Quick Tips

Common Mistakes in Legal Writing for the Paralegal
guest author: Patricia Lee

Here are 5 quick tips (and for some of you reminders) on how to stay on top of your game when it comes to legal writing. 

Citing to bad law: When citing to cases either in your jurisdiction or another, make sure that the law you're citing to is still "good law" for the proposition for which you are citing it. Both Westlaw and Lexus have the "flag" system which is an easy way to tell if the case you are about to cite has been heavily criticized or outright overturned. There's nothing worse than banking an important argument on a case which you think is directly on point, only to get a scathing opposition chastising you for relying on a bad case. It's a rookie mistake that may diminish your credibility in the eyes of the Court. If you pull up a case with either a yellow (indicating that the case has been heavily criticized by a Court) or red (indicating that the case has been overturned on one or more of its key holdings), click on the flag to pull up all cases related to the negative treatment. Remember: Headnotes are your friends and can help you quickly and easily determine if the negative treatment is related to the legal proposition you want to cite. The list of cases that are automatically generated when clicking on the yellow or red flag will denote which headnotes were discussed, criticized or overturned. You can then cross reference those headnote references to your primary case, to see if there is any overlap. If they do not match, meaning, the headnotes receiving negative treatment do not have anything to do with the law you want to cite, then you're golden. Just make sure to parenthetically note that the case you are citing to has been "overturned on other grounds."  If, however, the headnote cross reference reveals that the law you want to cite is no longer good, then abandon reference to that case all together and find a different case or argument to make your point.

Failing to Organize: Someparalalegalsgetcaughtupinwhatisknownasastreamofconsciousness. If that sentence was hard to read, imagine judges who have to read, digest and make a decision based on our persuasive writings, which, if poorly organized can be maddening!  Remember that you are not composing the Magna Carta and less, is therefore more. In the spirit of Mark Twain who once wrote, "I didn't have time to write a short letter. . .", keep in mind that it is harder to write a short brief than it is to write a long one. That is because, with a short brief, you are forced to tightly organize your thoughts and present them in the most concise, cohesive and persuasive way possible. In law school, our legal writing was informed by the acronym "IRAC": Issue, Rule, Analysis, Conclusion. Tried and True!  When composing your outline of facts and arguments, each heading becomes the "Issue" in the IRAC analysis. An example might be "The contract is void ab initio because the Defendant failed to tender consideration."  This heading immediately and succinctly communicates to the reader that you are arguing lack of contract formation for want of consideration. Next, you have to give the Court a legal bases to rule in your favor. This triggers the "Rule" portion of the analysis where you would cite to the rule or case that says, for example, "Contracts unsupported by consideration are void ab initio (case cite)."  Next comes the most important part of your brief; the persuasive or the "Analysis" portion where you apply the facts to the law and let the Court know why it should rule in your favor. An example might be, "Because Defendant failed to pay for the car, i.e. he failed to ‘tender consideration,' the contract was void ab initio."  Finally, in Conclusion, remind the court of the relief you are seeking, e.g. "Because the contract is void ab initio, the Motion must be granted as a matter of law."  For each of your distinct arguments, rinse, lather, repeat!

Failing to distinguish or otherwise address counter-law:  Sometimes, when conducting legal research, you may run across a case that may appear to be adverse to your position. Or, maybe opposing counsel has cited to a case that appears to be directly on point, and strongly against your position. In those instances, read the facts of the seemingly adverse case carefully. In most instances, you will be able to distinguish the facts of your case from those of the case cited. This is the "apples to oranges" argument. By way of example, Plaintiff may have cited to a case that states that contracts for the sale of land must be in writing to be enforceable under the statute of frauds. However, you know that, despite not having a contract in writing, your client actually partially performed by partially paying for the land. In this case you would want to distinguish that fact by citing to other cases that say that the statute of frauds will not prevent contract formation for the sale of land where one party has partially performed and that performance was predicated upon reliance of the oral contract.

Failing to Update Forms: Like seasons, the law often changes. Make sure that you are periodically checking all of the Rules, statutes and case law that you routinely import into your standard forms to make sure the that they still apply. Your firm should be getting updates and alerts any time a change has been made to its local Rules. Additionally, it is helpful to review any statutory changes enacted by your local legislatures during any regular or special session. The easiest way to make sure that the Rules, statutes or case law is still valid, is to simply look it up in Westlaw or Nexus and see if the oft referred to "flag" is present. If any of the rules, statutes or case law presents with a red or yellow flag, make sure to dig deeper and see if your form needs to be adjusted accordingly. While the frequency with which you update your firm's forms will certainly vary based on your jurisdiction, it is good practice to review and update your frequently used forms at least once a year. For forms that you use less frequently, you should update them on each rare occasion you use them.

Failing to include supporting evidence for factual statements: If you are writing a motion or an opposition to a motion, make sure that each factual statement is supported by evidence. Evidence can come in the form of an affidavit and/or supporting documentation. If you fail to point the reader the validity of your factual statements, then your factual assertions just become what's known as "speaking arguments," which arguments are neither regarded nor persuasive. If you are attaching documents as evidence, make sure that there is a corresponding affidavit attesting to the fact that the document being presented is a "true and accurate duplicate of the [insert name of document]."  This will ensure that the reader is given actual evidentiary support for your factual assertions.

Happy Writing!!!


Patricia Lee is a partner in the law firm Hutchison & Steffen LLC, practicing primarily in business and commercial litigation. She is the current president of the Las Vegas Chapter of the National Bar Association Foundation and was appointed by Governor Gibbons to serve as chair of the Nevada Crime Commission. Ms. Lee is currently on the Board of Directors for the Legal Aid Center of Southern Nevada and she was named Legal Aid's Pro Bono Attorney of the Year. She became the first Nevada attorney to receive the American Bar Association's national Pro Bono Publico Award for her demonstrated outstanding commitment to volunteer legal services for the poor and disadvantaged. She earned two B.A. degrees from the University of Southern California and her J.D. degree from George Washington University Law School.

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