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Term of Art Legal Writing

Part of the answer comes from the history of England`s legal system, which greatly influenced that of its various colonies and territories. When the Romans invaded the British Isles, they brought with them the Roman legal system – and, of course, their language. As Old French became the commercial language of Western Europe, or lingua franca, it retained various Latin words and phrases. After the Middle Ages, when English began to replace French as the legal language, legal drafters had to choose between the corresponding English term or its counterpart French. To reduce confusion for readers who spoke only one language or the other, many legal writers in the 1400s and beyond simply chose both – a novel word and an Anglo-Saxon word. [ii] The U.S. Court of Appeals for the Seventh Circuit sided with the trial court, but the U.S. Court of Appeals for the Seventh Circuit sided with the trial court. The Supreme Court disagreed. According to the court, punitive damages are a legal concept of art that has a broadly accepted meaning at common law under state law. Congress was aware of this importance when it passed the FTCA. According to traditional common law principles, punitive damages are intended to punish a party.

Since the damages for future medical expenses and loss of enjoyment of life were intended to compensate Molzof rather than punish the government, the court overturned the decision and sent the case back to the Seventh Circuit. A lot of this advice comes down to increased readability, which can make writing more compelling. However, you don`t want the pendulum to swing too far in the other direction, writing as if you`re sending an email to a correspondent. Many law professors have taken Stephen King`s view that « the adverb is not your friend » to heart. [iii] But perhaps adverbs are not the real enemy in legal drafting. Court documents often use adverbs in legally recognized standards, such as « clearly flawed » or « reasonably reliable. » The real problem can arise when adverbs, especially those ending in -ly, are used as amplifiers to spice up a sentence. Used wisely, a well-placed amplifier can reinforce an assembly. But excessive use of amplifiers such as clear and very bad can turn out to be clearly very bad for writers – especially for persuasive authors. In fact, many legal writers agree that amplifiers tend to make an argument less convincing.

[iv] A great way to make your document more persuasive is to remove the amplifiers and see how the sentence stands on its own two feet. If the sentence isn`t convincing without the extra amplifiers, chances are the argument just isn`t convincing. Latin words such as sua sponte, vel non or sub judice, among others, can make a legal writer feel more « legal » at the expense of the reader`s understanding of the topic. To improve readability, use simple English: on your own initiative or not, among others, and under legal consideration, all are perfectly acceptable sentences that can be used in a legal brief. There is a time and a place to practice your Latin vocabulary. Explaining a complicated legal concept to a client is not one of them. 4. Don`t use quotation marks around artistic terms. An art term is an expression that has become so well accepted and ubiquitous in a particular field that it is no longer considered the property of its original author. These terms also have a meaning familiar to anyone practicing in the fields where they are used.

You don`t need to put quotation marks around an artistic term, nor do you need to cite a source, although you may want to include a quote to support the point you`re making. Here are a few examples. Classifying a word or phrase as an art concept can have legal consequences. In Molzof v. United States, 502 U.S. 301, 112 pp. Ct. 711, 116 L. Ed. 2d 731 (1992), Shirley M. Molzof sued the federal government after her husband, Robert E. Molzof, suffered irreversible brain damage while being treated by employees of a state hospital.

The federal government admitted its liability and the parties argued the issue of damages in the United States District Court for the Western District of Wisconsin. Molzof had brought the action as executor of her husband`s estate under the Federal Tort Claims Act (FTCA) (28 U.S.C.A. §§ 1346(b), 2671-2680 [1988]), which prohibits the imposition of punitive damages against the federal government. The court awarded Molzof compensation for injuries sustained by her husband as a result of the negligence of federal employees, but refused to compensate for future medical expenses and loss of enjoyment of life. In the Court`s view, these damages constituted punitive damages which could not be claimed from the Federal Government. It is not surprising that the authors of these famous words are Justices Harlan, Holmes and Brandeis. Along with Justice Cardozo, Chief Justice Marshall and perhaps a few others, they are considered the legends of American legal history. In persuasive writing, it never hurts to quote a legend. This is not an absolute rule.

Sometimes a Latin phrase is so ubiquitous or naturally concise that it becomes an « art term. » An art term is a word or phrase that has a special meaning in a particular field or profession – here in the field of law. The use of a short Latin term with a fixed definition is sometimes preferable to explaining the same legal concept in one paragraph. An example is the term per stirpes, a Latin phrase that translates directly to « through the branch. » A lawyer writing a will for a client may write, « Everything for my children, but if one of them dies, then their share they would have inherited from me goes to their children. » The same lawyer can convey the same message by writing: « Everything for my children perstirpes. » When advising your client, this lawyer will of course want to explain exactly what the term means. But when that client`s will is reviewed, the court will have little confusion in deciphering the client`s intention that his children also inherit « by the branch. » 7. Use a comma after « said », « declared », « exclaimed » and similar terms when entering a quotation. In other cases, add the word « it » and don`t use a comma. It is sometimes difficult, as with the word « inmate » in the second example below, to determine whether it is acceptable to use an introductory term with a comma (such as « said ») instead of an introductory term with the word « that » (such as « wrote that »). When in doubt, use the latter option (judged that, wrote that, found that, came to the conclusion that). This is the generally accepted option. 1. Be careful not to quote excessively; Paraphrase whenever possible. New law students sometimes mistakenly believe that they should always quote the words of a judge.

After all, according to the reasoning, the judge must know how best to express the law. However, excessive citation is a poor substitute for analysis. Your job as a lawyer is to analyze precedents, not just repeat them. Therefore, your letter should explain to your reader why and how a precedent is important to your client.