Thinking Makes Visible
In: Other Topics
Thinking Makes VisibleI. Introduction
Regardless of the legal specialty, location, or practice size, there is one truism that rings throughout the legal community: lawyers write. What students learn in the Legal Writing and Analysis, Appellate Advocacy, and other courses that fulfill the upper-level writing requirement is essential to becoming an effective advocate. As in many law schools' writing courses, students learn the basics for formulating, writing, and defending a legal argument — research, jurisdiction, use of authority, standards of review, and effective methods for completing written legal analysis.
II. Distinguishing Features.
Legal writing places heavy reliance on authority. In most legal writing, the writer must back up assertions and statements with citations to authority. This is accomplished by a unique and complicated citation system, unlike that used in any other genre of writing.
Legal writing values precedent, as distinct from authority. Precedent means the way things have been done before. For example, a lawyer who must prepare a contract and who has prepared a similar contract before will often re-use, with limited changes, the old contract for the new occasion. Or a lawyer who has filed a successful motion to dismiss a lawsuit may use the same or a very similar form of motion again in another case, and so on. Many lawyers use and re-use written documents in this way and call these re-usable documents templates or, less commonly, forms.
Legal writing extensively uses technical terminology that can be categorized in four categories:
a. Specialized words and phrases unique to law, e.g., tort, fee simple, and novation.
b. Quotidian words having different meanings in law, e.g., action (lawsuit), consideration (support for a promise), execute (to sign to effect), and party (a principal in a lawsuit).
c. Archaic vocabulary: legal writing employs many old words and phrases that were formerly quotidian language, but today exist mostly or...