Legal Writing and Editing
from a Multilingual Paralegal’s Perspective
Presented by Peter Kirchikov
Date: Wednesday, 10/21/2009
Location: Alabama Association of Paralegals, Inc.
Writing is a hard job and many people, including executives, do not like doing it, but with the advent of Internet and hand-held and electronic devices, things changed drastically. But is it really hard to write? Can you write a research memo, draft an annual report, legal brief, memorandum of law, opinion letters, etc. or is does it look like a rocket science and scare you ?
“Lawyers are people who write a 10,000 page document and then call it a brief…” Franz Kafka
In order to succeed in legal writing and editing, you need to have perfect command of English, be able to communicate powerfully and express yourself clearly and deliver your message accurately and keep your education updated and upgraded.
Having effective communication and legal writing skills make you competitive in the legal profession. Words are writer’s tools of the trade. Law practitioners use persuasive language, words with clarity, precision and accuracy to make their case and win the argument.
Writing is rewriting and revision. Why? A writer/attorney may have 5-7 or more drafts before the final copy.
What is plain English/plain English statute and who uses it ? Plain English alternative words are simple and easy words to use vs. pompous, long, hard, unnecessary, outdated, antiquated words, phrases, that litter professional writing. Plain English document is easy to read and uses common sense language, understandable by all readers. Using everyday words, not jargon or slang, but good, plain English words is the first step. What is persuasive writing- persuasive brief, memorandum of law, it is also the attorney’s persuasive argument before the jury and in the courtroom.
Conclusion - Legal writing and editing are great intellectual challenge and accomplishment. Mastering your legal writing and editing, proofreading skills is great asset and investment in your career and your future, it makes you competitive and successful in your profession.
- Introduction: Hammer the laws, hammer the facts, but do not forget to sharpen your mother tongue skills.
- Definition of professional legal writing. Types of professional legal writing. Paralegal’s role in drafting and filing legal documents.
- Hamlet’s question vs. Orwellian questions in legal writing and editing.
- Born to edit… Why legal writing is rewriting. Your employer/attorneys-legal writers love your job as an editor, because editors can do both write and edit, edit and write, all the time, all the way. Who are the legal writers? What are the tools of the trade for legal writers, editors and proofreaders? What are the “Bluebook” and the “Redbook”. What is the attorneys Bible? What are the legal writer and editor’s blocs? What are the tools of your trade.
- When in doubt, …subpoena, sorry, edit. What is the Word’s Court, who rules it, who are the judges there and who dominates it and what are the rules in that court ?
- Legal/business correspondence- Legal Writer and Editor’s Ten Commandments. Obey your ethics instincts, mind your business and etiquette, be polite, professional and correct at all times, be fair and civil, do not misrepresent, do not lie, do not defraud, do not confuse, do not misunderstand, do not offer miscommunication, etc. Covenant not to sue, sorry, not to fail. Hypothetical situations from our real legal community life.
Ask yourself these Orwellian questions before legal writing and editing: why are you writing this legal document? Who is your audience? What is your message, main idea- what are you trying to say? What words, image or idiom, phrases will make it clearer, better? Do you have enough knowledge, expertise, tools to do that? Am I really responsible in my writing or am I saying something, that is inappropriate? Have you considered the legal aspects- what are the jurisdiction, the authorities, law cases to cite, what are the summaries of the law, regulations, citations, etc.? Questions, questions… And this one: when is the project due? Answer: I have kind of an emergency project… It was due two weeks ago..”
- Why legal writing is rewriting? A writer may have 5-7- or more drafts before the final copy of the legal document. Hold conferences and get feedback with your attorneys.
- What is legalese and how to digest it? Oh, yes, legalese is a jargon. Dad, would you please give me an example of a legalese term, phrase? My life is legalese. Legalese is not the only professional jargon-e.g., how about journalese, medicalese, officials, business speak, corporate speak
My experience as a regular legal contributing lexicographer to Black’s Law Dictionary.
My experience as a regular legal contributing lexicographer to Black’s Law Dictionary. I was surprised when a professional asked me during the presentation what does legal contributing lexicographer to Black’s Law Dictionary do and what does lexicographer means? The term “lexicographer” is of Greek origin: “lexicon” means “word” and “graphos”, “grapher”- “writer” and means a linguist, who is an author or editor of a dictionary, works with the words, terms, phrases, idioms, sentences, abbreviations, acronyms, linguistic units, etc. and works from the master list of the words and gives definitions, meaning, senses to each entry, term, word, lexeme, etc. and arranges them in a certain order according to the publisher’s instructions and editorial protocol/style sheet/ manual of style and usage/stylebook, etc. Lexicographer is a dictionary writer/compiler/maker, dictionarian, compiler, definer, explainer, etymologist, philologist, philologer, glossarist, glossarator, lexicologist, glossographer,glossologist, etc., etc Law lexicography is one of the most popular branches of linguistics and lexicography and deals with the law terminology, lexicons, glossaries, vocabularies, industry-specific terms.
Terminology, dictionaries, glossaries, lexicons, vocabularies wordbooks, list of terms are essential part of our life, including writing and lexicographers play a vital role in that process. E.g. Sedona Conference has approved Glossary of commonly used terms for e-discovery and digital information management under E-Discovery, ESI (electronically stored information), storage & spoliation laws.
Twitter, micro-blogging and networking has its own terminology.
Only in the last 9th edition of Black’s Law Dictionary 3.000 (three thousand) new terms were included with multiple senses and meanings for each term.
Visualize your audience when you are writing- are you are writing for your counsel, attorneys, your co-counsel, national counsel, client, opponent, opposing counsel.
Visualize your writer-when editing: who is writing this legal document: your associate attorney, law partner, senior law partner, or co-counsel, national counsel, client, opposing counsel, judge, justice, or a law clerk, intern, et al?
Try to be in his/her shoes, or even better in his/her head/mind- what is the idea that she/he wants convey to the .
When editing work as team with your legal writer, attorney, et al.: 1. make suggestions to improve, change, correct, amend, rewrite the attorney’s draft. Do not make it bleed, do not chop and hop. 2. hold phone conferences and eye to eye conferences, 3 exchange emails as for the drafts and updates on the corrected, improved, edited , rewritten copy of the legal document.
Editing - in several stages: to revise, rewrite, amend, rephrase, redact, rectify, annotate, copy-edit, polish, fine-tune, select, compile, compose, alter, adapt, modify, improve, correct, to suit a particular purpose, to delete, to prepare for public presentation, hearing, trial; 1. editing for organization- your paragraphs, indentation, justification, etc.; 2.editing for accuracy, clarity, brevity, etc.3. editing for mechanics- grammar errors, spelling, punctuation, etc. 4. fact-checking, type codes, numbers and dates, key terms, glossaries/terminology/vocabularies; primary references and sources, authorities; law review manuals, footnotes, etc.
Tools of the Trade
Peter Kirchikov’s Tips on Writing Well
- Writing is all about words, terms, phrases, idioms, abbreviations, acronyms and handling them- it is about the use of words, their combinations, arrangement, harmony, contrasts, senses, definitions, meanings. Be sure you have a good dictionary, thesaurus, e.g. latest editions of Webster’s 11th New Collegiate Dictionary, Black’s Law Dictionary, “The Bluebook”, “The Redbook, manual on legal style,” synonym finders.
- Say what you mean. Yes, you can write, yes you can accomplish your writing project/assignment and organize your material and have the job done. Use common sense, sound judgment and get your facts straight and you will get it right.
- To write well, you need to read the best authors, to listen to the best speakers and practice, practice your own style, practice writing every day. Writing is a practice, writing is a practice of study of the mind, as Natalie Goldberg said
- Know your subject well, be an expert in your field, unparalleled, unsurpassed connoisseur, do a thorough research, utilize multiple sources of information and resources, do the interviews, etc.
- Be concise, clear, brief, right to the point, direct, positive, use the right, appropriate tone. Have empathy for your reader.
- Self-edit. Writing is rewriting- if you can write, you can edit; if you can edit, you can write too. You were born to edit-it is what your English language teacher told you and your mother too. Know your Grammar, mechanics, punctuation, spelling, citing, quotations, etc.
- Use “the drawer doctrine/principle”- after your wrote your draft copy, save it to your CD, USB port drive, floppy disk, leave it in your drawer/computer/on your desk/folder, take a brisk walk, go to the gym, take Jacuzzi, clear your mind, etc. You can do many things. Forget about your copy for a while, but do remember to meet your deadline.
- Always keep a notepad within your reach- on your desk, next to the table, near your nightstand, chest drawer, in your pocket/pocketbook, bag-you never know, when the next greatest thought attends you.
- Chop it, crop it, shorten it, trim it, if you can- avoid all those long-long, archaic, needless, meaningless words. Let us consider saving the environment, let us go green.
- Relax: “Writing is just work”, as Sinclair Lewis once said. Writing is just a hard work. Get used to it. It is your job. You are doing it every day. Yes, you can write, yes you can accomplish it. Writing and editing are about attention to details, rewriting and revision , looking again at your copy.
Legal writing and editing are great intellectual challenge and accomplishment. Mastering and polishing your legal writing and editing, proofreading skills are great asset, great investment in your career and your future, it makes you competitive in your profession.
-- Peter Kirchikov
LAW LEXICON WITH PETER KIRCHIKOV
Excerpts from the Law Dictionary of Modern Legal Terms, Expressions, Phrases, Abbreviations, Acronyms, compiled and arranged by PETER KIRCHIKOV
It is imperative for legal professionals to have impeccable legal writing skills. To achieve the goal of absolute understanding a legal writer must be proficient in law terminology. Use of precise legal meanings to suit nuances of particular legal situations is a must. What matters in legal writing? Accuracy, clarity, precision, definiteness, clear-cutness, comprehensibility, intelligibility, legibility, distinctness, plain language, (not “legalese”), perfection, correctness, unambiguous communication, right to the point interpretation, attentiveness to details, specificity, scrutiny, factualness, truth, integrity, veracity, being strictly adherent to the rules - these qualities are crucial and do count in legal writing.
There were cases, when law practitioners were sanctioned by the court because of their poor legal writing skills and improper use of law terminology. If the law is one of the principal literary professions, as stated by William Prosser, then currently we are having a problem with the definition of the literary profession and legal writing.
“Legalese” is a foreign language, a professional jargon, a rocket science to non-lawyers and laymen, combined with its numerous witty, nitty-gritty Latin phrases with challenging spelling and pronunciation, too many-worded complicated definitions, specialized meanings of common, usual words in an unfamiliar context, legal situations, nuances. There are law dictionaries out there to help legal professionals, but we have a serious problem here: most of the modern law dictionaries cannot keep up with our dynamic life and ever-changing terminology and do not list many vitally important legal terms and senses and meanings. I am here to help you. I have been working on my Law Dictionary of Modern Legal Terms, Expressions, Phrases, Abbreviations, Acronyms, etc. and plan to compile approximately 25.000 + up-to date entries in different areas of law, dealing with judicial, legislative, immigration, political, military, law enforcement, international law issues, industries, economy, finances and allied areas. I provide clear, concise and complete definitions of the “legalese” terms, the law language. I did my best to make these legal terms user- friendly to different walks of life with some examples from the modern history, case briefs, pleadings, court decisions, judicial opinions, etc. I am very excited about this project. Let me ask you: have you seen lately the following legal terms in the latest editions of major law dictionaries: “Linguistic profiling”, “Special process server” , “Bid position”, “Drug formulary”, “ D.P. camp/Displaced persons camp”, Apostile Services,” etc.? My editors have not.
Below please see a few samples of modern legal terms, some of which were requested by the editorial office of the law dictionary and will be included in the newest editions.
I would welcome and appreciate your feedback and any suggestions you may have for new legal terms and lexicographic ideas to improve this law dictionary. Thank you. Peter Kirchikov.
LAW LEXICON WITH PETER KIRCHIKOV
Excerpts from the Law Dictionary of Modern Legal Terms, Expressions, Phrases, Abbreviations, Acronyms, authored, compiled and arranged by PETER KIRCHIKOV
Special Process Server and International Process of Service
Special Process Server and International Process of Service is a legal process of serving summons and pleadings in a foreign country in accordance with the Hague Convention of November 15, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, TIAS # 10072 (U.S. Treaties and other International Acts) and 20 UST 361 (U.S. Treaties and other International Agreements). The state or federal court should enter an order regarding Special Process Server and International Process of Service to serve summons and pleadings in a foreign country, specifying the name of the legal entity of the special process server, its designated agents appointed and authorized to effect the service of process on defendants in a specific foreign country. The service shall be affected according to the internationally agreed means, laws of a foreign country, or as directed by the foreign authority or originating court, if not prohibited by the international agreement or the laws of a foreign country and in a manner reasonably calculated to give notice. All parties to the litigation should consent to the entrance of the order to affect the service of process.
Formulary, also called drug formulary, is a list of prescription medications that a drug plan will pay for. This term is widely used by Medicare, Medicaid, SSA, etc. ( http://www.thedesk.info/partd/drugFormularies.htm and http://www.medicare.gov )
Formulary, a semiofficial directory of drugs, drug standards and specifications, issued every five years by the American Pharmaceutical Association.
Apostile Services - document legalization for international use
In 1961 many nations held a convention to elaborate on "legalizing" documents for international recognition. Member nations at the conference, the Hague Convention, adopted a document referred to as an Apostille.
Apostile Service provides full types of Apostille Services for all the 50 states in the United States of America.
Apostille Services for the most common types of documents include the following:
Marriage Certificates / Licenses, Divorce Decreedocuments,
Birth and Death Certificates, Power of Attorney for Finance, Real Estate, Notarized passport, Affidavits, Education Documents, Transcripts, Diplomas, Degree Certificates, Qualification Letters, adoption documents, international adoptions, Corporate documents, Articles of Incorporation, Merger/Acquisition Agreements, Certificates of Amendment, Bank letters, Authorization to Conduct Business in Foreign Countries, Patent Applications, Trademarks, Deeds of Assignment, Distributorship Agreements, etc.
Prize law, rules of international law regulating procedure and grounds for the seizure of the merchant ships of the enemy and neutral states by a belligerent state on the high states. The enemy’s merchant ships and the property aboard are called a prize.
International gurantees, International legal acts to protect the rights of a state or a group of states and secure a particular international relations or contractual oblligations.
Bid position term is widely used by the lawyers, attorneys, corporate executives, HR (Human Resources) personnel, in the legal community (in depositions, court proceedings, court trials) and in a specific industry, eg., coal mining industry, etc.
It is incorrectly used in the legal community and specific industry as Bidded position. The correct term is : “Bid position”.
Bid position is used in a situation when there is a pool of candidates ( in this case of specific coal mining industry-coal miners) and they bid/ submit their bid or apply for a position with their employer, coal mine operator, who has several coal mines in operation in the same state or across the U.S.A. When awarded a “Bid position”, a contract is signed between the employer, mine operator and the bidder, miner, et al. Provisions of a contract are typically controlled by the trade union. The bid positions may include such job titles (positions) as, but not limited to: scoop operator, general IS labor, driller, Unitrac operator, roofer, driller, roof bolter, miner, miner helper, shuttle car operator, belt installer, etc.
RE: Linguistic profiling, Racial profiling, Ethnic profiling, psychological profiling, etc.
The term linguistic profiling is used by several entities, one of them being law enforcement, to identify, scrutinize, analyze, locate the subject/ person of interest who may be a suspect in the case/investigation, accomplice of crime or as part of an operation. The following criteria and categories are taken into consideration: the native language, the country/geographic region, area/ of the origin; ethnic, social, parental background; mother tongue, second and third native language, dialects spoken/local, regional,/; professional/group jargons; specifics of articulation, pronunciation patterns/habits; voice pitch; belonging to or involvement in a certain ethnic or professional, social group; writing style; techniques and manners of sentence and phrase, vocabulary building and usage, wordstock, terms, expressions, acronyms, abbreviations; subject/ suspect’s choice/use of certain vocabulary, terminology during interview, questioning, briefing, debriefing, interrogation sessions; the style of composing sentences when using email communications and text-messaging; the manner of using sources and authorities- dictionaries, reference books, glossaries; phone etiquette; biographical data; etc. The above scrutiny helps single out, eliminate, exclude and distinguish the subject from the rest of the crowd.
Linguistic profiling may be related to racial profiling, as are other phrases like ethnic profiling and facial profiling.
Linguistic profiling has older senses used by speech pathologists/therapists for children with language problems e.g., dyslexia, learning disorder of inability to recognize and comprehend written words and spell them. Dyslalia is an articulation disorder resulting from impaired hearing and abnormalities of the articulatory organs.
Associated legal concepts and theories: discrimination, infringement, restriction in human rights, employment, linguistic profiling, racial profiling, ethnic profiling, facial profiling, etc.
Retention bonus/retention pay - bonuses paid to the current employees to keep them on the job due to the adverse economic situation. Longevity and loyalty are considered when paying retention bonus/ retention pay. E.g.- case with AIG currently.
Potemkin village is scam, deceit, barratry and means something that appears elaborate and impressive on the outside, but in reality lacks substance. "Potemkin village” is associated with the name of Prince Grigory Potemkin, one of Russian Empress Catherine the Great's ministers and lover. In an attempt to improve the downturn economy, he tried to implement reforms in the Ukraine, but his corrupt administrators ruined his good intentions. He ordered phony, false-front villages to be manufactured for Catherine's inspection tours of the Ukraine and the Crimea, bringing contented peasants ahead of the Empress’s arrival. He allegedly had done that to give Catherine a false impression of peace and prosperity in the poverty-striken regions, where economy was in huge trouble. Potemkin village is the synonym of the scam of the Russian Imperial Government to fool the Russians. The Russian nomenklatura, the top Communist Party hierarchy, skillfully used the Potemkin village phenomenon during the Communist era to deceive its population and the world. Communists turned the whole country, the USSR, into a big Potemkin village and actually into a big house. Communists had their own Potemkin villas and did not care much about the Potemkin villages. The battleship Potyomkin was named after Prince Grigoriy Aleksandrovich Potyomkin-Tavrichesky and the movie The Battleship Potyomkin was directed by Sergei Eisenstein.
"The Potemkin village of this country's borrowed prosperity.” (Lewis H. Lapham).
Droit-Droit (French)- Double right: title and possession.
Droit Ecrit (French)- Written law.
Nomen Juris (Latin) – Legal term.
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