Legal writing is significantly different from writing in any other academic or professional discipline. Purpose, content, format and style will vary significantly depending on the type of legal document, such as memoranda, facta, client letters, and case briefs.
Certain writing techniques, however, are applicable to all forms of legal writing. The main objective in legal writing is to draft a document that can be easily and accurately understood by your reader, with as little ambiguity as possible. The following writing techniques help to accomplish this objective:
Use first point writing: The first sentence of each paragraph should set out the major idea or argument of the paragraph. First point writing differs from the more common “topic sentence” in that the first sentence states the conclusion of the paragraph rather than introducing the argument. The following sentences should support the conclusion through legal argument and reference to authorities. A hurried reader should be able to read only the first sentence of each paragraph and understand your arguments.
Know your audience: Effective legal writers must appreciate their audience. The complexity of legal arguments and the use of legal terminology should depend on whether the intended audience is a professor, lawyer, judge, or client. A letter to a client should not be as technical or complex as a document intended for a judge or professor.
Be clear and concise: One of the most important, yet often most difficult, skills is to keep legal writing clear and concise. Writing concisely is arguably the most important technique in all legal writing. If a sentence or paragraph can be effectively stated in fewer words, then it is often preferable to do so. Keep only the necessary components of a sentence that are required to illustrate a point. Omit any additional information that is unnecessary, unrelated, or may distract the reader. Avoid long sentences and paragraphs. A general strategy is to keep one idea per sentence, and keep the paragraph length between three sentences to a page. Furthermore, although legal writing can involve complex issues and concepts, the language should be kept as simple as possible. Simplicity does not mean the writing should be informal; rather, it involves the avoidance of unnecessary legal jargon or verbose sentences. The purpose is to ensure the reader understands your arguments.
Organize your writing logically: A legal document should follow a coherent logical order. From paragraph to paragraph and sentence to sentence, the paper should be clearly and logically organized. The reader should be able to read the entire document without confusion. Headers help to organize a paper and provide signposts to assist the reader to follow the argument.
Consider formatting: There are conventions which should be followed for most documents. Certain documents, like facta, have a comprehensive and detailed set of rules and guidelines which cover everything from the organization and the size of font which may be used, to the way pages should be stapled together. Refer to the relevant authority for these rules.
Facts: The facts of the case which are relevant to the legal dispute between the two parties. Generally, the relevant facts can be summed up quite succinctly and should not exceed a paragraph or so.
Issues: The legal issues between the two parties that the judge must resolve. What are the parties arguing about? When stating the issue, it is important to be as specific as possible: “whether consideration moved from A to B” is preferable to “whether there was a valid contract between A and B.”
Analysis: The legal analysis undertaken by the judge to answer the issue. It is helpful to note the starting point of the judge’s analysis—this is generally the relevant law. Next, describe how the judge applies the relevant law to the facts. There will often be a point of ambiguity where the application of the law is not clear. The critical part of the analysis is how the judge resolves this ambiguity. Does she rely on past cases which have considered the issue? Does she reason by analogy with settled areas of law? Or does she come to her conclusion through interpretation of a statute or contract? Whatever the method, pay attention to the reasons given by the judge for accepting a certain approach as the correct one.
Ratio: The part of a judge‘s reasoning that directly supports the conclusion. Additionally, it often means the legal rule or principle that is created by the case.
Memorandum: A legal memorandum is a document that explores both sides of a legal issue. The purpose of this document is to give a balanced analysis of a particular legal issue based on the current law. The particular structure is dependent on the final purpose of the document (i.e. written for a professor or lawyer).
Factum: A factum is a persuasive legal document submitted to a court to advocate a particular position. Unlike a memorandum, which shows a balanced analysis, a factum is trying to advocate a particular point and persuade the court that this argument is in fact correct. A comprehensive guide to writing a factum, provided by the Court of Appeal for Ontario, can be found at the following link.