4.5: Introduction to Written Communication in the Law Office

Legal practitioners draft a wide variety of written documents, including letters, summaries, pleadings, motions, discovery requests and responses, legal research memoranda, briefs, and contracts, to name a few. Regardless of the type or purpose of the document you are drafting, the same writing principles and mechanics apply to all of them. The next several chapters are designed to help you lay the foundation for quality, professional legal writing.

Getting Ready to Write

As Yogi Berra once said, “The best place to begin is at the beginning.” Legal writing has three stages:

1. Pre-writing (research, planning)
2. Drafting (writing)
3. Revising (rewriting, proofreading, editing)

Expect to spend 50% of your budgeted time in the pre-writing stage, and the remaining 50% in the drafting and revising stages.

Stage 1 (Pre-Writing)

The first stage involves factual and legal research, as well as general planning of how you will draft the required document. Let’s look at each of these steps.

Factual research. Most legal writing involves drafting documents related to client services (for example, wills, contracts, or other legal forms), or documents related to answering client questions. Regardless of the type of document you are drafting, you need a factual context. For wills, contracts, and most other legal forms, those documents will inform you as to the factual information you need to complete them. Most law offices have checklists and/or templates for those types of documents. In fact, you may have performed some of this “factual research” by interviewing the client, as discussed in previous chapters. Of course, you’ll want to discuss with your supervising attorney what information is required, the attorney’s strategy for obtaining the information, and the scope of your responsibility/authority for obtaining it.

Legal research. Keeping in mind your time and cost constraints, thoroughly research your issue(s). Your supervising attorney should provide you with guidance as to the best place to start your legal research. Often, the best places are statutes, administrative codes, and jury instructions. Remember to organize your notes by legal issue, using a separate piece of paper for each legal question that requires research. Doing so will help you when the time comes to experiment with issue organization in the drafting stage.

Planning. Before setting pen to paper (or fingers to keyboard), it’s important to know the purpose, identity of the intended reader, desired tone, and required content.

• Assess purpose. To inform, persuade, or advise; that is the question! How will you or your supervising attorney use the document? The purpose may be to inform the attorney and others working on the file of the current state of the law, as in a legal research memorandum. Sometimes the purpose is to persuade someone to adopt your view of the facts/law, as in a trial brief or settlement demand. Other times the purpose is to advise the client of the best course of action, given the facts and the state of the law. Your assessment of the document’s purpose will affect its tone and language.
• Assess audience. Who is your intended reader? Your assessment of the intended audience will affect your document’s tone, language, and degree of formality. For example, if your intended reader is an adversary, your tone will be more assertive. Similarly, if your intended reader has a legal or other specialized background, you are more likely to use legal or technical jargon in your document than if your intended reader is an average layperson. Additionally, the degree of formality will be higher if your intended audience is a Judge than it would be for a long-time client (but of course, your tone will always be professional).
• Assess tone. What emotion do you want your document to convey? For example, a document having an informative purpose will use a neutral tone. A document having a persuasive purpose will use an assertive tone. Finally, when advising a client, a respectfully instructive tone is appropriate. The tone is conveyed primarily through word choice and sentence structure. Certain words have positive or negative connotations (or “feelings”) attached to them: there is a world of difference between a “child” and a “juvenile.”
• Assess content. What information must your document contain, and in what order? For simpler documents, such as letters, status memos, or transactional documents, checklists are a particularly effective means to ensure that you include all of the necessary components/information. For documents involving legal analysis, such as legal research memoranda or trial/appellate briefs, outlining each issue to be addressed is an important step.

Your supervising attorney will provide you with guidance with respect to these considerations, and the law office will likely contain templates or samples for you to use or follow. If you are uncertain about any aspect of a writing assignment, never hesitate to ask for clarification or additional guidance.

Stage 2 (Writing/Drafting)

Once the planning is complete, it’s time to move to Stage 2: Drafting. In this stage, you will use your checklist/outline from Stage 1, as well as your assessments of audience, purpose, and tone to start writing. Remember, you probably have about 50% of your budgeted time to spend in Stage 2 and Stage 3 (revising).

How much time you spend drafting versus revising depends on the type of writer you are. Some people spend a lot of time on their first drafts, revising as they go, such that very little revision is needed once that first draft is complete. Others are more comfortable getting their ideas down on paper (or computer) very quickly; these people spend much more time (hopefully!) revising than drafting. Whatever your personal style, plan to spend quality time in each stage.

When you are starting your first draft, there are several things to consider to help you keep in mind what the final product should look like.

• Format. How should your documents look? Many legal documents require a specific format, with specialized headings and/or components. For example, letters are written on company letterhead. In Wisconsin, pleadings and other documents that are e-filed have required formats.
• Framework. How will you address the substance of your documents? Case Briefs and Legal Research Memoranda are based on formulas directing the order in which to address components. Letters and other legal documents use different components to ensure the proper or expected order of content. Different lawyers may use frameworks that differ slightly from the frameworks you will see in this class, but most of the components will be very similar. Before starting your first draft, make sure you know your supervising attorney’s preferences.
• Structure. How will you compose/construct paragraphs and sentences within each component of your document? Different documents call for different types of paragraph and sentence structures.
• Clear writing. Which words, grammatical structure, punctuation, etc., will best convey your message? Usually, simple, direct, short words and sentences are most clear. Above all, you must remain professional. The components of clear writing are discussed in the next chapter.

Sometimes the hardest part of writing is getting started. Again, looking at samples or templates within your law office can be very helpful, especially when you don’t know how or where to start.

The ultimate goal is that your readers understand what you are trying to convey to them. Whether you are writing a letter, a case brief, or a memorandum, your communication must be clear and organized. The proper formats, used at different times, will make your writing easier to read and understand. The time you spend planning, writing, and revising will pay off in the form of supervising attorneys who trust your work and then reward you with more interesting and complex work as you continue in your legal career.

Prewriting

Think about the last time you needed to write a paper. Did you sit down at your desk with your laptop, open up Microsoft Word to a new blank document, place your fingers on the keyboard, and start composing beautiful prose that flowed from your mind through your fingers onto the screen without any need to stop until you had finished writing a complete and perfect paper? Wait, does that not sound right? What about this: Did you sit down at your desk with your laptop, then get up to get a drink, then text some friends, then go to the bathroom, then return to your laptop and think to yourself, “I will never ever find a single word to write on this paper and the assignment is stupid and I just can’t”?

You could also be a student who has never written a lengthy paper, so you do not have prior writing experiences to reflect on. Maybe you are returning to school after some time out of school, and you cannot remember how you used to write a paper of any length. Or maybe you do not yet see how projects you have completed also count as writing projects, or at least will benefit from the same steps that are used in the writing process. Making a presentation to a boss, generating a lab report, and filling out spreadsheets with collected data are all projects that benefit from implementing the writing process, including these prewriting steps.

One of the biggest mistakes that writers make is to fail to consider the entire writing process timeline of a document. Prewriting, that time before you sit down to put words on a page, is an often-overlooked part of the writing process. There are two parts to prewriting. The first step is to assess what you need as a writer to create the best possible environment, and the second step is to perform the preparation steps that come prior to writing.

Self-Assessment

Assessing yourself as a writer is something that you should complete in-depth every semester. You should be sure to implement what you learn about yourself as a writer for every writing project you undertake, but you will not have to complete a full assessment each time.

For a starting point, consider completing this self-assessment questionnaire from Pam Jenoff, The Self-Assessed Writer: Harnessing Fiction-Writing Processes to Understand Ourselves as Legal Writers and Maximize Legal Writing Productivity, 10 Legal Comm. & Rhetoric: JALWD 187, 192 (2013).

Self-Assessment Questionnaire

Part One - Environmental/Atmospheric Preferences

• What is your preferred time of day to write? Why?
• What is your preferred writing environment? (Location? Activity or quiet?)
• What is your preferred writing medium? (Desktop, laptop, longhand?)
• Are there particular foods or beverages that enhance your writing experience?

Part Two - Substantive Assessment

• What are your writing strengths?
• What are your writing weaknesses?
• Describe some of your prior favorite writing experiences. Least favorite?
• Describe your writing style.
• How do you like to begin a writing project?

You should consider these questions to be a starting point to assess yourself. Other things you can consider for environmental and atmospheric preferences include what you prefer to wear when you write, whether you want to listen to music, and how much space you like to have to spread out your materials. When completing your substantive assessment, also ask yourself what evidence you have to support your strengths and weaknesses. Ask why you identify certain previous writing experiences as favorites and least favorites; what do the favorites have in common and what sets them apart?

Once you have determined what your preferences are to create an ideal writing environment, you will then need to assess whether you can meet those preferences. If you cannot, and chances are there will be times when you cannot, have a plan for what to do to cope with writing environments that are less than perfect. Consider how you can use your current environment to work best for you. If you have to write in a noisy environment, can you use earplugs or noise-canceling headphones? If you do not have access to a desk, can you use a dining room table? If your internet is unstable, can you go to a library or coffee shop?

Preparation Steps

The second part of prewriting is the series of steps that you should take prior to sitting down to put pen to paper. This part should feel familiar! However, many people forget to include these steps as vital parts of the writing process, which can result in either people not budgeting sufficient time for these steps or feeling like they are wasting time when they should be writing. Paying careful attention to these steps of the writing process is just as important as the others! This list is an overview of the prewriting process that you should use before starting to compose your written document:

1. Read the assignment and any accompanying documents.
2. Gain mastery over the facts.
3. Develop your research plan.
4. Read the authorities you find.
5. Develop what categories you will use to determine relevancy.
6. Retain the authorities that are relevant to deciding your legal issue.
7. Analyze the remaining authorities to determine what narrow issue to use to answer your legal question.
8. Map out how you will use the authorities to support the conclusion you draw.
9. And then, write.

Conclusion

Accept that there is more to creating a quality written document than just the time spent typing away on the keyboard. Discover the set-up that works best for you and build in time to your writing process to lay the groundwork that sets you up for success.