AN INTRODUCTION TO LEGAL WRITING STYLE

1. AN INTRODUCTION TO LEGAL WRITING STYLE Professor Alan (Al) Canner, CU Law, fall 2006 Adapted from a presentation by Richard C. Wydick

2. Legal briefs and memoranda are formal documents. Do not use contractions. Do not write in the first person. Do not write in the second person. Do not ask rhetorical questions. Do not use slang unless you are quoting.

3. Capitalize “court” correctly. Capitalize “court” only when referring to the United States Supreme Court, when giving the full name of any court, or when referring to the court you are addressing. Examples: The Arizona Supreme Court recently decided the issue. In Smith, the court [not Court] stated . . . . This Court [not court] should deny the Defendant’s motion.

4. Capitalize the full title of litigation roles only when they refer to the parties in your case. Examples: The Defendant in this case was properly served. In Jones, the defendant was a motorcycle dealer.

5. Capitalize the full titles of litigation documents in your case, but not other references to them. Examples: Plaintiff failed to respond to Costco’s Request for Production of Documents. Plaintiff failed to respond to Costco’s document requests.

6. Capitalize full and shortened forms of names of governmental units, official titles, or acts. Examples: All appeals must be brought before the Department of Human Services. A recipient can bring a civil action only if the Department refuses to reinstate the recipient’s benefits. Animals are protected under the Animal Welfare Act. However, the Act does not protect farm animals.

7. Do not write in headline style. Do not drop the articles a, an, and the from your sentences. • Examples: • [Incorrect] In Jones, buyer of 1989 Toyota sued dealer for breach of warranty. • [Correct] In Jones, a buyer of a 1989 Toyota sued the dealer for breach of warranty.

8. Be consistent in what you call people and things. • If you start with “factors,” stick with “factors”; do not switch to “elements” or “considerations.” • Example: • [Incorrect] The Toyota entered the intersection after stopping at the stop sign. The car was accelerating when it struck the van. The impact caused the vehicle to roll three times.

9. Avoid footnotes. • Footnotes are appropriate in law review articles but generally frowned upon in court documents.

10. CASES AND COURTS

11. “Court” is a single entity and is therefore singular, not plural, regardless of how many judges are on the court. • Examples: • [Incorrect] The court noted that they were bound by the Webster decision. • [Correct] The court noted that it was bound by the Webster decision.

12. Refer to decided cases efficiently. • After fully citing a case, refer to it in your text by the name or the abbreviated name of the first party to the case, or to the other party if the first name is not distinctive. • Examples: • [Correct] In Webster, the court established a new rule. • [Incorrect] In the case of Webster, . . . . • [Incorrect] In the Webster case, . . . .

13. Be precise in describing what a court did. Courts often: • grant or deny a motion • sustain or overrule an objection to evidence • accept or reject an argument • hold on an issue of law • find on an issue of fact • rule on an objection to evidence, motion, or issue of law • affirm, reverse, or modify a judgment or order of a lower court • remand a case to a lower court

14. Courts do not have feelings and do not argue. • Write that the court noted, articulated, stated, reasoned, or recognized something, not that it felt, believed, or argued something.

15. Use the past tense to describe the facts in a decided case and what a court stated or did. • Examples: • The court in Hill stated [not states] that the rule is based on sound public policies. • In Hill, a pit bull bit [not bites] a child. • Courts, not cases, make statements. Therefore, write “the court in Hill stated” or “the Hill court stated,” not “Hill stated.”

16. On the other hand, express the rule from a case in the present tense. • Example: In Hill, the court held that an owner of a dangerous animal is [not was] strictly liable for injuries caused by the animal.

17. Use the present tense when referring to statutes and rules. • Example: Section 2-719 states [not stated] that if a limited remedy fails to satisfy its essential purpose, the buyer can resort to other remedies. • Exception: When discussing the former text of a statute or rule that has since been amended, use the past tense. • Example: Prior to the 2004 amendments, section 2-719 stated . . . .

18. NAMES

19. Refer to the parties in your case (not in decided cases) by their proper names, unless their litigation roles are more persuasive. • Using a party’s name rather than “Plaintiff” or “Petitioner” prevents confusion and makes your case more vivid. • Generally, avoid using first names alone. • Omit titles such as Mr., Ms., and Mrs.

20. Introduce short-form names efficiently, and capitalize them. • Examples: • [Correct] This case involves a dispute between Daniel Simon and Janet Garcia. Simon and Garcia entered into a contract in 1987. • [Correct] Paul Young, William Luther, and Joe Jones (“the Buyers”) are Colorado residents. • [Incorrect] Paul Young, William Luther, and Joe Jones (“the buyers”) are Colorado residents.

21. “The” is optional before litigation roles in your case, as long as its use or omission is consistent. • Examples: • [Correct] The accident occurred while Plaintiff was driving south on Elm. • [Correct] The accident occurred while the Plaintiff was driving south on Elm. • [Correct] In Jones, the plaintiff sued for breach of warranty. • [Incorrect] In Jones, plaintiff sued for breach of warranty.

22. Refer to the parties in a cited case by their real-life roles (such as “tenant” or “employer”) rather than their litigation roles (such as “plaintiff” or “appellant”) or their names. • Example: In Smith, the buyer bought a computer that broke after only three months. The seller never successfully repaired the computer.

23. A business or institution is “it,” not “they.” • Business entities (such as corporations and partnerships) and institutions (such as universities and government agencies) take singular pronouns. • Example: The FBI investigated the crime. It [not they] concluded that Johnson was present at the crime scene.

24. Refer to legal arguments as if they were made by the parties, not by their lawyers. • Write “IBM will argue,” not “Counsel for IBM will argue.”

25. TIPS ON USING PLAIN ENGLISH

26. Avoid Legalese. • Do not imitate the writing style of cases in your casebooks. Avoid archaic and stilted terms like aforesaid and hereinafter and said (when used to mean the or that).

27. Use familiar, plain words. • Tell, not apprise • Go, not proceed • Start or begin, not commence or initiate • Show, not evince • Later, not subsequently

28. Omit needless words. • Wordy prepositional phrases: • for the purpose of = to • in order to = to • in order for = for • in the event that = if • in view of the fact that = because • with respect to = about, concerning, regarding

29. And more needless words. • Redundant phrases: • the area of tort law = tort law • ask the question = ask • general consensus = consensus • Needlessly abstract phrases: • The allegations were serious in nature = The allegations were serious • At the trial court level = In the trial court

30. And even more needless words. • Needless introductory words: • The law is that for a statement to be privileged = For a statement to be privileged or A statement is privileged when . . . . • It is important to note that = [just note it] • It can be seen that Hill involved the same issue = Hill involved the same issue • Needless modifiers: • very important = important • rather unusual = unusual

31. Avoid freezing the action in a noun (nominalizations). • conduct an examination = examine • make a decision = decide • possess knowledge = know • made a request = requested • was a violation = violated

32. Generally, prefer short sentences and paragraphs to longer ones.

33. Generally, use the active voice, not the passive voice. • Examples: • [Passive] The house was searched by the police. • [Passive] The house was searched. • [Active] The police searched the house.

34. Use parallel construction, which requires analogous units in a sentence to have the same grammatical structure. • Examples: • [Incorrect] Sally likes to swim, walking, and she likes to run. • [Correct] Sally likes to swim, to walk, and to run. • [Correct]Sally likes swimming, walking, and running.

35. Always use the serial comma in a series of three or more elements. • The serial comma is the comma prior to the final conjunction in a series of three or more elements. • Examples: • [Correct] The tenant, the landlord, and the owner had an acrimonious discussion. • [Incorrect] The tenant, the landlord and the owner had an acrimonious discussion. • [Correct] The tenant, the landlord and owner, and the agent had an acrimonious discussion. • [Incorrect] The tenant, the landlord and owner and the agent had an acrimonious discussion.

36. However, if there are commas within an element in a series, separate the elements with semicolons. • Example: The defendant, in an attempt to mitigate his sentence, pleaded that he had been despondent over the death of his wife; that he had lost his job; that his landlady had threatened to have him evicted; that he had not eaten for several days; and that he had, in this weakened condition, been unduly affected by an alcoholic beverage.

37. Possessives of Singular Nouns • Generally, form the possessive by adding an apostrophe followed by an “s.” • Examples: • The party’s lawyer was present. • William Jones’s lawyer was present. • O.J. Simpson’s house • There are traditional exceptions for some singular nouns ending in “s” (e.g., Jesus’, Euripedes’, Xerxes’).

38. Possessives of Plural Nouns • Generally, form the possessive by adding an apostrophe after the “s.” • Examples: • The parties’ lawyers were present. • The Simpsons’ lawyers were present. • Closely linked nouns or proper names are often considered a single unit when the entity possessed is the same for both. • Examples: • Nicole and O.J.’s house • His aunt and uncle’s will

39. Possessive of “It” • The possessive of “it” is “its,” not “it’s.” • Examples: • [Correct] The trial court stated in its findings of fact . . . . • [Incorrect] The trail court stated in it’s findings of fact . . . . • “It’s” means “it is.”

40. Quotations • Use quotations sparingly. • When using a quote, make sure that the quoted language is absolutely accurate (with any alterations indicated) and that a proper citation is provided.