several relevant studies or publications of various authors on the same question In addition, the study will also use the analytical study

method to analyse and evaluate other available sources of materials or references relating to writing legal English

6 Structure of study

Chapter One: General introduction of writing legal English

Chapter Two: Legal background in writing legal English

Chapter Three: Methods of writing legal English effectively when lacking sufficient legal background

CHAPTER ONE: GENERAL INTRODUCTION OF

WRITING LEGAL ENGLISH

This Chapter aims to give a brief overview on the concepts of legal English and writing legal English In addition, it also discusses standards of a good piece of legal English writing as well as negative or positive impacts on both writers and readers

I What is writing legal English?

When using legal English, legal writers should pay attention to develop the ability to write well because this is one of the most frequently used skills in law practice

In Vietnam, the importance of writing legal English is so tremendous that Vietnamese legal practitioners should pay even more attention to sharpen their skills The reason is that legal writing in the first language is already difficult This means legal writing in English is definitely far more challenging Therefore, it is necessary to know what writing legal English is and its fundamental role in law practice

Writing legal English is considered a process of creating legal documents in English This process includes three main stages, from planning for content, to writing

in a readable way, to reviewing and revising thoroughly (Bast & Hawkins, 2010, p 281) Each of these stages contains a range of skills legal practitioners should acquire in order

to produce legally effective documents In particular, writers always need to go through the prewriting stage to prepare for the contents of their writing It requires them to have necessary skills to identify main legal issues of a case, study, analyse relevant and applicable legal principles, and then outline or arrange fundamental points logically to give final legal answers This very first stage contributes profound effectiveness to the second stage when people begin writing, because adequate preparation allows them to know exactly what they should write about and avoid wandering away main legal issues which need discussing Subsequently, in order to create the readable writing, writers should possess skills to write logically, use the most appropriate legal English terms, avoid wordiness and ambiguities by not using too many meaningless words or complicated structures Finally, the stage of reviewing and revising urgently requires writers to know how to properly edit their own legal English writing objectively in order

to spot errors throughout the writing

Writing legal English is a vitally important skill set for several reasons One of them is that almost all legal writers have to deal with writing documents frequently For instance, there is a meeting or a phone call with clients or contractual negotiation between parties Subsequently, legal writers need to write a follow-up email or letter with the aim of summarising and restating the content of the discussion, or carefully draft a contract to convey parties’ will exactly (Krois-Lindner, 2011, p 86) From this example, it is deducible that legal writing is used in almost all cases even when a discussion is oral In addition, legal writing requires legal writers to be able to write various types of documents with distinct purposes compatible with different legal contexts Secondly, at the present, writing legal English well is important to meet foreigners’ increasing demand in finding a legal professional with a good reputation In particular, when operating business or conducting any transaction in another country where people use a different language and legal system, foreigners want to ensure there will be very few legal problems potentially arising from any legal documents related to their business Therefore, they will find legal writers who are excellent at using English

in legal writing to give practical assistance and help them feel secure about doing business

Overall, writing legal English can be defined as a three-stage process of producing English legal documents with appropriate skills at each stage The importance

of writing legal English is undeniable because it is one of the tasks legal practitioners have to deal with regularly In addition, writing legal English well is crucial to meet increasing demand of foreigners in the context of social and economic integration

II Types of legal English writing

Legal writers have to deal with various types of legal English writing Different types have their own function to fulfil writers’ aims of writing Therefore, the most common criterion for classification is the function of written texts or documents According to this criterion, legal writing can be classified into three broad categories (Bast & Hawkins, 2010, p 276; Edwards, 2018, p 35):

- Informative writing;

- Persuasive writing; and

- Planning and documentary writing

The first category is informative writing Its aim is to inform readers specific information related to certain cases, disputes, or legal transactions It can be considered one of the most common types of legal writing since its function is clearly manifested

in the two most common legal texts, including law office memoranda, and letters These types of legal texts can be analysed in the following table:

attorneys need to assist other legal professionals in finding the best way to advise or represent the client

- To inform about:

• Results of a legal research, including strengths and weaknesses of dispute

or transaction for the client’s position (Samborn & Yelin,

2016, p 130); and

• Predictions of outcomes of any possible decision by means of the legal research

- Other attorneys (as primary audience) – Because attorneys need to know the advantages and disadvantages of the case to represent their clients in the best way,

or to help to save the client’s time and money when there are fatal weaknesses; and

- Clients (as secondary audience) – Because clients should see the big picture of their situation to make an informed decision (Samborn & Yelin,

2016, p 130)

Table 1.1: Specific types of legal texts in informative writing – Law office memoranda

Types of legal texts Legal context of writing Function Reader Letters Client

Opinion

Letters

- When attorneys have

to answer clients’

questions relating to certain legal issues; or

- When following up an oral discussion, attorneys

usually need to write clients a letter to confirm discussed

information (Bast &

Hawkins, 2010,

p 295; Lindner, 2011,

Krois-p 86)

- To inform about:

• Information (including given facts, favourable or unfavourable law, and explanation of how it is applied), or advice after attorneys have conducted a legal research carefully; and

• Information discussed in the meeting with the clients

- To document information legal writers have given, protect them from problems of misconstruction, and prove they have fulfilled their professional duty (Bast

& Hawkins, 2010, p

295)

- Clients who need to know the answer to their question

to send or explain any further

document or related issue;

and

- When attorneys direct further actions (Bast &

Hawkins, 2010,

p 293)

- To inform about:

• Explanation for further documents or related issues clients need to know; and

• Direction for further actions

- To document information legal writers have given, protect them from problems of misconstruction, and prove they have fulfilled their professional duty (Bast

& Hawkins, 2010, p

- Clients; and

- Third parties

Table 1.2: Specific types of legal texts in informative writing – Letters

Secondly, persuasive writing is another popular type of legal writing most legal practitioners have to deal with By nature, memoranda of law and appellate briefs are widely known as the two most common legal texts with the purpose of convincing deciding authorities to favourably rule a case for clients (Neumann & Tiscione, 2013, p 31; Edwards, 2018, p 36) Furthermore, persuasive writing can also take a form of letters used to convince clients to take legal advice for their best interests These three most common types of legal texts in persuasive writing can be analysed as follows:

Types of legal

law represent clients at a - When attorneys

trial court and want to convince a judge to rule

in favour of their clients

- To persuade judges at trial court

to favourably decide a case for clients (Bast &

Hawkins, 2010, p

353)

- Trial courts

not satisfied with the decision of the trial court, they can file appellate briefs to have the case decided again

- To persuade judges at appellate court to decide the case again in favour

of the petitioner

- Appellate courts

want clients to follow their legal advice for the clients’ best interest;

and

- When attorneys want to ask opposing parties or third parties

to do certain things indicated in the letter, otherwise their clients have to file a lawsuit against them (Bast &

Hawkins, 2010, pp

277-278)

- To persuade clients to follow their legal advice;

and

- To persuade opposing parties or third parties to meet certain

requirements in order not to be sued

- Clients, and

- Opposing parties or third parties

Table 2: Specific types of legal texts in persuasive writing

The last category of legal writing is planning and documentary writing (Edwards, 2018, p 35; Bast & Hawkins, 2010, p 278) Basically, when doing this type

of writing, legal drafters aim to plan potential legal events in the future and legal consequences, to record certain information of transactions as evidence for possible disputes, or simply to record legal contents In particular, these purposes are commonly demonstrated in wills, contracts, case briefs, and constitutional documents (Bast & Hawkins, 2010, p 278)

Types of legal

assist clients in drafting contracts with another party

- To plan adequate rights and obligations of each party;

- To plan certain behaviour which constitutes a breach of contracts, as well as compensation; and

- To serve as evidence for interpretation or possible disputes

- Parties to contracts; and

- Interpreters

assist clients in drafting wills to plan what will happen to clients’

property after they die

- To plan how inheritance is divided;

- To serve as legitimate records of testators’ will to divide their own property before dying

- Heirs;

- Close relatives

of testators; and

- Other related people of wills

Table 3.1: Specific types of legal texts in planning and documentary writing – Wills and contracts

- To document certain contents in memoranda of association (including information of an entity’s existence, its organisational

structure, rights and obligations of its members), or in charters (including controls and regulations on an entity’s operations)

- Members of an entity; and

- Other related people, e.g shareholders

writers want to help readers understand a case clearly with no need to read the whole case (Krois-Linder, 2011)

- To summarise and document main facts, legal issues, judgements of courts, relevant laws, and a brief explanation of how the laws are applied in the case

- Other legal writers; and

- Clients who want to picture likely results of their case by acknowledging similar cases

Table 3.2: Specific types of legal texts in planning and documentary writing – Constitutional documents and case briefs

Even though legal writing can be classified into three categories, they cannot be completely separated Specifically, when legal practitioners do informative writing, their legal text does not necessarily have an informative function solely, but it can also have a persuasive purpose Client opinion letters can be taken as a prime example In particular, after receiving clients’ questions and conducting a legal research, lawyers usually write clients letters to give them detailed answers In addition, lawyers usually advise on the optimal solutions by weighing strengths and weaknesses of each potential decision At this stage, lawyers can either outline advantages and disadvantages solely and let clients decide on their own, making the letter informative; or put more effort into persuading clients to follow their legal advice and make the letter both informative and persuasive Moreover, in order to convince clients successfully, lawyers should be able

to make their letters informative enough so that clients can consider taking the advice This means a legal text can reflect characters of more than one category of legal writing

In conclusion, according to writing purposes, legal writing in general or legal English writing in particular has three main categories: informative writing, persuasive writing, and planning and documentary writing In each category, there are several legal texts that most legal writers have to deal with frequently Furthermore, regardless of the classification of legal writing, a legal text is not necessarily written with a single purpose, but it can have more than one function of different categories

III The standards of a good piece of legal English writing

In legal profession, writing legal English effectively is a major goal In order to accomplish it, they need to know what standards of good legal English writing are, which helps clarify what they should and should not do to enhance the quality of legal

texts Those standards consist of brevity, clarity, precision, and forcefulness

The first standard legal English writing needs to meet is brevity It is widely thought being brief means being short However, sometimes, several legal issues are too complicated to be written shortly Therefore, brevity here needs to be understood as the elimination of unnecessary meaningless words or phrases The reason is that they have

no meaning or crucial function, but they merely lengthen the whole writing This leads

to unwanted distractions while readers try to get important information in full

Secondly, clarity is one of the indispensable standards of legal English writing Specifically, being clear means conveying intended messages with only one possible interpretation (Tepper, 2008, p 148) In other words, clarity is the quality of causing no ambiguity Clearly written legal texts are absolutely helpful for any intended or potential readers, especially clients and other legal practitioners, to get almost all information after reading once or twice Regarding clients, they are usually laypeople This means legal topics are scarcely familiar to them Thus, an incomprehensible legal text is confusing and challenging for clients to understand Moreover, if they have to spend more time looking up strange words or phrases by themselves, they will definitely find consultation with lawyers useless and time-consuming As for other legal practitioners, they are frequently busy people If they have to read an ambiguous legal document, they cannot have much time to consider the issue thoroughly to help in favour of the writers This leads to the slow and unproductive work progress Therefore, writing legal English

must have the standard of being clear with a single interpretation so that readers can get messages fully and easily

Thirdly, precision is another crucial standard of legal English writing According to Tepper (2008), in addition to clarity, the quality of being precise is imperative as well (p 104) His emphasis is substantially true In particular, it will be great if writers produce a legal text with a single interpretation, allowing readers to obtain a certain message immediately However, what will happen if the meaning of that message is not what the legal writers intend to say? The obvious result is that the legal text will become profitless In addition, the lack of precision can have negative effects For example, in Vietnam, when writing a letter to answer a foreigner’s question about operating business, the lawyers usually need to give explanation of Vietnamese laws, which are unfamiliar to foreigners If the explained information is not accurate, the foreign client can possibly misunderstand the laws, and possibly bear legal consequences later Therefore, it is considerably essential for writing legal English to be precise

Finally, good legal English writing needs the quality of being forceful Basically, forcefulness in a legal text means being strong so that readers believe its contents In reality, the large majority of writers aim at providing important information readers need to know and persuading them to do certain things stated in legal texts To achieve these aims, writers should make and keep the flow of ideas smooth and compelling (Neumann & Tiscione, 2013, p 217) Accordingly, legal English writing needs to have the quality of being forceful because it contributes to the effectiveness of legal texts

To conclude, the quality of legal English writing can be evaluated in accordance with four standards, including brevity, clarity, precision, and forcefulness Even though each of them covers distinct aspects to assess the quality of legal English writing, they cannot be separated The reason is that legal texts are completely well-written when it achieves all four standards

IV The impacts of good or bad legal English writing

Legal texts have great significance in law practice They are productions of legal writers to give legal analysis and advice for clients, to convey clients’ will exactly, bring them as many benefits as possible, protect their basic legal rights, or at least prevent or minimise losses Therefore, good or bad quality of legal texts does affect clients profoundly In addition, legal writers can experience either positive or negative impacts

of their own writing

The quality of legal English writing influences clients in their actions, decisions,

or legal rights On the one hand, well-written legal texts allow them to know clearly what they can do in accordance with laws, or which possible options are more profitable

to choose Furthermore, writing legal English well is especially important in drafting contracts The reason is that clients’ rights can be protected completely if drafters know how to write advantageous and unambiguous clauses as well as amend or eliminate disadvantageous ones On the other hand, clients will suffer from negative effects of poorly written documents Normally, clients’ decision-making results from considering what lawyers inform them Consequently, if clients follow inaccurate information in the writing, they cannot make the wisest decision and incur losses or damage In addition, badly drafted contracts possibly put clients at a disadvantage compared with the other party The situation can get worsened when they have to deal with disputes concerning interpretations of an ambiguous clause in a contract This may lead to unwanted lawsuits which are usually costly and time-consuming Moreover, poorly written legal analysis will not be comprehensible enough to persuade judges to favourably decide a case As

a result, clients hardly become a prevailing party even though they should have had a chance to win the case

Legal writers can experience positive or negative effects of their writing themselves If the quality of their writing is good, they can build a reputation for writing legal English expertly and bringing considerable benefits for clients This also helps writers attract more potential clients On the contrary, bad legal English writing results

in loss of clients because no one wants to spend time and money for those legal writers who cannot protect their interests by writing legal texts clearly and precisely Moreover, legal writers can take responsibility for negative results of their badly drafted

documents For example, when a piece of legal writing gives inaccurate explanation about certain laws, it can make clients engage in unlawful conducts and suffer from any loss or damage If the act of giving imprecise explanation about laws constitutes a breach

of contract, drafters will compensate clients for the loss or damage.1

In conclusion, both clients and legal writers may get desired or unwanted results which reflect the quality of legal English writing In particular, well written papers protect clients’ rights and allow them to make informed decisions They also contribute

to great renown of lawyers In contrast, bad legal English writing results in damage for clients and puts them at a considerable disadvantage Additionally, it leads to losses of clients for legal practitioners due to bad reputation for being unable to write well to bring benefits for clients

1 Normally, lawyers will enter into a contract with clients before providing legal advice In the contract, they usually include an article specifying lawyers’ obligations One of them can be providing precise interpretations

of laws relevant to certain legal issues

CHAPTER TWO: LEGAL BACKGROUND IN

WRITING LEGAL ENGLISH

After briefly acknowledging the concepts, stages, and impacts of writing legal English, writers need to know that legal background also plays a prominent role in enhancing the good quality of the writing However, the concept of sufficient legal background is pretty unclear Therefore, Chapter Two will clarify how much is sufficient legal background, its impacts on writing legal English, and ways of having sufficient legal background

I How much is sufficient legal background in writing legal English?

Legal writers necessarily make contents of legal English writing appropriate with the governing legal system Sufficient legal background is an effective tool assisting writers in providing clear and precise legal information This means it enhances the effectiveness of legal texts Therefore, it is necessary to understand the concept of legal background and its standard of being sufficient

Legal background is understood as all legal regulations and other relevant information writers base on to give forceful legal analyses and well-founded answers for certain legal issues In particular, legal practitioners usually write with specific purposes, e.g giving clients advice, or arguing to persuade judges to rule in favour In order to accomplish these aims, they need to make their writing as forceful as possible

by incorporating and analysing any compelling legal principles, rather than relying on their own subjective reasoning or arguments Furthermore, to give precise legal principles, writers should thoroughly understand and select relevant legal rules from several legal reference sources These selected rules will form a legal background to presenting and developing forceful arguments in the logical writing This means legal background is all legal rules and information which writers base on to analyse legal issues and argue logically

It can be inferred from this definition that legal background will be sufficient for writing effectively when writers consider all regulations and other relevant information concerning specific legal issues they are dealing with This leads to the question: What sources of legal regulations and information should writers know or

consider to form the sufficient legal background? Regarding simple legal issues, it is easy to find applicable legal principles from one or two common sources of laws However, they are not always simple In order to explain the legally logical reasoning behind answers to complicated legal questions, writers are required to prepare relevant legal rules and information from six legal sources of reference systematically

- Firstly, according to Vietnamese normative legal documents system, state law is considered as the only official source of law (Quy, 2013, p 27) The reason is that, according to Law on Promulgation of Legal Documents 2015, a document is recognised as an official legal document when it includes legal norms, and when it is officially issued by state agencies in accordance with the authority, formats, sequence

of steps and procedures.2 Moreover, state law is one of the most common and important sources of reference that the large majority of legal practitioners consider applying to their current case

- Secondly, customary law has been recognised widely in law practice In fact, it is not regarded as official sources of law because it is not issued by competent authorities as state law in accordance with Law on Promulgation of Legal Documents

2015 However, the Vietnamese government has considered applying it in solving legal

issues due to the changes in the economic social conditions (Quy, 2013, pp 28-43) In

particular, it includes widely accepted rules of conducts which have been formed with clear contents and repeated constantly in a long time.3 It helps regulate some issues which Vietnamese legislators could not anticipate appropriately to a special locality or

in certain legal relationships In reality, customary law can be divided into two groups: domestic customs which are applied in locally simple civil or commercial relationships, and international customs applied in complex and large-scale commercial relationships with foreign elements (Quang, 2017, pp 70-71)

- Thirdly, although precedents are not official sources of law, the Vietnamese government has recognised their application due to the trend of transplantation of common law approaches to precedents (Quy, 2013, pp 28-43) Specifically, precedents are arguments and judgments in certain cases and decisions

2 Law on Promulgation of Legal Documents 2015, Article 2

3 Civil Code 2015, Article 5.1

issued by the court; moreover, they are selected and officially recognised.4

Consequently, precedents are applied as legal rules to similar cases at the present

- Fourthly, Vietnam has become a signatory to international treaties governing relationships concerning issues of foreign investments, commerce, business, and contracts due to the international economic integration (Quang, 2017, pp 59-60) This means they are also an important source of legal regulations Therefore, legal writers need to refer to relevant treaties when preparing legal analyses about these issues Moreover, in case there is any difference in provisions on the same issue, treaties

to which Vietnam is a signatory have priority over other legal documents, except the Constitution.5

- Fifthly, there are also other sources, such as court judgments and decisions that are not recognised as precedents, and bills Even though these types of legal documents are not as binding as laws or precedents, they greatly assist writers in producing more precise and compelling papers by offering the possibility for predicting the likeliest results of similar legal questions and any potential problems resulting from approval of bills

- Finally, reference to precedential cases that a law firm of legal writers has handled is also considered as a legal source of reference (Quang, 2017, pp 55-59) This source is substantially necessary for reasons Firstly, it saves time for legal practitioners

to understand how their workplace dealt with similar legal questions and gain enough information useful for their current cases Subsequently, they can decide what further study needs to be made to write their legal answers precisely and compellingly Secondly, this source helps prevent a bad situation when different legal practitioners in the same law firm give different legal analyses for similar cases If clients notice any discrepancy between pieces of writing analysing the same legal issue, they will be skeptical about the authenticity and persuasiveness of what they read Accordingly, legal practitioners should consider reference to precedential cases of a law firm because this source allows them to produce more reliable writing