MKU Legal Research & Writing - Basic Principles of Legal Writing PDF

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SCHOOL OF LAW, DEPARTMENT OF PUBLIC LAW PARKLANDS LAW CAMPUS

BLAW 1101: LEGAL RESEARCH & WRITING MODULE LECTURER: MS. JUDITH NGURU – WALLA WEEK 9:

BASIC PRINCIPLES OF LEGAL WRITING

Objectives of this topic: To learn techniques for writing clearly and concisely in different legal professional contexts. Expected outcome of the topic By the end of this topic, you should be able to: Prepare legal documents in a manner that is consistent with the purpose and audience of the document in question; Draft legal documents that are consistent with the basic rules of legal writing. Content 9.1 Introduction to legal writing 9.2 Types of legal documents 9.3 Principles of legal writing  Audience  Purpose of writing  Use of active and passive language (voice)  Use of plain english  Use of legal terminology/language/ jargon  Use of latin phrases/words  Acknowledge the source of your information

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9.1

Introduction to legal writing

The main aim of legal writing is to communicate effectively with your audience. To communicate effectively one has to write clearly, concisely and precisely. The golden rule for clarity is that your writing should be comprehensible at first reading.

The test of good writing is whether you can convey to your readers exactly what you intend to convey Sir Ernest Gowers, The Complete Plain Words (Revised Edition, Penguin Books 1987)

9.2

Types of legal documents

Lawyers prepare various types of legal documents. These documents could be informal or formal documents.

Test your understanding Give examples the types of legal documents.

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9.3

Principles of legal writing

 Audience Keep in mind the type of audience you are communicating with. The type of audience dictates the tone and writing style that you shall employ. Your audience could be the court, the client, the public or the legal fraternity. NB:

Your writing style and tone changes with your type of audience

 Purpose of writing The beginning of good organization is knowing the purpose of writing. Your writing should achieve something. For example, is it to persuade or inform? That drive, along with your knowledge of audience, should define the form, writing style and the language of the document.  Use of active and passive language (voice) Active voice – where the subject of the sentence does the action.

Example 1: Example 1: Sentence written in active voice

The cat

sits on

(S)

(V)

the mat. (O)

Passive voice – the action is done to the subject of the sentence. In other words, the subject of the sentence is acted upon. Example 1:

Sentence written in passive voice

The mat (O)

was sat on (V)

by the cat. (S)

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The characteristics of active voice versus passive voice CHARACTERISTICS OF ACTIVE VOICE

CHARACTERISTICS OF PASSIVE VOICE

Personal style, Simple and easy to read, Informative and specific, Clear and precise, Direct, Short sentences.

Official style, Heavy to read, Evasive and vague, Ambiguous, Indirect, Long sentences, The passive style of writing is attractive to lawyers because it allows us room to manoeuvre.

General rule:

use active voice in your writing.

When can you use passive voice? There are instance whereby one can use passive voice.  Sometimes you may not want to name the actor, because you want to play down the actor’s role in the event – actor is irrelevant.  Sometimes it is the action that is important, not who does it –de-emphasize the actor.  Sometimes you may not know who did the acting – actor is unknown.  Sometimes you need to use the passive voice in order to connect the sentence with the preceding sentence.  Use of plain English One should write simply – mixing simple words and complex words.

Sentence construction Sentences should be short and should have a unity of thought’. Ideally, a sentence should convey a single idea. Keep your sentences as short as possible. Short sentences are easier to read than long sentences. The longer the sentence, the more the reader has to remember before being able to work out what message the sentence is conveying. In any piece of written work, the sentences will vary in length. However, if you find yourself writing a long sentence, pause to ask yourself whether it could be split into two separate sentences (or whether it could be split into two parts by the use of a semicolon).

Paragraph construction A paragraph is merely a collection of sentences devoted to a single topic. Each separate topic should be dealt with in a separate paragraph. Each paragraph should deal with only one topic. If a Page | 4

topic is too lengthy for a single paragraph, the topic can be divided into two or more paragraphs. Paragraphs that consist of only a single sentence should also be avoided.  Use of legal terminology/language/ jargon Legal language includes the proper use of legal terms, such as the correct name of a court, and the correct usage of words like “equity”, “negligence”, “foreseeability”, or “action”. They may have one meaning for a layman and another meaning to a lawyer. Use these words appropriately to give an accurate and clear expression to the matter being discussed. General rule:

remember who you are writing to – your audience

 Use of Latin phrases/words Examples – modus operandi, lacuna, locus standi, ex-parte Latin phrases should be in italics if you use them. Use them rarely and only where the Latin phrase is a “term of art”, such as ratio decidendi or obiter dictum. Use these words appropriately to give an accurate and clear expression to the matter being discussed. General rule:

remember who you are writing to – your audience

 Acknowledge the source of your information Legal argument often requires reliance on other legal authority – for example, sources of law. Authorities need to be cited, and properly. This will mean you need to use references, footnotes, and bibliographies/reference lists for your written work. This topic in essence  The aim of legal writing is to communicate effectively with your audience.  A learner should adapt their writing style and tone depending on the purpose and audience of the document in question.

General discussion question Explain the use of the following basic rules of legal writing: Use of passive and active voice Use of plain English Use of legal terminology

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Recommended readings:  Yusuf Kiwanda, The Exodus of Law and Legal Methods (Law Africa Publishing Ltd Kenya 2016) chapter 7  Lisa Webley, Legal Writing (3rd Edition, Taylor and Francis Group 2018) pages 21 -24  Terri Le Clercq and Thomas R Phillip, Expert Legal Writing (University of Texas Press 1995) chapter 6, 8 and 20

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