In litigation, you should always consider whether your written arguments have been framed with the most effective phrases relevant to your client’s situation and legal issue. Though you might have a fairly decent grasp of the legal principles in your case, you might not fully appreciate the value in researching the most “judicially relevant” phrases. Here are some tips to spice up your legal writing.
With written court submissions, the victory seldom goes to the in-born masters of rhetoric, to the punctilious punctuators, or to the masters of the witty turn of phrase. You’re playing to the court, and what the court ultimately wants to know is: Can it rely on your arguments in making the most legally correct decision? “Correct,” under our system, means “in keeping with judicial precedent and/or proper statutory interpretation.” In this light, your incisive wisdom and what – in an ideal world – ought to be the best argument is almost beside the point.
A simple example is in order. Let us assume that your client is a defendant in an action where he has been alleged to have fraudulently negotiated an instrument on behalf of his corporation. The Ontario Superior Court of Justice decision of Lee Steel Corp v. Gordon 2000 CarswellOnt 2485 provides some excellent phrases worth mining for your arguments (over and above its use as dicta for citation purposes).
Using Lee Steel as your phrasing style guideline, you might write that when “one examines the whole of the evidence,” it is clear “that the conduct, nature and design of the…defendant…was [not]to deceive by false representation;” that, rather, the plaintiff’s evidence only points to “circumstances of mere suspicion” that do “not warrant the conclusion of fraud.”
Notice how crisp and artful that argument sounded, how so judicially correct in its very phrasing – and it’s essentially cribbed from the case law.
In sum, case law research may be profitably employed not just for its value in citing legal precedent, but in furnishing you with just the right phrasing to make you sound like a bona fide legal scholar. Though your opponent might be able to stylistically out-write you in any other field, you can easily out-maneuver them at court simply by turbo-charging your sentences with your case law-sourced phrasings.
Bad writers take note – the vast sea of case law beckons, to be used as your Cliff’s Notes for great legal writing.