May 22, 2014
After a hiatus, we’re back with the latest installment in our legal writing series. This week, we’ll be discussing the appropriate level of legalese to use in your writings to the court, which are typically in the form of either memoranda or briefs.
Previously, we discussed the use of legalese in demand letters, specifically on how such legal language (see this post for a specific definition of my usage of the term, “legalese”) should be used sparingly and carefully. You may not be writing your demand letter to an attorney at all, and even when you are, it’s early enough in the dispute that comprehensive legal arguments may be unnecessary.
When writing for a judge, however, this is not the case. Your memorandum or brief represents your written legal argument to the judge, and as such should make extensive use of “legalese” (that is, technical legal terms and concepts).
The concerns normally raised by overuse of legalese – that it may obfuscate the arguments and overall message of your legal writing – are largely assuaged by having a judge as your audience. After all, this individual is responsible for deciding the outcome of your case, and should be intimately familiar with the pertinent law at issue. Legal terminology that is incomprehensible to most laypeople should be easily grasped by the judge.
Indeed, your brief or memorandum may be less effective for failing to use a sufficient amount of legalese, as the judge may assume that you have an incomplete grasp of the legal issue and consequently that your argument may be less authoritative and compelling.
Moreover, this is the time to make your full legal argument in writing, and to do this, you need to use legalese. A failure to expound on the legal technical details may create serious gaps in your argument.
Nevertheless, although legal terminology should be used gratuitously in your brief or memorandum, there are several points of which to be aware. First, you should avoid having your writing sound like a treatise or law review article; your brief or memo is first and foremost an argument, not an intellectual exercise. The legalese that you use should serve this purpose.
How does this look in practice? Keep your legal terminology largely confined to the “rule” section in your IRAC writing structure. When you discuss legal terms as part of your argument, try to keep them in shorthand as much as possible so that the reader isn’t distracted down a different course than where your argument is leading him or her. It’s quite easy for legalese to clog up your argument section, and even one instance of non-simplified legal terminology can cause a damaging break in the chain of your argument.
The second point of which to take note is that a judge may not solely be relying on the law to make his or her decision. Furthermore, as I’ve previously discussed, not all judges even rely primarily on the law in their decision-making. In other words, don’t use legalese to the exclusion of other parts to your argument that may better appeal to your particular judge.
Yes, legal terminology is necessary in nearly all such circumstances, but often times, it is not the only element that is necessary. Some judges may have certain desired results in mind for a certain case, while others may have a particular philosophy or ideology that guides his or her decisions. Still other judges may use the law as the primary guidance in a decision, but the law is often so close on an issue that he or she looks at other elements of the case to make the final call.
As such, your written legal argument should not be 100% reliant on the law, no matter how strong you believe your position to be; your argument should contain multiple approaches that thoroughly explore all aspects of the case.
And this perspective on legalese specific to briefs and memoranda is actually applicable to the use of legalese on the whole:
Legalese is not an end in itself, but rather one of many instruments in the lawyer’s toolkit.