Draft It With Style
Guidelines for creating effective legal writing..
By Jeffrey A. Helewitz
September/ October 2001 IssueIn legal writing, as in most other endeavors in life, presentation is
everything (well, almost everything). The most brilliant and insightful legal research
might prove fruitless in furthering a client’s proposition if the research results
appear in a confusing or inarticulate manner. Conversely, mere adequate analysis of legal
precedent may prevail if presented in a forceful and easily readable fashion.
Many people who are new to the process of legal writing,
as well as some seasoned veterans, encounter certain stylistic problems that are not
afforded much attention in the short span of a legal writing course. These stylistic
conundrums — beyond basic research and writing strategies — can make the
difference between an argument that convinces the reader of its veracity or loses the
reader in confusing verbiage. The practical stylistic problems noted here are the most
frequently encountered difficulties faced by the novice legal writer. Note, however, this
article presumes you have fully researched and analyzed your argument and are now
attempting to present the results in the most effective manner possible. The specific
stylistic problems are:
- the appropriate use of quotations;
- when, or if, to footnote;
- effective use of signals;
- the meaning of Id., supra, infra and op. cit.;
- when to string cite.
To Quote or Not to Quote?
A quotation is a phrase taken from another source that is incorporated into a
different work. As every legal professional knows, the law decries creativity, and the
purpose of legal precedent is to convince a reader the proffered proposition isn’t
new or original, but merely a reiteration of a longstanding judicial precedent.
What better way to underscore that fact than by quoting
from an authoritative legal source?
Quotations may be effective, or ineffective, as a
persuasive tool depending on how they are introduced in the writing. The greatest mistake
you can make is to forget the purpose of writing is to be read; therefore, you must always
view your product from the perspective of a potential reader.
This means anything that might confuse, annoy or cause a
loss of interest for a reader should be avoided. The test is whether you, when reading
someone else’s work, would be confused, annoyed or disinterested by the presentation.
Consequently, when using a quotation in a persuasive legal document, you should be aware
of the visual impact the quotation will have on the reader.
Quotations should be brief and, of course, set off by
quotation marks. If the quotation is included as part of a sentence, the effect should be
to present the authority without interfering with the reader’s thought process.
However, sometimes a desired quotation is too long to be
placed as part of your regular prose, and you might be tempted to insert a block
quotation.
The current texts on legal writing detail how such block
quotations are to be inserted, but generally fail to discuss their impact on the reader.
Most people, when presented with a block quotation in the
middle of the prose they are reading, tend to view the quotation as intrusive and rarely
bother to read it, skipping over to the next prose section. Avoid including anything that
could cause you to lose the audience’s attention.
Ask yourself if, as a reader, you were to encounter a
long block quotation in the middle of a page, would you read it? If you would skip it, it
should not be used.
However, the importance of the quotation might be
significant to your argument, and it still should appear in the document. This can be
accomplished simply by paraphrasing the quotation or breaking it up into short quotations
to be integrated into the regular prose. You might also place such material in a footnote,
as will be discussed later. Any of these options will tend to keep the reader’s
attention focused on your argument instead of distracted by a block insert.
Another question that may arise with respect to
quotations is the appropriate method of using a quotation that was quoted by an authority
being cited — a quotation within a quotation, like hearsay within hearsay. You have
several options in presenting these statements without confusing the reader.
The first, and probably the most favored option, is to
quote the source directly by citing the legal authority that articulated the phrase. This
makes the use of the stated quotation more forceful than attempting to cite a quotation
within another authority.
If the original source is unavailable (all sources should
be individually checked for accuracy), you may paraphrase the quotation and attribute it
to the citing authority. This method might not be as effective as citing the original
authority directly, but it does provide a more current authority for the concept (the
citing authority must have appeared after the authority making the statement).
Finally, of course, you can simply indicate the quotation
was cited in the citing authority.
Although perfectly permissible and effective, depending
upon its visual impact when printed, it may appear to be a bit confusing to the reader who
may have to stop following your argument to decipher the source of the quotation. In
deciding which alternative to use, always be aware of the visual effect of the selection
on the reader.
Getting to the Bottom of a
Footnote
For certain types of legal documents, such as law review articles and
those in which constant reference to statutory material is employed, a footnote can be an
effective tool to avoid having the reader wade through long citations. However, for the
majority of memoranda and other documents prepared by most law offices, a footnote can be
a distraction. Either the reader will stop following the prose to read the footnote, or
the reader will be aware there is a footnote without reading it, which can disrupt
concentration on the argument at hand.
Further, footnotes are typically used, exclusive of
presenting citations, to introduce tangential concepts. If the concept is that tangential,
it probably doesn’t assist the writer’s argument. Conversely, if the concept is
not tangential, it probably should appear in the body of the document rather than as a
footnote.
A footnote is more or less an aside, something that
affects the main thought but is not necessary to complete that concept. As a general
statement, except in limited circumstances, footnotes are intrusive and should be avoided
in order to present an uninterrupted and compelling argument.
Are You Signaling Me?
Signals, short words or phrases used to introduce a legal authority, are
an effective means of short-handing legal precedent. Signals assist the reader in
understanding quickly the strengths of your legal statements. However, most new legal
writers either abuse or misuse signals, which, if properly employed, can be an effective
time-saving method of presenting a legal argument.
The various legal research and writing texts and
authorities, such as “A Uniform System of Citation,” discuss the use and
meanings of all of the standard signals. However, in everyday practice, few of these
signals are actually used, and often are used inappropriately.
The most common error associated with the use of signals
is for a writer to indicate the authority by the signal “See,” believing this is
the strongest introductory signal possible. It isn’t. If the authority directly
states the proposition, no signal should be used. “See” is used if the
proposition isn’t directly stated by the authority, but supports that proposition.
“See” requires an inferential step between the authority and the proposition.
Therefore, if the source of the legal statement is the indicated authority, don’t use
any introductory signal. If the original authority has already been cited, and you wish to
indicate additional support for the proposition, you should use “See also” as
the signal, not “See.”
Contra indicates the cited authority directly
states the contrary of the proposition presented; it’s the reverse of using no signal
for a supporting authority. However, the use of contra should be avoided if
possible. This signal indicates there is authority directly against your proposition,
which can have the effect of weakening that proposition in the eyes of the reader.
If such contrary authority exists, it must be mentioned,
but should be downplayed. Sometimes it may be more effective to use a full phrase, such as
“although Smith v. Jones suggests a different approach, in Brown v.
Green the court states. …” This method of presentation indicates contrary
authority but downplays its importance.
Although there are several other commonly employed
signals, the above-referenced ones are the most typically encountered. Once again, when
using signals, be aware of the effect the signal has on the reader. The most effective
argument has no signals because all of the authorities directly support the stated
proposition.
Cite Fights
Once an authority has been fully cited, there is generally no need to
repeat the complete citation whenever that authority is referred to throughout the text.
To avoid repeating the citation, you can use short form citations such as Id., supra,
infra, and op. cit., however their use should be limited.
Id. is used to refer to an immediately preceding
authority.
However, if the complete citation appears on one page and
the next time the authority is cited is on a subsequent page, the use of Id.
might require the reader to turn back to the earlier page. Doing so would thereby
interrupt the reader’s concentration, which defeats the point of the writing
ultimately.
As a general, stylistic rule of thumb, although
appropriate, only use Id. if the complete citation appears on the same page.
Supra is used in the same fashion as Id. if
citing such items as legislative history, books, pamphlets, services and so forth. It
isn’t used for cases or statutes. Historically, supra had been used as a
short citation format for an earlier cited authority that was not the immediately
preceding cited authority, but this use has changed. No reader wants to search back 10
pages to find a citation. Therefore, if the case, statute or other authority doesn’t
appear on the page in question, it’s a good idea simply to repeat the citation.
Finally, the signal infra is used if the
citation for the authority is going to be given later on in the document. This also causes
a break in concentration for the reader, and should be avoided. Remember, making a reader
search for a signal may affect his or her ability to follow your legal argument.
Op. cit., a variation of Id., supra and
infra, isn’t used in most legal documents, such as court papers and
memoranda, and therefore should be avoided where possible.
Don’t String Me Along
Probably the most difficult task for a legal researcher and writer is to
discard the portions of his or her research because of lack of space or appropriateness of
the authority. Many writers simply can’t let go of their hard-researched cases, and
are tempted to show the reader the depth of the research by including these cases as a
string cite.
A string cite is simply a list of authorities given as
additional support for a proposition.
Visually, string cites present a break in your presented
argument. Although string cites may indicate a depth of support for an assertion, most
readers will simply skip over such authorities, thus wasting the your effort and
cluttering the presented material.
If you feel absolutely compelled to use string cites, the
number of authorities should be limited to between three and five — any more has the
same effect as a block quotation: The reader’s attention is lost. The purpose of
legal writing is to persuade and inform the reader, not confuse.
It’s All About Style
All of the problems listed here deal primarily with visual style.
Methodology of research, legal analysis and verbal selection are all unique to the
individual, and when creating a legal argument you must feel comfortable with your own
particular methodology.
However, when it comes to the actual presentation, you
must be cognizant of the impact your document will have on your readers — the person
whom you are attempting to persuade.
Avoid including anything that distracts the reader from
the logic of the argument — block quotes, string cites or unnecessary word usage.
Remember, to keep in mind that any visual presentation that would distract you in the text
will also distract your readers.
Remember: You should not feel forced to forego your
particular writing style, but you should simply be aware of the impact of your individual
style on an audience. |
