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Writing Guide for Legal Writing and Research |
Contents
Citations
Style
I. Short
Citations
General rule: Once you have cited an
authority in full, you should use a short form citation to it the next time
that authority is used in the same general discussion.
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Using id. (and deciding when not to use id.)
First, a quick review
of the short form id. The short form id. (you can either
underline it or use italics) is an abbreviation for the Latin word
"idem," meaning "the same." Since it's an abbreviation, it
must always have a period. (Note: if you're underlining, underline the period,
too!)
Id. is the short form to use
when the citation refers to the same thing you cited in the very last
citation--as long as that citation referred to only one source. You're
telling the reader to look at that source again, whether it's a case, a
statute, a book, or an article; the kind of authority doesn't matter. You can
use id. to refer to any of them.
You cannot use id.
if the citation refers to more than one source. Multi-source citations
might be, for example, parallel citations (citing two or more sources for the
same authority) or string citations (citing two or more different sources,
separated from one another by a semi-colon). In these situations, follow the
short form rules for non-consecutive authorities, set out
below.
When the citation
to your source hasn't changed in any way, you need not say anything more than Id.
When the source is one that uses page numbers, and the page number is different
from the page you just cited, no problem! You can still use id., but you
will need to add the preposition at(not underlined or italicized) and
the new page number (also neither underlined nor italicized; remember, id.
is the only foreign word here). When the source uses a different sort of
sub-unit, like a section or paragraph, indicate a different section or
paragraph by citing the new sub-unit after id.
Here are some
examples:
Full
citation: McDonald v. Eubanks, 731 S.W.2d 769,
770 (Ark. 1987).
Short form still citing page 770:
Id.
Short form now citing page 771:
Id. at 771.
Remember, you can
use id. for any kind of authority. Here's an example of id. with
a statute:
Full
citation: Ark. Code Ann. § 9-12-312 (LEXIS L.
Publg. 1991).
Short form for same section:
Id.
Short form for different section:
Id. § 9-12-314.
If you need more
specific help with id. (for example, when you're working with an
authority other than cases or statutes), check the ALWD Citation Manual or
the Bluebook. At the end of the manual's section describing citation
rules for each type of authority, you'll find reference to creating short forms
for that kind of authority. Warning for Bluebook users: Don't forget to
look at Practitioner's Note 4; it shows you how to adapt the law review
footnote typefaces for your briefs and memos.
Non-consecutive authorities:
What do you do
when you can't use id.?
You'll have to
provide the reader with a bit more information, but still not nearly as much as
the full citation provided. The idea is to give the reader enough information
to easily retrieve the cited source from the stack of books on the desk or from
the electronic database. That generally means, therefore, that you've got to
provide information concerning the type of source and specific volume, in addition
to the page number.
For cases, here are
the basics:
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a party name (usually the first given, but it's
your choice; many writers use the appellee if the name is more distinctive); |
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the volume number and reporter abbreviation;
and |
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the specific page number(s). |
That's all. But
that's enough. Ready for some examples?
Full citation: Lewallen
v. Bethune, 593 S.W.2d 64, 66 (Ark. 1980).
Short form:
Lewallen, 593 S.W.2d at 66.
Full citation: Boykin
v. Alabama, 395 U.S. 238, 244 (1969).
Short form:
Boykin, 395 U.S. at 242.
BUT NEVER
EVER CITE THIS WAY!!
Lewallen
at 67.
Boykin at 241.
What's the problem
with these citations? They give the reader no indication which reporter, or
which volume the case appears in.
Parallel citations:
Legal writers
generally use a parallel citation only where a local court rule or local custom
demands that they do so. Because parallel citations are so long, short forms
are particularly useful for authorities that you cite often. Since a parallel
citation refers to more than one source, however, you should not use id.
Instead, follow the rules for non-consecutive
citations, as set out above.
Here are some
examples of short forms to Arkansas cases; imagine you're writing a brief to an
Arkansas court:
Full
citation: Capitol City Manor, Inc. v. Culberson,
1 Ark. App. 137, 139, 613 S.W.2d 835, 836 (1981).
Short form: Capital City
Manor, 1 Ark. App. at 140, 613 S.W.2d at 837.
Full
citation: Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 319, 820
S.W.2d 444, 446 (1991).
Short
form: Schmidt, 307 Ark. at 319, 820 S.W.2d at 445.
(Note that in the
first example, both page numbers changed in the short form. In the second
example, only the regional reporter's page number changed.)
Using supra:
The short form supra
is easily and often misused, to the great frustration of the reader who
encounters it in a citation. The term supra simply means
"above"; thus the short form simply tells the reader: "The full
citation is somewhere up above, but I'm not telling you where!" The reader
is then forced to read backwards through the document, looking for the elusive
full citation to the authority. Not much fun.
According to the
leading citation manuals, supra can only be used to refer to
secondary authorities. This is a sensible rule. If you're citing a primary
authority, its "primariness" makes it important enough that you
should give the reader adequate information--on the spot--to easily locate the
source. Secondary authorities, in contrast, never have any mandatory force, and
presumably, readers can hunt for them or not, as they feel inclined.
Supra is truly only appropriately
used when the document you are writing has footnotes, and you wish to cite a
source previously cited in full. In that instance, your citation can tell the
reader exactly where, up above, to find the cited source. The reader still has
to back up, but at least knows where to look. For example:
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7Carter, supra n. 4,
at 43-44.
The best rule of thumb is to write so that you can
avoid using supra altogether. If the source is good enough for you to
cite, why not help your reader find it easily when you cite it in short form?
II. Style
Throat Clearing Phrases
New law students often find themselves writing long, introductory phrases at the beginning of a sentence, as if legal writing required wordiness or a false sense of importance. These unnecessary phrases often are called "throat-clearing phrases." Edit them out of your work. Remember that clarity and conciseness are the two most important goals of legal writing, and that throat-clearing phrases contribute to neither of these goals. Instead of getting the reader to the point, they delay the reader's arrival and hide the message.
Undesirable: It
is important to remember that in our legal system the jury must convict only
upon evidence that proves guilt beyond a reasonable doubt.
Better: The jury must convict only upon evidence that proves guilt beyond a reasonable doubt.
Undesirable:The Petitioner contends in this Court that
Respondent's actions violate the First Amendment.
Better: The Respondent's actions violate the First Amendment.
Undesirable: A key aspect of this case, which must not be overlooked, is
that the plaintiff is not a member of the class intended to be protected by
this statute.
Better:
The plaintiff is not a member of the class intended to be protected by this
statute.
Legalese
- Do not use legal
argot in an effort to "sound like a lawyer." There are many
words and phrases one might associate with legal writing but which have a
tendency to obscure the meaning of a sentence. Although you will see that
some of these words are used by judges and authors of legal texts,
particularly in older texts, you should not use them yourself. The rule of
thumb of modern legal writing is that a lawyer's language, whenever
possible, must be clear and concise enough to be understood by a lay
client. Do not use so-called legal terminology unless general terminology
would be less precise.
Undesirable:
As stated heretofore, the landlord's conduct created, caused, and resulted in serious bodily harm and massive injuries, to wit: a broken and mangled left leg, lacerations to the aforementioned leg, and several broken digits on the foot attached to said leg, in witness whereof was the spouse of the injured party.
Better: As stated, the landlord inflicted serious injuries
on the tenant, including a broken left leg, lacerations to that leg, and
several broken toes on the left foot. The altercation was witnessed by the
tenant's spouse.
2.
Do
not use long introductory (throat clearing) phrases that add no special
meaning. Use of phrases such as "the defense contends" and "it
is important to emphasize that" generally add no substantive meaning to a
sentence. Making matters worse, they prevent the reader from quickly reaching
the important part of the sentence and may result in a loss of emphasis. As a
general rule, one should get to the important point quickly.
Undesirable:
The plaintiff contends that the landlord caused her injury by leaving a large ditch in the backyard.
Better: The landlord injured the plaintiff by leaving a
large ditch in the backyard.
Of course, if you
wish to emphasize that this is only a contention, not a fact, then the first
usage is acceptable. However, if you represent the plaintiff, it does your
client a disservice to suggest this is only a contention. If it's a fact, state
it without introduction.
3.
Do
use well-understood terms of art if they are more precise than general terminology
and if you are writing to a professional audience. The beginning law student
will have difficulty knowing when a term of art is likely to be well
understood, as they all are new to the beginner. However, as time progresses,
new law students will develop an easy familiarity with terms of art and the
decision whether to use them will be less difficult.
Undesirable:
In this case, which involves a group of corporate directors who failed to properly represent the interests of the shareholders, the plaintiffs can not bring their claim in federal court because the plaintiffs and defendants were all citizens of the same state and the only issues to be tried were matters of state law.
Better: In this case, involving the breach of fiduciary
duties by corporate directors, the plaintiffs can not proceed in federal court
because there is neither diversity of citizenship nor any federal question.
In the preceding example, the terms "fiduciary
duties," "diversity of citizenship," and "federal
question" are terms of art likely to be understood by any practicing
attorney or judge. Their use would therefore be appropriate in writing a
memorandum to a supervising attorney or a brief to a judge, but might not be
appropriate in a letter to a lay client.
Colloquialisms
Legal
writing is formal writing. The primary goal is to communicate ideas clearly and
efficiently. An occasional rhetorical flourish can be useful to emphasize a
point, particularly in persuasive writing; however, one should not run the risk
of losing or confusing important legal ideas under the weight of flowery prose.
The ideas are more important than the prose. Similarly, one should not
"write like one talks." We often use colorful or colloquial phrases
in spoken English that are inappropriate in formal written English. Be sure to
edit these phrases out of your written work, replacing them with more precise
language.
Incorrect:
On arriving at the scene of the crime, the officer tore up the stairs in search
of the big enchilada.
Correct: On arriving at the scene of
the crime, the officer ran up the stairs in search of the leader of the crime
syndicate.
In the preceding example, the colloquial phrases "tore up the stairs"
and "big enchilada" have more than one meaning. As a result, more
precise language is more appropriate.
Incorrect:
On December 12, 1992, Ms. DeWitt kicked the bucket.
Also
Incorrect: On December 12, 1992, Ms. DeWitt passed on to
her heavenly reward.
Better:
Ms. DeWitt died on December 12, 1992.
In the preceding
example, the first incorrect composition contains slang, which is generally
inappropriate in legal or other formal writing. The second inappropriate
example avoids "street talk," but goes too far in the other direction
and sacrifices conciseness.
Credits
William H. Bowen School of Law, University of
Arkansas at Little Rock