Legal Writing Guide - The University of Auckland Library

UNIVERSITY OF AUCKLANDFaculty of LawLegal Writing GuideILEGAL METHOD AND STYLEThe following is an introduction to legal method and style, using a specific worked example of a tutorialessay question.ATutorial Essay QuestionAssume that you are given the following tutorial essay question in Torts:Pete’s Pub is the local tavern of Eketahuna. The owners of the tavern maintain toilets for theconvenience of their patrons. In July 2011, an unidentified patron entered the men’s toilet and scrawledon the toilet wall, amongst all the other graffiti, this message: “For a good time, call Elaine 765–4321. Ithought she was great and am sure she could satisfy many others.” In September, Ken, a regular patronof the tavern, went to utilise the toilet facilities. Ken was extremely intoxicated after consuming over adozen pints of beer. Although he had seen the message before, on this occasion he read it quitecarefully. Ken then phoned the number and Elaine, a local school teacher, answered. Ken explainedwhere he has obtained her number and asked Elaine if he could engage the services which the graffitisuggested she was offering. Shocked, Elaine refused and then hung up the phone.The next day, Elaine phoned Pete’s Pub, advised them of the situation and requested them to removethe graffiti from the wall immediately. The manager responded by laughing and said “Don’t be silly. It’sjust a joke.” Disgruntled, Elaine has now initiated proceedings against Pete’s Pub for defamation. Pete’sPub has come to you for legal advice on the possibility of Elaine succeeding in her claim and thedamages the pub might incur. Assume that “honest opinion” is not an available defence in this case.1

BThe Research Process1 Know thy library!It is simply not possible to conduct legal research efficiently and effectively unless you know how toaccess legal information.The home page of the Davis Law Library at the University of Auckland,http://www.library.auckland.ac.nz/subject-guides/law/home.htm (at 21 April 2012), providesdetailed information on:The collection in the Davis Law Library. The collection uses the Moys classification system.Information sheets listing the classification numbers and book locations are available both at theInformation Desk in the Davis Law Library and online. There is also signage on the shelves to assistin locating reclassified sources.The legal resources, particularly online resources, which are available in the Davis Law Library.These are grouped into:‣ New Zealand legal resources (cases, legislation, commentaries and encyclopaedias, journalarticles, internet resources): (at 27April 2012)‣ Law journal articles (indexing databases, full text online journals): (at 27April 2012)‣ Other jurisdictions (Australia, Asia-Pacific, Canada, EU, UN, USA, UK): (at 27April 2012)‣ Online legal references (encyclopaedias, dictionaries, legal abbreviations, citation/styleguides):(at 27 April 2012)‣ Databases and course guides (Voyager, databases, course guides): (at 27 April2012)‣ Area of law by topic: (at 27April 2012)2 Preliminary readingRead the question through several times very carefully. Ask yourself: “what exactly am I being requiredto do?” Often this is explicitly stated at the end of the question, as is the case here. You are being askedto advise Pete’s Pub on the merits of Elaine’s defamation claim and the damages that might be awarded.You are not being asked to address other causes of action such as negligence, malicious falsehood,invasion of privacy or intentional infliction of emotional distress. Confine your research accordingly.Note also the final sentence of the problem. You are told not to consider the defence of honest opinionfor the purposes of this essay. Do not research this issue or discuss it. Too often students miss such vitalinformation in a question and waste valuable time researching and writing about something for whichthey will be given no credit.In sum, read the question very carefully, follow instructions closely, and focus only on what thequestion requires.2

3 Identify the relevant factsHighlight and separate out the material facts that you think will be relevant to the legal issues. If you donot do so, you may overlook an important fact, or focus your research on a less relevant set of facts.Separating out the relevant facts helps to ensure that your research and analysis is more structured,streamlined and efficient.Analyze the facts meticulously and objectively. Do not generate any extra facts, or re-interpret or “shoehorn”the facts into your particular view of the case.If there are facts that might have been relevant or useful but are not mentioned in the question, youshould assume that you are not expected to address that particular issue at length (or at all).However, if you believe that you have not been given facts in the question that are crucial to a centrallegal issue which must be resolved, identify the additional information you require and how it wouldaffect your legal opinion.Here, the material facts might be:Message: “For a good time, call Elaine 765–4321. I thought she was great and am sure she couldsatisfy many others.”Written on toilet wall by unknown patron (not by Pete’s Pub employees).Message acted on by extremely drunk patron of Pete’s Pub.Pete’s Pub treats it as a joke and refuses to remove the message.4 Identify the legal issuesDepending on the level of your existing knowledge and the question, you may already be able toidentify the main issues and prioritize them on a preliminary basis, based on how significantly theyaffect the answer to the question. Be careful, however, not to treat this preliminary analysis as set instone — you should always reassess your preliminary view of the issues once you have completed moreresearch.If you are not at all sure what the legal issue is and the question does not provide any clues, try toextract relevant legal concepts or keywords from the material facts — tort, false statement, reputation,innuendo, privacy, hurt feelings etc. Then check the index and table of contents of the leading textbooksin the area to see if you can identify the relevant legal issues and narrow down your field of enquiry.Alternatively, using your keywords, run a subject or full text search in the relevant text/commentaries,legal periodicals and case databases, to see if you can identify relevant texts, commentaries, journalarticles or cases that are relevant to the question.5 Research!Once you have identified the relevant facts and legal issues, you can start on the research process itself:finding, collecting and analyzing legal information.Be methodical — plan your research before you start. A “hit and miss”, random approach to legalresearch wastes time and is unlikely to produce impressive results.Keep meticulous, accurate and full notes as you go. Make sure that you note down all the relevantcitation details — you do not want to have to come back and find everything again just to completeyour footnotes!Collecting photocopies or passively reading large amounts of text does not amount to research. Youneed actively to analyze and record your views on the materials as you go. Think critically about whatyou are reading. Be alert for inconsistencies and ambiguities. As you read and analyze each new pieceof information, ask yourself: How does this fit into what I have already found? What does it add to my3

existing knowledge? Does it reveal new issues to be examined? How does it help me answer thequestion I have been set? Where is it likely to fit into my answer?Unless you know a lot about the subject already, it makes sense to start with the relevant secondarysources (texts and journal articles), and then move on to primary sources (cases and statutes) once youhave narrowed down the field of enquiry.(a) Consult the leading textbooks, commentaries or reports in the area. A good textbook or commentaryshould provide you with a lucid summary of the relevant legal principles, identify issues that areuncertain or controversial (which will often be precisely the issues you are being asked to consider!) andprovide you with references to other primary or secondary sources through the footnotes. Your lecturermay have provided you with a list of the leading textbooks in the area. If not, do a subject or keywordsearch on Voyager.Unless you are conducting historical research or there are special reasons for doing so, do not consultold editions of textbooks – always use the most up-to-date material available.You may wish to begin with a general introductory text or commentary. Once you are more familiarwith the issues, however, you should consult more specialized and theoretical texts (if available) to gaina deeper, more critical understanding. In our example, an obvious place to start would be the latestedition of Todd’s The Law of Torts in New Zealand and Burrows and Burrows & Cheer Media Law in NewZealand. The next step might be to refer to, for example, Gillooly’s The Law of Defamation in Australia andNew Zealand for a more detailed analysis.Carefully note down further relevant sources discussed in the text and footnotes. It goes without sayingthat you have to then go and find and read and analyze those sources in turn. If you cannot find a source,do not cite it as if you have. Copying other people’s footnotes is nothing less than intellectual fraud, andit is very easily spotted by seasoned lecturers!As the law is stated as at the date of publication of the textbook or commentary, and you cannot simplyrely on textbook authors to have found and discussed all of the relevant sources for you, you also haveto check and update your list of sources gleaned from textbook footnotes.(b) Journal articles are an essential component of the research process:They often provide more up-to-date information than textbooks.They usually focus in more detail on specialized topics and may therefore assist in lifting youranalysis from general overview to in-depth analysis.Textbooks can often be overly descriptive, or adopt a neutral or conservative approach in theirdiscussion of legal principles. A good article, by comparison, involves the statement of a thesis(argument), a critical, theoretical analysis of that thesis, and a conclusion. The quality of argument,in-depth analysis and focus of a good journal article are also the hallmarks of a good essay answer.As discussed above, you can glean relevant journal article references from the footnotes of the textbooksyou have consulted. Then check and update for other journal articles which the textbook authors may nothave cited, by doing a keyword search on an indexing database such as the Index to Legal Periodicalsand LegalTrac: see (at 27 April 2012).(c) From your analysis of the leading texts and journal articles, you will have discovered references toany relevant legislation. In the case of our worked example, the Defamation Act 1992 is relevant. You canuse the traditional paper statutes and statutory regulations, or access the electronic version of thismaterial in Brookers Online (WestlawNZ) or LexisNexis NZ. One of the most important advantages ofthe electronic databases is that each section of the statute has a link that automatically brings up recentcase law on the point.Search the “Contents” section of the Act (or do a full text search of the Act on the electronic database).The Contents lists the Parts of the Act and the subject headings of each section.4

In our example, certain sections of the Defamation Act seem potentially relevant. For example, section28 of the Act addresses the issue of punitive damages. Remember that the essay question asked you todiscuss damages.(d) Case law. Reading cases is an essential component of legal research. You must cite authorities tosupport the arguments you make in your essay. Studying cases is one of the best ways to develop yourability to write a well-reasoned legal opinion. Cases can provide:The standard approach to analyzing a particular type of legal problem.Definitive interpretations of legislation.An exposition of the historical development of the law and current law.Legal and policy arguments relevant to your research.For New Zealand case law, do a keyword search on Briefcase/Viewcase and Linxplus (they often turnup different results!) to update case references you have already found in textbooks, and to check thatyou have all relevant references. New Zealand cases are also available on other databases and websitesand in the traditional paper reports. For case law from other jurisdictions, see (at 27 April2012).6 Writing the essayAt some stage, you will have to stop researching and start writing. Students often have difficultyknowing when they have done enough research. If you have followed a methodical research process, itshould be easier to know when you are ready. When you find that references to the same cases andjournal articles you have already read and noted up keep appearing, you seem to be reading the samething over and over again, or find yourself spending hours chasing some minor peripheral point, the“law of diminishing returns” probably means that it is time to get down to writing the essay.Do not underestimate how long it will take you to write the essay. Rather leave more than enough timeto plan, write, proofread and polish your essay. If you discover in the course of writing that yourresearch on one or two minor points was not as thorough as you thought, you will then still have timeto go back and look at those specific issues again.The object of writing a legal opinion or essay is to communicate often complex concepts. This requiresthat you pay attention to your audience, and that you lead your readers carefully from what they can betaken to know already to the new information and ideas that you wish to communicate to them.You will not be able to communicate a concept properly unless you understand it first. There istherefore no substitute for having thoroughly researched and thought about what you are going towrite before you start to write it.When writing your legal opinion or essay:Ensure that you express yourself concisely and coherently.Avoid excessively long sentences.Use the active rather than the passive voice as far as possible (eg “The Court held that…”ratherthan “It was held by the Court that…” or “The plaintiff brought a claim …” rather than “A claimwas brought by the plaintiff …”).Avoid stock phrases and “style tics” (overuse of “clearly”, “obviously”, “of course” is likely toinfuriate your examiner — if the matter were really that obvious, it is unlikely that it would havebeen set as an opinion topic), clichés, generalizations and excessive use of jargon.Avoid contractions (eg, use it is instead of it’s; cannot instead of can’t), informal language, slang and“humour”.5

(a)Use apostrophes correctly — do not use ’s for plurals and never use it’s in legal writing: it is eitheran impermissible contraction for it is, or it is being incorrectly used instead of the possessivepronoun its (ie, belonging to it).Avoid upsetting or angering your audience with racist, sexist or gendered language. Genderedlanguage can easily be avoided by gender-neutral descriptions or titles (but do not do violence tothe etymology of words — there is no such thing as an Ombudsperson, for example), by using “sheand he” and “his or her”, by pluralising the whole sentence to avoid the use of “his” or “hers” (butdo not “slide” ungrammatically from singular to plural in the same sentence), or by balancing thegender of examples given within the essay as a whole.In respect of general questions of style, grammar and syntax, consult the latest edition of Strunkand White’s The Elements of Style, Fowler’s Modern English Usage, Buxton’s Punc Rocks: FoundationStone for Precise Puncuation and Garner’s The Elements of Legal Style. Spelling should conform to theNew Zealand Oxford Dictionary. Do not use American spelling except in quotations and US casenames.Essay planDesign a basic essay plan that sets out the overall structure of your analysis. The structure of your essayshould be logical. If your research has been through and methodical, this should not be too difficult.For example:1 Introduction2 Are the words defamatory?3 Pete’s Pub’s liability as a publisher4 Defences5 Damages6 Conclusion(b)Developing the body of the essayMany students find this the most difficult part of the task. Despite having a thorough knowledge of thesubject, putting pen to paper can be difficult. To ease this burden, it might help to follow this basicmethodology (sometimes referred to as ILAC) when addressing each issue in turn:1 State the legal issue. (I)2 Discuss and analyze the relevant law. (L)3 Apply the law to the given facts. (A)4 Reach a conclusion on the issue. (C)Consider the following as a possible answer for parts 2 and 3 of the essay. Note that this is not a modelanswer, but it does address the main issues and gives you an idea of how you might go aboutanswering such a question.2 Are the words defamatory?Perhaps the most useful starting point here are the words of McGregor J in Collerton v Maclean 1 wherehe summarizes the leading definitions of what constitutes a defamatory statement: 2A defamatory statement is a statement which is calculated to lower the plaintiff in the estimation of right-thinkingmen, [sic] or cause him to be shunned or avoided or expose him to hatred, contempt or ridicule, or one which iscalculated to convey an imputation disparaging to him in his business or office or calling.Further assistance can be derived from the Court of Appeal in New Zealand Magazines Ltd v Hadlee 3where Blanchard J stated the relevant principles of law to be used when determining whether words arecapable of bearing a defamatory meaning: 4a) The test is objective.6

) The reasonable person reading the publication is one of ordinary intelligence, general knowledgeand experience of worldly affairs.c) The courts are not concerned with the literal meaning of the words or the meaning that might beextracted on close analysis by a lawyer or academic linguist.d) The meaning necessarily includes inferences as the reasonable person can read between thelines.e) The courts will reject meanings that are the product of some strained or forced interpretation.f) The words complained of must be read in context.The focus is therefore on the ordinary reasonable reader 5 reading the words in context. In consideringthe words in context all of the surrounding circumstances must be considered. The words complained ofclearly convey a defamatory sense to the ordinary person. They suggest that Elaine is an unchasteperson who indulges in indiscriminate amatory ventures. Elaine’s reputation is likely to be lowered in theeyes of “right-thinking people generally”.However, would a right-thinking person actually think less of Elaine, given the nature of the medium bywhich the words are expressed? Although, on the one hand, it might be argued that a right-thinkingperson is unlikely to give credence to graffiti in public toilets, the better view is that a right-thinkingperson would think less of someone whose name and address could be found scribbled on the walls ofa public toilet. Indeed, the very context in which the words are found would probably add to the hurt toElaine’s reputation, and add to damages.3 Pete’s Pub’s liability as a publisherPublication is the making known of defamatory matter to someone other than the person defamed. 6 Thewords on the toilet wall were not written by the owner or an employee of Pete’s Pub, but this does notpreclude Pete’s Pub from being held liable. In Webb v Bloch 7 the Court said: “All who are in any degreeaccessory to the publication of a libel, and by any means whatever conduce to the publication, are to beconsidered as principals in the act of publication… .”Here, the toilet walls are the means by which the defamatory words are communicated to thosemembers of the public who use the toilets, in the same way that a newspaper is the means by which adefendant’s words can be communicated to the public.Positive misconduct is not necessary as a failure to act can result in liability. So, for example, posterspasted on the walls of bus shelters by unknown persons can constitute a publication by thoseresponsible for the shelters. 8Because Pete’s Pub is responsible for the maintenance of the walls and has been expressly informed ofthe offending publication it is prima facie liable as the publisher.___________________1 Collerton v Maclean [1962] NZLR 1045 (HC).2 At 1046.3 New Zealand Magazines Ltd v Hadlee (No 2) [2005] NZAR 621.4 At 625.5 Who is “not avid for scandal” (Lewis v Daily Telegraph Ltd [1964] AC 234 (HL) at 260 and 268) and is “not undulysuspicious” (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (HL) at 1261.6 Pullman v Hill [1891] 1 QB 524 (CA).7 Webb v Bloch (1928) 41 CLR 331.8 Urbanchich v Drummoyne Municipal Council [1991] Aust Torts R 69 (NSWSC) at 190.(c)The conclusionAlways end your essay with a conclusion that directly addresses the question you were asked toanswer. The conclusion must draw together and summarize the essential results of your arguments andanalysis in the body of your essay. The conclusion therefore provides the ultimate answer to thequestion and resolution of the problem. It should neither include a paraphrase of your introduction, norintroduce wholly new material.7

Try not to “sit on the fence” in your conclusion. If you have thoroughly and critically analyzed theissues, you should be able to reach a clear and considered conclusion, even if there is no simple “right”or “wrong” answer.(d)After the conclusionPut your essay away for a few days. Then read it again, very carefully and critically. Is the essaysuccinctly expressed, clear and logical? Do the arguments in it sound convincing? Does it adopt thecorrect tone for its audience? Read it aloud – does it flow well? Read it to long-suffering friends andrelatives who know nothing about law, or have them read it. Can they follow your arguments?Proofread for spelling, grammar and style mistakes, and check all legal references for compliance withthe citation rules in this Guide (see below). Legal writing, like all other forms of professional writing, issubject to a set of rules and standards that are not optional. How you set out your writing is just asimportant as what you say. You will lose marks for writing that does not meet professional standards ofspelling, grammar, style and citation.8