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THE ART OF LEGAL WRITING


Writing is an acquired skill. Having good ideas but not being able to effectively put it across to others is a problem that many people face today. With proper training it is possible to get rid of this handicap. Like all skills, writing also requires some formal specialized training. The profession of a lawyer involves a lot of writing but a law student gets little or no formal training in writing while at law school. A student of law may refer to secondary sources like books to write an assignment. However a lawyer usually is required to refer to the primary sources of law for the purpose of his profession. Primary sources can be divided into two. They are case laws [judicial decisions] and enacted law [statutes, constitution and administrative regulations] Gathering of information therefore becomes very important and it becomes necessary that the information should be taken from the right sources.

The first information that needs to be collected is regarding the origin of the primary source of law. The rule is that enacted law prevails over case law and therefore, the search should always begin with the applicable statutes or the constitutional provision. In the absence of any statutory or constitutional provision, case laws take predominance.

The United States is a common law country and in common law countries, the judge made laws form an important part of the legal system. Decisions rendered by the judges, attain the status of law and are binding precedents. Some precedents have greater authoritative value than others. The courts are required to follow only binding precedents. Precedents become binding on a court only when the decision is by that court or a higher court.

The doctrine of Stare decisis constrain a judge to decide a case in accordance with the rules laid down in the previous decision. However in case the judge does not want to follow the same decision, he can repudiate the earlier decision and lay down a new rule different from the one previously adopted. This is usually done when the earlier decision has become outdated, due to changed conditions, when the earlier decision produced undesirable results or was guided by poor reasoning.

Therefore when writing an analysis on a problem, the search should always begin with the relevant statutes and then the relevant case laws interpreting the statutes. The author should always start with the relevant case laws from the highest court and then move on to other relevant decisions from that jurisdiction’s lower courts.

In case the citing of case law appears to be complicated, the citing of statutes is not too simple either. In the first instance, the enacted law has a hierarchy. Under the enacted law, the Constitution comes first, followed by the Federal statutes and treaties and then the State laws. Problems crop up in the matter of interpretation of statutes by courts since there may be ambiguity with regard to the language of the statute, the construction of the sentence etc.


With respect to the case laws also, some decided cases may have more weight age than others depending on the court which decided the matter, the reputation of the judge who decided the issue, the year of the decision etc.

Another important aspect that needs to be mentioned here is the topic of citation to the source. Citation to the source shows the authority from whom that particular sentence was taken. It also helps to avoid plagiarism. In case a sentence or paragraph comes very close to the original, it is better to quote it rather than to cite it.

Therefore in conclusion it can be said that to be a good legal writer, a person is required to have reasonable writing skills and an understanding of the relevant statutes and case laws on the subject. Last but not the least, when writing a topic, care should be taken to make sure that the citations is properly made. With a little guidance and some formal training everybody can master the art of legal writing.

Author:SanjanaNair
JuniorAssociate
LegalEase Solutions Pvt Ltd
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