Chapter 16

Presenting a Clear, Concise Legal Writing Style

IN THIS CHAPTER

Structuring sentences effectively

Using great grammar and perfect punctuation

Organizing your arguments

Avoiding writing troubles

Writing legal documents is one of the most important things you do as a paralegal. Whether you’re composing a letter, drafting a document, or writing a memo, you need to use a writing style that’s grammatically correct and easily understood. Developing a good writing style requires practice, study, and hard work. However, if you get a handle on some basic rules, you’ll be well on the way to great legal writing!

Legal writing may use more technical terms and Latin phrases than other types of writing, but legal writing shouldn’t be confusing and long-winded. Somewhere legal writers have gotten the impression that big words and long sentences communicate importance and authority. In reality, big words and complicated sentences obscure your message and confuse your readers. Good legal writing is like good writing in general: clean, concise, and easily understood.

If your memos contain problems with grammar, punctuation, mechanics, or organization, you won’t communicate effectively and your research will go to waste. This chapter focuses on showing you how to avoid the errors we’ve seen paralegal students make most when they draft documents and prepare legal memos.

Corresponding Carefully

Everyone who works in the legal field should understand the importance of communication. Communication can establish and preserve rights, it can be used to win an argument or reach an agreement, and it could even be used against your client as evidence in court. These are ample reasons for you to focus on careful correspondence.

As a paralegal you’re working with a legal team on behalf of a client. As part of the legal team, you have to communicate in a way that effectively advocates the rights of your client. You must make sure that your communications never harm your client or your employer. Much of your communication will be written: documents, pleadings, letters, email, and, in some cases, text.

Written communication has permanence that verbal communication lacks. Any grammar mistakes that Shakespeare made in his plays and poems written 400 years ago are preserved today! Don’t let that scare you too much — your letters and emails are unlikely to be read by students in the 25th century. However, the things you write and the way that you write them will be preserved.

Now that you understand the importance of written communication to your paralegal career, we want to focus on two forms of written communication that are often overlooked: letters and email.

Letters that impact

Great legal letters are written with a purpose in mind. Ask yourself, “What is the objective of this letter?” Letters should begin with an outline and end with proofreading.

But having a purpose in mind doesn’t mean that you can’t be cordial. Even a sentence or two of “small talk” can show your audience that your firm is concerned about more than just bringing in business. This is especially true in communicating with long-standing clients or business associates. Be sure to remain professional in all your communications, even with colleagues that you consider friends. You never know who may eventually read your letters.

Anything that you send on your employer’s letterhead represents your employer and your clients. Be professional in your letters and never emotional. Even if you’re replying to a letter that is angry or rude, you still must be professional in your reply. You should also never write anything in a letter that compromises the position of your client or can be used against your client or firm in court. The rule is: When in doubt have your supervisor or a trusted colleague review the letter before you mail it. A minute of review can spare you a lot of regret!

Effortless emails

Emails and texts have an ambiguous role in the modern workplace. They have taken the place of both phone calls and letters, and sometimes they move so quickly that they almost take on the form of a conversation. In these cases, you may not even think of them as a form of written communication. Make no mistake, emails and texts are written communication, and as high-profile cases involving corporations and government agencies demonstrate, careless emails and texts can come back to haunt the writer.

Don’t send lazy texts and emails! Treat any correspondence written on the job as letters. Use proper grammar, punctuation, and capitalization. Don’t use the abbreviations you may use in your personal texts or emails. Spell-check your emails and proofread them. Have important emails proofread by the same people who look at your letters before you mail them. And save important emails as drafts before you send them. That way you can look them over once more before you click Send. Remember: Just like letters, texts and emails can’t be “unsent.”

Grammar: Grasping the Foundation of an Effective Writing Style

Like most people, you probably cringe at the prospect of studying grammar. The mere mention of the word often produces bad memories of diagramming sentences and memorizing complex rules. This section isn’t a grammar lesson — don’t worry! Although you may have hoped to leave the subject in the classroom, a precise understanding of grammar is fundamental for anyone who wants to write well. Fortunately, the essential rules of grammar are really quite logical, so bear with us as we tackle this unpopular subject — and return to this section whenever you’re writing a letter or legal document and you’re not quite sure which way to go.

Identifying the eight parts of speech

Your road to effective communication begins with constructing effective sentences. Sentences are made from words, and each word in a sentence has a function. In the English language, there are eight parts of speech: verbs, nouns, pronouns, adjectives, adverbs, conjunctions, prepositions, and interjections. We cover them all in more detail in the following sections.

Verbs

You can’t have a sentence without a verb. The only part of speech that is capable of being a one-word sentence is a verb. The verb expresses the action of the sentence — a lot of work for a single word!

There are essentially three categories of verbs. A verb can either be an action verb, a “to be” verb, or a linking verb.

ACTION VERBS

In your legal writing, you should use mostly action verbs. These verbs describe what the subject is doing. Use action verbs to form the most powerful and direct sentences.

You should use mostly action verbs in your legal writing. Passive verbs convey the state or condition of something and are essential when used sparingly, but action verbs form the most compact, direct, and understandable sentences. We discuss active and passive verbs in more detail in “Using active voice,” later in this chapter.

THE “TO BE” VERB

The verb “to be” (am, is, are, were, been, and being) is like an equal sign. It equates the subject with a noun or adjective. For example: Katy is a paralegal means Katy = a paralegal, and You are efficient means You = efficient.

LINKING VERBS

You use linking verbs in the same way as the “to be” verb. Linking verbs join (or link) the sentence’s subject to an adjective that describes the condition of the subject. Linking verbs are never followed by adverbs. Whereas the “to be” verb is merely an equal sign, linking verbs carry additional information or meaning. Common linking verbs are feel, seem, appear, look, taste, and smell.

Nouns

You’re undoubtedly familiar with the common characterization of a noun as a “person, place, thing, or idea.” And you probably know that a noun functions in a sentence in different ways. In the following sentences, the subject (Johnson) plays the principal role in the sentence; the direct object (opportunity) receives the action of the verb; the indirect object (reporter) receives the direct object; the object of a preposition (interview) and the object in a verbal phrase (candidate) serve as the receivers of the preposition or verbal; appositives (independent) clarify other nouns; and predicate nouns (woman) follow the verb “to be” and describe the subject.

Being a candidate with few secrets, Johnson, an independent, provided every reporter the opportunity for an interview. She was an honest woman.

Pronouns

We now turn to a special type of noun, the pronoun. Pronouns rename nouns and provide a means for avoiding the needless repetition of names and other nouns in a sentence or paragraph. You need to know the three types of pronouns: personal, indefinite, and relative.

PERSONAL PRONOUNS

You’re probably already familiar with the personal pronouns. They’re used to rename specific nouns, and they take two forms.

• Subjective personal pronouns: I, he, she, it, we, and they
• Objective personal pronouns: me, him, her, it, us, and them.

As their names imply, you use subjective forms when the pronouns function as subjects or predicate nouns and objective forms when the pronouns function as an object.

Collective nouns, such as group and jury, are common in legal writing. In most cases, these nouns are singular; therefore, you use the pronoun it to refer to them. You also use it when referring to company names — for example, “The jury has not reached its decision regarding the trucking company and its negligence.”

INDEFINITE PRONOUNS

Indefinite pronouns refer to generalities rather than specifics. Some common examples are everyone, somebody, anything, each, one, none, and no one.

All indefinite pronouns are singular, which means that they require singular verbs — for example, “None of the cases is settled.”

RELATIVE PRONOUNS

The third type of pronoun you need to know is the relative pronoun. Relative pronouns like that, which, and who link adjective clauses to the nouns they describe. Who refers to persons, which refers to animals and things, and that may refer to both persons and things.

Here’s an example:

She is a lawyer who is accustomed to winning. The cases that she handles are usually settled for large sums of money, which makes her a very rich attorney.

Note that the pronoun that introduces a restrictive clause, and which introduces a nonrestrictive clause. We discuss both types of clauses later in this chapter.

Adjectives

You could write without adjectives, but it would be boring! Adjectives describe and clarify nouns and other adjectives. Adjectives provide additional information and clearer descriptions of the words they modify. Choose them carefully because one precisely chosen adjective is more powerful than several vague ones.

Here’s an example sentence:

The demeanor of the stern judge cast a somber mood on the courtroom.

Stern describes the kind of judge, and somber describes the kind of mood. Without the adjectives, the sentence would be unclear:

The demeanor of the judge cast a mood on the courtroom.

Adverbs

Like adjectives, adverbs also clarify, but whereas adjectives usually modify nouns, adverbs primarily modify verbs. You can form many adverbs by adding –ly to adjectives. However, adverbs include all words and groups of words that answer the questions “Where?”, “When?”, “How?”, and “Why?”; adverbs can modify adjectives and other adverbs as well as verbs.

Here are some examples of adverbs:

The jury quickly discussed the case.

In the preceding sentence, the adverb quickly modifies the verb discussed.

The paralegal took lunch outside.

Here, the adverb outside modifies the verb took.

The legal team researched the issue yesterday.

In this example, the adverb yesterday modifies the verb researched.

Conjunctions and prepositions

The previous sections cover the main elements of the sentence. But you need to link these elements together — and that’s the job of the conjunctions and prepositions.

CONJUNCTIONS

You use conjunctions to join together words, phrases, and clauses. The three types of conjunctions are

• Coordinating: You’re probably familiar with the seven coordinating conjunctions: and, but, for, nor, or, so, and yet. These are the words most people think of as “conjunctions.” Example: The defendant neglected to file an answer and third-party complaint within the deadline, so the plaintiff prevailed.
• Correlative: This type of conjunction always appear in pairs: either/or, neither/nor, not only/but also. These conjunctions “correlate” two similar clauses in one sentence. When using the first two types of clauses, you must employ parallel structure. This means that the parts of the sentence joined by the conjunction must be grammatically equal. If you’re not clear on parallel structure, turn to “Employing parallel structure,” later in this chapter. Example: The trial court erred not only in allowing the defendant’s testimony into evidence but also by failing to grant the defendant’s motion to recuse.
• Subordinating: The third type of conjunction introduces dependent clauses and connects them to independent clauses. Although, because, if, when, and while are common examples of subordinating conjunctions. Example: Although the process server failed to serve process properly the first time, she successful served the defendant with the second attempt. As the name suggests, the dependent clause is made subordinate to the independent clause by the conjunction. Without the subordinating conjunction, the relationship between the clauses would be unclear and the sentence would be incorrect.

PREPOSITIONS

Whereas a conjunction links clauses within a sentence, a preposition joins a noun to a sentence. A preposition cannot function within a sentence without a noun, so you must always use a preposition in a prepositional phrase.

We would need several pages to list all prepositions, but common examples are about, above, for, over, and with. (You can think of a preposition as anywhere a little mouse can go: A little mouse can go over, through, under, around, and so on.)

Bad legal writing glorifies compound prepositions, which are several prepositional phrases that work as one preposition. Compound prepositions, such as at this point in time, with regard to, and by virtue of, are weak and imprecise — if you find yourself reaching for a compound preposition, try to state your point in simpler, more definite terms. For instance, you can shorten at this point in time to now, you can shorten with regard to to regarding, and you can shorten by virtue of to by. Remember: Good legal writing emphasizes precision and clarity.

The proper use of conjunctions and prepositions can add style and a sense of flow to your writing. The improper use of these elements is jarring to your reader. Take the time to figure out when and how to use conjunctions and prepositions, and you’ll be on your way to becoming a superior legal writer!

Interjections

Interjections are words that express emotion in the sentence. Rarely do legal documents or memos contain words like wow, darn, or shucks unless they’re included in direct quotations.

However, some four-letter interjections do make their way into settlement negotiations. If you have to quote four-letter interjections in a document, quote them accurately. If the exact wording of the statement is unnecessary, paraphrasing may be more polite.

Recognizing the elements of a sentence

The eight parts of speech work together to form sentences, but the thrust of your sentences’ information is conveyed by three main elements: the subject, the verb, and the element that the verb links the subject to. To locate the main idea of a sentence, you should focus on these three elements. Other information in the sentence may be important, but it isn’t the main idea.

Subject, verb, and the third element

The subject is the main character of the sentence, the noun that carries out the action of the sentence or whose condition the sentence describes. The verb describes the action or links the subject and the rest of the predicate (which is the verb and all that comes after it).

Forceful writing includes an abundance of carefully chosen action verbs. Depending on the verb you use, the third important part of the sentence could be either a direct object, an adverb, an adjective, or a predicate noun. Placing the bulk of the sentence’s message within the three main elements will improve the clarity and impact of your written work.

Your subject will always be a noun (person, place, or thing), so the number of possible sentence structures hangs on your sentence’s main verb. Because there are four types of verbs (two kinds of action verbs, “to be” verbs, and linking verbs), there are four essential sentence structures:

• Subject + Transitive Verb + Direct Object: “The attorney argues the case.”
• Subject + Intransitive Verb + Adverb: “The paralegal responds quickly.”
• Subject + “To Be” Verb + Adjective or Predicate Noun: “The client is nervous.”
• Subject + Linking Verb + Adjective: “The jury feels tired.”

Action verbs can be either transitive or intransitive. Don’t let these names worry you! The distinction is simple: Transitive verbs can immediately be followed by a noun, and intransitive verbs can’t. This is because a transitive verb requires that its action be received. Here’s an example: The court supported the motion. On the other hand, a noun can’t receive the action of intransitive verbs: The appellate court agreed with the plaintiff’s argument.

Phrases and clauses

After you have your three main elements, the only possible additions to the sentence are more nouns, adverbs, and adjectives. These additions provide more information about the sentence’s main message and appear as single words, phrases, or clauses.

Phrases and clauses are groups of words that work together to form a single part of speech, such as an adverb or adjective. Clauses contain their own subjects and verbs; phrases do not. A good understanding of clauses is essential to a good understanding of sentence structure and proper punctuation.

INDEPENDENT AND DEPENDENT CLAUSES

Clauses are either independent or dependent:

• Independent clauses are complete by themselves; no additional information is required.
• Dependent clauses express incomplete thoughts. Even though they contain subjects and verbs, they cannot stand alone as sentences without other information; they are sentence fragments.

Here’s an example of a sentence with both an independent clause and a dependent clause:

When the jury reaches a decision, it will return to the courtroom.

The independent clause in the sample sentence is it will return to the courtroom. No other information is required to complete this thought. When the jury reaches a decision leaves the reader wondering. The information is incomplete, so it’s a dependent clause.

To form a complete sentence, a dependent clause must be attached to an independent clause. The way you join the clauses depends on how the dependent clause functions within the sentence. The dependent clause that functions as an adverb begins with a subordinating conjunction and answers the questions how, when, where, or why:

The client shot the man because he was attacking her.

On the other hand, an adjective clause usually begins with a relative pronoun to provide more information about the noun it modifies:

Frederick is an employer who insists on perfection.

Dependent clauses may also function as nouns:

The client was oblivious to how much time had passed since the accident.

RESTRICTIVE AND NONRESTRICTIVE CLAUSES

Dependent clauses can be classified as either restrictive or nonrestrictive, and distinguishing between the two can sometimes be tricky. But knowing the difference helps you with punctuation.

• Restrictive: A restrictive clause is one whose presence is vital to the meaning of the sentence: “Steve never loses his cases that involve dog-bite victims.” The restrictive clause in this sentence provides essential information that pinpoints the particular type of cases Steve never loses. Without that clause, it would appear that the attorney never loses any cases!
• Nonrestrictive: A nonrestrictive clause provides clarifying information, but its presence isn’t necessary for the sentence to make sense: “Grace never loses her cases, which involve dog-bite victims.” The nonrestrictive clause makes a “by the way” statement; it provides additional information about what type of cases Grace handles. Her practice is limited to dog-bite victims, and she never loses a case.

Note that in the examples the restrictive clause begins with that and the nonrestrictive clause begins with which. Use commas to set the nonrestrictive clause apart from rest of the sentence. The restrictive clause is an integral part of the sentence and isn’t set apart by commas.

Bad legal writing often relies too heavily on the use of clauses. Clarify and simplify your sentences by replacing them with appropriate single words and phrases. You must also properly locate phrases and clauses within your sentence to emphasize the main elements of the sentence. Locating elements within the sentence is called structuring the sentence.

Sentence Structure: Positioning the Sentence’s Elements

You form sentences from a subject, verb, and third element, using the four structures mentioned in the “Subject, verb, and the third element” section, earlier in this chapter. Varying your style is a good idea, but essentially all sentences appear as one of the four structures. You can then add descriptive elements to these basic structures.

The key is to construct your sentence so it conveys its message clearly and precisely. Ambiguity occurs when the sentence’s descriptive elements cloud the main message either because they’re too numerous or because they’re improperly positioned. Generally, a clear, concise sentence contains one main message and an average of 25 words. Obviously, some sentences will be longer than 25 words and some will be shorter, but as a legal writer you should strive to convey a single message within 25 words.

If your sentence can logically be made into two complete sentences, consider breaking it up. Independent clauses can certainly be combined to form a sentence, but often two short sentences are clearer than one long one!

If you pay careful attention to the way your sentences are structured, you’ll greatly improve the way people receive your messages. If you use the sentence construction techniques mentioned in this section, you’ll produce more powerful writing.

Eliminating wordiness

Legal writing is plagued by wordiness. Historically, the writers of statutes and many case opinions held to the philosophy of “The longer the sentence, the better.” Anyone who has tried to decipher the points of long-winded statutes and case summaries will attest that this just isn’t so! As soon as a sentence has conveyed its point, your best bet is to end it and begin a new sentence.

The good news is that nearly all ABA-accredited law schools now contain a practical course on legal writing. In such courses, law students learn to write clearly and accurately using active sentences. Some of this training may filter into statutes, opinions, and legal briefs — and into the writing of the attorneys you work with!

Don’t try to impress your supervisor, client, or judge by using long phrases that sound impressive. It is not the length of your phrases, but the strength of your arguments that impress.

Be careful when you first try to simplify your writing. Sometimes efforts to shorten sentence length result in a series of choppy, disjointed sentences that read more like a reading primer for the first grade than a legal document! A treatment for this broken style is to discover the common element of the shorter sentences and create a slightly longer sentence that incorporates the other elements.

In the following sentences, the common element is the client:

• The client had been injured in a car accident.
• The client was distraught.
• The attorney decided to talk to the client.

The main idea of each sentence is very clear, but when you read the sentences together as part of a paragraph, the sentences read as if the author has the hiccups:

The client had been injured in a car accident. The client was distraught. The attorney decided to talk to the client.

You can combine these sentences into one graceful sentence:

The attorney decided to talk to the distraught client who had been injured in a car accident.

Another method you can use to smooth out choppy writing is to use the less important of two sentences as an introduction for the more important sentence:

The jury awarded the plaintiff damages of $100,000. It based its decision on the testimony of the expert witness.

Which sentence do you think is more important to the client? You can restructure the sentence as follows:

Basing its decision on the testimony of the expert witness, the jury awarded the plaintiff damages of $100,000.

The jury award forms the main clause and the incidental information of why they acted is the dependent clause.

You must work hard to avoid making your sentences too short and choppy or too long and complex. Remember: There is really only one way to improve your writing style: practice.

Positioning modifiers

Modifiers make up an important part of your writing, but you need to place them properly. Adjectives, adverbs, and other modifiers should be placed as closely as possible to the words they modify. This helps you avoid the problem of misplaced modifiers, which occurs when your modifier applies to the wrong word. When a modifier is misplaced, the results can be ludicrous:

The paralegal placed the schedule of depositions to be held in October on the top of the desk.

The sentence conjures up a picture of attorneys and their clients conducting October depositions while sitting on a desk. Positioning the adverbial phrase on the top of the desk adjacent to the verb placed clarifies the meaning of the sentence:

The paralegal placed on the top of the desk the schedule of depositions to be held in October.

Using active voice

The legal profession has begun to embrace using active voice. Legal writing texts include chapters emphasizing the importance of active voice in constructing clear arguments. Passive voice obscures the main idea of a sentence because it hides the subject. “Charles committed the crime” is more direct than “The crime was committed by Charles.” In the first sentence, written in active voice, the subject is the doer of the action; the message is clear. In the second sentence, written in passive voice, the doer of the action is obscured and the message is weak.

Passive voice does have a role in writing. There are some occasions when the doer of the action is unclear or unimportant. For instance, you may use passive voice when you’re not sure who committed an action, like when you’re describing damages in a car accident case where the perpetrator of the accident has yet to be determined:

The car was hit and dented on the left-front bumper.

Employing parallel structure

To improve your writing, you need to maintain parallel construction. This means that elements joined by a conjunction must be grammatically alike. Compare the following sentences:

The students study to maintain good grade point averages, for increased knowledge, and because they enjoy the admiration of their peers.

Although this sentence is not awful, it could be improved by using similar grammatical forms for the elements that are linked by the conjunction and:

The students study to maintain good grade point averages, to increase their knowledge, and to inspire the admiration of their peers.

The sentence is better balanced because all the elements joined by the conjunction are phrased as infinitives.

Punctuation and Mechanics: Mastering the Rules

Punctuation can be scary. Commas, semicolons, parentheses, and dashes. Where do they all go? Capitalization and quotation can be tricky, too. Actually, you can understand the rules of punctuation and mechanics with a little time and commitment. Remember: The proper use of punctuation and mechanics is essential to guide a reader through a sentence.

Rules for proper punctuation

The rules of proper punctuation may seem confusing, but when you have a working knowledge of some basic grammatical concepts, you’ll find them easier to follow. Unlike some aspects of the English language, particularly spelling, the rules of punctuation are pretty logical.

Periods and question marks

The two simplest types of punctuation to use properly are periods and question marks. Periods end declarative sentences (like this one). Periods also follow initials, as in Ph.D. and D. H. Lawrence, and abbreviations, like etc. But you don’t use periods for initials used in agency names, such as ACLU and YMCA, or for commonly used shortened forms, like ad (short for advertisement) or memo (short for memorandum).

Use question marks to end direct questions, such as, “Which document should I file first?” Don’t use a question mark with indirect questions, such as, “He asked me which document had to be filed first.” With indirect sentences, you’re not asking questions, you’re reporting questions that someone else asked. The only time you use a question mark to report someone else’s questions is when the question is a direct quote:

He asked me, “Which document has to be filed first?”

Commas

Although the period is the most often used mark of punctuation, the comma is the mark most often misused. You can’t write properly without the comma. But you shouldn’t simply add commas where you pause in a sentence. You add them in specific places for specific reasons.

SERIES

In a series of three or more expressions joined by one conjunction, put a comma after each expression except the last:

Mary, Bill, and Joan prepared the petitions, filed them in court, and placed copies in the office files.

When stating firm names, omit the last comma:

The firm of Goodwin, Spencer, Kolb and Weise represents the defendant.

Some employers prefer that the last comma be omitted in every series (not just in law firm names); be sure to follow the preferences of your supervisor.

OMITTED WORDS

Use a comma to replace words omitted from a sentence:

The Cupp document was filed yesterday; the Burton document, today.

In the second clause, the comma replaces the words was filed.

SEPARATION OF CLAUSES

When you join two independent clauses with a conjunction (such as and, but, or so), place a comma before the conjunction:

The bankruptcy suit was very complex, but the attorney had a skilled paralegal to help prepare the case for trial.

Also use a comma to set apart a beginning dependent clause:

Because you’ve worked hard, you’ll present a good case.

Do not use a comma when the dependent clause comes after the independent clause:

You’ll present a good case because you’ve worked hard.

PARENTHETIC EXPRESSIONS

When you include information that’s important but not essential to the meaning of the sentence, set that information off with commas. Sometimes it’s difficult to determine whether an expression is parenthetic or not, but the following classifications should help:

• Asides consist of words like however, in my opinion, and for example and are set apart from the rest of the sentence: “For example, the trial court in the Reschly case, in my opinion, was biased toward the defendant.”
• Appositives provide additional information about a noun that is important, but not essential to the central idea of the sentence: “The attorney for the opposition, Mr. Gall, has a scheduled court date.” Mr. Gall provides the reader with the attorney’s specific name, without that information, the sentence is still true. If you use the name as part of a title, do not use commas: “Attorney Gall requested a court date.”
• Titles and distinctions that follow a name should be set off with commas: “Jason Venner, J.D., is the attorney for Pottila Trucking Company, Inc.”
• Abbreviations such as etc., e.g., and i.e., should be set off by commas: “Enclosed are the copies letters, emails, etc., mentioned in the warrant.”
• Dates and place names actually contain parenthetic information and should be punctuated accordingly: “Boulder, Colorado, is the venue for the trials, which are set to take place on May 25, 2006, and July 19, 2006.” If the date is written 25 May 2006, commas are not necessary.
• Nonrestrictive clauses are, by definition, parenthetic. A nonrestrictive clause always provides information that is not essential to the meaning of the sentence, so you should always use commas to set it apart: “The accident occurred in Missouri, where both the plaintiff and defendant reside.” The second clause provides important information but is not essential to the sentence.

Only important information that isn’t essential to the sentence is included in a parenthetical phrase. Information that is interesting, but not important to the argument, shouldn’t be included in the sentence at all.

Semicolons

A semicolon looks like a period placed over a comma (;). This definition is supposed to remind you that the break formed by a semicolon is more definite than a comma but less final than a period. Here are some instances for semicolons:

• Joining two independent clauses: Because the semicolon forms a more definite break, you don’t need a conjunction: “It is almost midnight; I cannot finish this brief before tomorrow morning.” You use the semicolon instead of a period, because the sentences are related in thought — the reason you can’t finish the brief is probably because it’s almost midnight and you’re out of time.
• Beginning a second clause with a conjunctive adverb: Clauses that begin with conjunctive adverbs (such as accordingly, also, besides, consequently, furthermore, hence, however, indeed, likewise, moreover, nevertheless, otherwise, similarly, so, still, therefore, and thus) require a semicolon to separate them from another clause: “I should finish this brief tonight; otherwise, I will have to work on it during lunch tomorrow.” Note that a comma comes after the conjunctive adverb.
• Separating an enumerated series or a series of expressions punctuated by commas: Use semicolons when commas would be confusing: “The legal secretary’s duties include (1) drafting and filing legal documents; (2) corresponding with clients and opposing counsel; and (3) organizing information within the office.” Here’s another example, “Valencia, Mayo & Braun; Walton & Walton, P.C.; and Fielding, Burgess and Lloyd are just three of the firms with which we regularly correspond.”

Colons

Colons are unusual punctuation marks that can be used in unique ways. You can use colons in place of periods to separate two clauses, each of which could be a sentence. You can also use a colon to introduce a list of specifics, long appositives and explanations, or quotations that provide for the preceding clause.

A colon creates a more powerful impression than a comma and is more formal than a dash. But be careful to never use a colon to separate a verb from the third element or a preposition from its object:

She will be finished when she completes three projects: the deposition digest, the letter to Johnson & Brown, and the memo to her immediate supervisor.

Note that the following is incorrect:

She will be finished when she completes: the deposition digest, the letter to Johnson & Brown, and the memo to her immediate supervisor.

There are some special uses of colons that you should know for legal writing. Use colons in the salutation of a business letter, like this:

Dear Ms. Thompson:

Also use a colon between the hour and minutes when indicating clock time (for example, “4:30 p.m.”) and between a main title and its subtitle, as in “The book entitled Legal Research: A Guide to the Law Library will be available today after 4:30 p.m.”

Dashes

Like colons, dashes introduce long appositives, but they’re less formal and don’t often appear in legal writing. More commonly they separate a beginning series from the corresponding clause. You also use them to indicate abrupt breaks in the continuity of the sentence, but only when other marks of punctuation are inadequate:

Breakfast in bed, lunch by the pool, dinner by candlelight — such were the dreams of the overworked paralegal.

To create a dash on your computer, you can either type two hyphens (--), or you can actually enter a dash using your word processing program. If you use Microsoft Word 2003, you can go to Insert  ⇒    Symbol, select the Special Characters tab, highlight Em Dash, and click the Insert button. (If you use dashes frequently, you can use the shortcut key shown in the Special Characters tab of the Symbol dialog box.)

You should probably save the dashes for the fictional book you will write featuring an overworked paralegal who happens to be a superhero. Use more formal punctuation in your legal writing.

Another kind of dash, the en dash, is shorter than the em dash and longer than the hyphen. You can find more information on the difference between em dashes and en dashes in a style guide such as The Chicago Manual of Style, 15th Edition.

Parentheses

Use parentheses sparingly. They create a stronger separation than commas or dashes. You can use them to distinguish parenthetical information:

The format of the caption on the complaint (called a petition in some states) varies from state to state.

You use them to distinguish the numbers in an enumerated series. In legal documents, they designate a numerical figure when it follows an amount that has been expressed in words:

The plaintiff requests damages in the amount of One Hundred Thousand Dollars ($100,000.00).

Parentheses are also used when transcribing legal testimony to designate the actions of the speakers:

MR. STEWART: Is this the document you signed? (hands Ms. Avery the contract)

The only punctuation marks that appear within parentheses are those that are essential to the parenthetical material. The rest of the sentence should be punctuated as it would be if the parenthetical information weren’t there.

Mastering mechanics

Rules that govern the mechanics of writing include: how to form possessives, when to capitalize, when to italicize and underline, and how to quote others’ material.

Forming possessives

Even if you’re an experienced writer, you may still have difficulty with possessives. You should use the possessive form of a noun when the noun is immediately followed by another noun that it possesses. Here are the five rules for forming possessives:

• Most possessives are formed by adding ’s to the end of a singular noun. This is true even if the noun ends in s. Examples: “Mrs. Ruddy’s case”; “the jury’s decision”; “Charles’s opinion”; “Jack Johnson’s letter.”
• If the possessive noun is plural and ends in s, only an apostrophe is added. Examples: “The four boys’ bikes”; “the three clients’ wishes”; “the Joneses’ front porch.”
• If you must use an appositive with a possessive case, apply the possessive form to the noun closest to the thing possessed, usually the appositive. Example: “The patient, Mr. Jones’s, surgery lasted several hours.”
• Memorize the possessive forms of proper pronouns (my, his, her, your, its, our, and their for pronouns preceding the noun; mine, his, hers, yours, its, ours, and theirs for possessive pronouns that occur at the end of a clause or that are used as a subject). Example: “Yours is a very strong case; it is much stronger than mine.” Note that none of the possessive pronouns contains an apostrophe. It’s is a contraction of it is, and therefore rarely appears in legal writing. As opposed to proper pronouns, possessive indefinite pronouns do contain apostrophes: “Somebody’s dog has chewed my carpet.”
• The possessive form of a noun should almost always be used before a gerund, a noun formed by a verb + –ing. Example: “I am concerned about our client’s presenting himself well at trial.” The phrase our client presenting himself may sound accurate, but it is not.

Capitalizing properly

Proper capitalization is like the law; the rules are there, but the interpretation and application of those rules is the subject of debate. The best advice is to capitalize words consistently and follow the preferences of your employer.

Within a sentence, capitalization is essentially based on one guideline: If a noun is the proper name of an individual entity, it should be capitalized; if it names a generality, it should be lowercase.

PROPER NAMES

Capitalize the name of a particular person, place, event, or thing and the degrees and titles that accompany a person’s name:

• Professor Juan Ramirez
• Senator Sarah Grey
• President Hammond

But, professional titles that follow a name or stand alone should be lowercase:

• Juan Ramirez, a professor of geology, will speak tonight.
• The senator and the president will attend.

In one case, the title is designating a certain professor, Juan Ramirez. In the other case, the appositive provides information that Juan Ramirez is a professor.

LEGAL DOCUMENTS

Capitalize the official titles of specific acts, bills, codes, and laws:

• First Amendment
• Code of Civil Procedure
• Securities Exchange Act

General terms for legal documents are lowercase:

The prohibition amendment was repealed, but many codes and laws that are equally useless are still in effect.

NUMBERS

In a legal document, a dollar amount should be written out and each word capitalized:

The accidents resulted in damages totaling Eight Thousand Nine Hundred Forty-Two Dollars ($8,942).

In all other cases, the second number in a compound numeral should be lowercase:

He moved to 432 East Fifty-second Street.

COURTS AND JUDGES

Probably the most confusing capitalization rule for legal writers involves references to courts and judges. Generally, you should capitalize the name of a court or judge if it’s included in the full title of a specific entity; if it’s a general term or stands alone, it’s lowercase. Here are some examples:

• The most commonly recognized court of appeals is the U.S. Supreme Court.
• The case was heard by Judge Fairway’s court.
• The judge will make her decision by the end of the week.

An exception to this rule occurs when the word court, standing alone, refers specifically to the presiding judge or officer:

The Court’s decision was to sentence the defendant to three (3) years probation.

The word Court in this sentence refers specifically to the judge.

TERMS OF GOVERNMENT

The words government, administration, federal, and national are capitalized only when they are included in titles:

• the National Socialist party
• The Federalist Papers
• the Veterans Administration
• the federal government
• a national pastime

City, state, county, and district are capitalized when they are part of proper names:

• Oregon State
• Jersey City
• Denver District Court
• Bowie County

They are lowercase when they stand alone

• the state of Georgia
• the city of Detroit
• the entire district
• the largest county

Full titles of boards, committees, departments, bureaus, and legislative bodies are capitalized, but general or incomplete designations are not:

The U.S. Senate approved a bill to provide more power to state senates.

ENUMERATIONS

Capitalize the first word of enumerations that are introduced by a colon and include full sentences:

There are three reasons for the decision: (1) The new proposal is more cost-efficient. (2) It provides for an increase in production. (3) It allows us to use existing facilities.

DIRECTIONS

Capitalize east, west, north, and south only when they name a section of the United States:

People who live in the Midwest tend to travel west for their vacations; people who live in the West tend to travel east.

Underlining and italicizing

As a paralegal, you’ll need to know the rules regarding underlining and italicizing. Underline or italicize case names, book titles, and Latin terms, such as quid pro quo, respondeat superior, and so on. Here’s an example:

A case that involved the concept of respondeat superior, Dach v. General Casualty Co., is located on page 170 of the North Western Reporter.

Underlining and italicizing are interchangeable; however, italicizing is the preferred method.

Quoting

You can find the rules regarding the mechanics of quoted material in legal writing in A Uniform System of Citation. When quoting information from case precedents, paraphrase lengthy statutes and points of law and never quote case headnotes, prefatory statements, or an entire presentation of facts. (Of course, you must cite paraphrased material correctly, as you would direct quotes.)

Quoted material should be limited to especially important comments made by a key witness to an incident or a legal authority. However, any copied material that is set forth exactly as it’s presented in the original must be designated by quotation marks or indentation.

SHORT QUOTATIONS

Generally, exact quotations that are shorter than 50 words are designated by quotation marks and included within the same paragraph as the introductory comments. Separate a full-sentence quotation from its introduction by a comma unless the introduction is an independent clause; in that case, you could use a colon. Look at these examples:

• The Court sentenced the defendant to life imprisonment stating, “All evidence reveals that the defendant is a habitual criminal incapable of being reformed.”
• The following testimony of the defendant’s sister best supports the judge’s statement: “Lynn actually seemed proud of committing each crime.”

LONG QUOTATIONS

Quotations over 50 words are usually separated from the introductory comments, indented on both sides, and single-spaced. Quotation marks are eliminated as shown in the following example.

• In reaching its decision, the Court stated the following:
• The defendant did not permit the taxes to become delinquent. He was under no duty or obligation to pay the taxes. The default in payment of taxes was with the mortgagor, the predecessor in title of the plaintiff… .

ALTERED QUOTATIONS

Designate anything added to or deleted from an exact quotation. Words or letters added to a quotation for clarification are enclosed in brackets:

• We feel that it [the trial court’s decision] should be upheld.
• The jury said, “[T]he defendant is guilty.”

In the second example the T is added in brackets to show that is was actually lowercase in the original.

Indicate eliminated words with ellipses. For example, four dots end each quotation that eliminates the end of the quoted material but ends the sentence. (The first dot is the ending period of the sentence, following by the three dots of the ellipses.) Words eliminated from the middle of a quotation are designated by three dots.

Here’s an example showing both an ellipses in the middle of a sentence and one at the end of a sentence:

In reaching a decision, the jury considered “the defendant’s clear assumption of risk … and his obvious negligence… .”

Always include a space between each dot and between the ellipses and the words after them. Note: When you’re ending a sentence with an ellipses, you put the period up against the last word, and then you add the three dots of the ellipses.

If you add emphasis to any portion of a quotation, the words emphasis added, contained in parentheses, must follow the quoted material. The designation is placed after the ending quotation marks in a short quotation or after the period in a long one:

• The witness claimed in his letter, “There is no way in hell the defendant was innocent” (emphasis added).
• As stated in Drake v. Lerner Shops of Colorado, Inc., 145 Colo. 1, 4, 357 P.2d 624, 626 (1960), to establish a prime facie case of negligence, the plaintiff must show that the defendant’s actions caused the harm:

Some degree of risk is present in our every activity and if existence of hazard alone were the standard it would mean that the happening of an incident would be sufficient to raise the presumption of negligence and the landowner would be an insurer of the safety of his patrons. Such is not the law. The condition created by the conduct or activity of the landowner must pose an appreciable risk of harm. (emphasis added).

The preceding quote is also a great example of how long-winded legal writing can get!

PUNCTUATION WITH QUOTATIONS

Place common marks of punctuation, such as periods and commas, before an ending quotation mark:

When she described the accused as a “lazy bum,” she was not referring to his ability to hold a job.

Semicolons and colons go outside the quotation marks:

The defendant said, “That jury had it in for me from the beginning”; he plans to appeal.

Organization: Structuring the Finished Product

Before you begin writing, you need to organize your thoughts. Longer documents require more planning, but even letters, emails, and short memos should begin with a plan.

The outline

Organization begins with brainstorming. Jot down ideas that seem to be important, compile them into major categories, and then provide more specific information about each category. You don’t have to follow perfect outline form, especially if you’re working under a tight deadline, but you must identify the major categories of information, the logical order of those categories, and the specific information that supports each category.

Different documents require different types of organization. Depending on the document, the information may be ordered chronologically, from general topics to specific, or from least important to most important. All documents must have an underlying purpose, a main point, substantiating information, and a conclusion. Each bit of information must be essential to the purpose of the written work. Writing is an ongoing process, so as you write you may reorder existing topics, add new ones, or delete unimportant ones as needed to advance your position. The outline is a tool, not a restriction.

As you being your paralegal career, you should make a point of showing your outline to your supervisor before you begin the actual writing. Your supervisor may not always have the time to review your outline, but a quick review can reveal any weaknesses and keep you from wasting your great writing skills on unnecessary points. As you become more experienced, you can probably do your own review of your outline.

The paragraph

When your outline is complete, you’ll use it to construct paragraphs. Some elements of your outline may be discussed in a single paragraph, while others may require several paragraphs. Include an introduction, a body, and a conclusion in each paragraph you write. As with sentences, only include essential information.

Pay careful attention to sentence structure. Readers are more willing to read paragraphs containing clear, well constructed sentences, and they’re more likely to continue reading paragraphs that contain a variety of sentence structures. Readers are also more willing to read paragraphs that flow easily from one to another. Lead the reader from one idea to the next by implementing careful transitions.

You can use any of a variety of transition techniques:

• Words like furthermore, also, for example, first, next, finally, however, and therefore show the relationship that paragraphs have to one another.
• Referring to previous paragraphs by repeating key words and ideas or using words like this, these, those, and that ties together the thoughts of several paragraphs. Don’t use this, these, those, and that alone, however. “This has been very confusing for all of us” is ambiguous. The following is better: “This breakdown in communication has been very confusing for all of us.”
• You can also provide transition by foretelling future topics by ending paragraphs with sentences that foreshadow what’s coming next. For example, you might end a paragraph by saying, “Another feature of our office management system is automated billing.” The next paragraphs would then discuss automated billing.

Specific documents

Every written work has a purpose and every work has a reader. Focusing on who will read a document — and why — will make writing that document much easier. Letters should contain introductions, bodies, and conclusions. Begin each letter or memo by stating its purpose and noting any enclosures. Provide specific information, and close with a short summary and a recap of any action that is required by the receiver of the communication.

Briefs and legal memos are much easier to write if you organize the information into three parts: (1) The introduction includes the purpose of the document, a statement of the case, and a list of the relevant issues. (2) The discussion of each of the issues by careful application of law to fact makes up the body of the argument. (3) The conclusion summarizes the answer to each issue. All three elements are essential for a complete organization and a persuasive presentation of the argument.

We include examples of legal memos in the online content at www.dummies.com/go/paralegalcareer2e.

The structure of court documents, like pleadings and motions, follows specific rules. Their introduction consists of the caption and the statement of purpose. The purpose is then more specifically outlined in the document’s text, which explains the elements of the case or the kind of information requested, depending on the type of document. Finally, the purpose is summarized in the ad damnum clause. The text of a court document should contain all the elements necessary to achieve the desired result and nothing more. Its information should be clear and precise. (For more about drafting legal documents, see Chapter 10.)

Proofreading: Polishing the Finished Product

Your knowledge of grammar and sentence structure paired with proper punctuation and careful planning will result in powerful writing! Great writers utilize one other important tool: proofreading. Don’t neglect proofreading because of time constraints or laziness. The process of proofreading can make a fair document good and a good document great. With a little practice and the use of available technology, proofreading can become a nearly painless procedure.

When proofreading, focus first on the sentences, and read the three main elements of each sentence: the subject, verb, and third element. Ask the following questions:

• Is the message powerful?
• Is the message clouded by too many extraneous elements?
• Is the sentence constructed and punctuated properly?
• Do the adjectives and adverbs describe what they’re intended to describe?

If the answer to any of these questions is no, rework the sentence.

Next, examine the paragraphs by asking the following questions:

• Does each paragraph contain one main topic?
• Is the sentence structure varied?
• Do the paragraphs flow together well?
• Is the writing interesting?
• Would a reader who is unfamiliar with the information understand what is written?

If the answer to any of these questions is no, structure the paragraphs more carefully.

Next, check the document for errors in spelling and typing. Spell-check programs are excellent tools for the busy paralegal, but don’t rely on them exclusively. Spell-check programs will miss errors in forming plurals and verb tenses. After spellchecking the document, reread it to make sure you didn’t miss anything. Then have your supervisor or a colleague reread the document. You’re less likely to spot your own errors than someone else is.

Avoiding Plagiarism

Plagiarism may not seem to be a big concern in legal writing. After all, much legal writing doesn’t seem good enough to warrant theft! Besides, spending hours and hours citing statutes and quoting judicial opinions is not called plagiarism; it’s called being a paralegal! Just make sure you properly cite those laws and opinions to help establish the legal authority of your argument.

Sometimes you’ll be called upon to cite studies, book, reports, and other copyrighted material. For example, you may cite a scientific report in a brief concerning a tort claim. If you fail to give proper credit to the authors of the report, that’s plagiarism.

To avoid plagiarism, be sure to cite the source of all unoriginal material. When using outside sources, put any portions directly quoted inside quotations marks or set off as indented quotations.

You don’t always have to quote material word-for-word. Often, you’ll want the authority of the source and the conclusion reached, but not the exact wording. In those cases, paraphrase the ideas in your own words. Don’t change the conclusions of the court decision, scientific study, investigative report, or book you’re citing, and be careful not to credit the judge, scientist, or author with ideas he didn’t express. Even when you paraphrase, cite the authority it came from.

The key to avoiding plagiarism is simple: Give credit to the sources you use. Besides, citing sources has the added bonus of strengthening your arguments.