Legal Writing: Strengths, Weaknesses, And Improvements

Two strengths and one weakness of a legal writer

Discuss about the two strengths and one weakness of a legal writer.

The concept of legal writing usually refers to the analysis if patterns and presentation of the arguments discussed in the legal briefs and memos. Therefore, as a legal writer one must have the capability of putting the effort while drafting a good legal memo. There are various strengths incorporated within a legal writer. Among which two basic strengths help them in writing a proper legal memo (Enquist, Oates & Francis, 2017). Firstly, a legal writer must have the concentration and ability to go through the cases thoroughly by observing the intricate details. Going through the entire matters or cases in detail is a strength as it is beneficial in such situations when the matter is heard in Court. Reading the elements and important sections of the case facts makes the case scenario easy to comprehend. However, every legal writer will have an advantage if he or she has this strength or quality. The second strength of legal writer is that he should know how to structure the analysis of the case that will permit him to integrate the facts, policies of the argument and the court analysis. Observation and understanding capability are the most significant elements that a legal writer has. Therefore, it acts as bonus strengths to the basic strengths of a legal writer. A legal writer must know how to analyze the cases by applying the relevant legislations on it. Developing a structure for the analysis is essential and it is considered to be a strength of a legal writer. Along with these two essential strengths of a legal writer, he also possesses certain weaknesses (Neumann Jr,  Entrikin & Simon, 2015). Out of which, the most common one is uncertainty and missing out on the major details. In this regard, the most significant fact is in ambiguity and incoherent while writing. Thus, these are the most fundamental strengths of a legal writer. 

A legal writer can improve himself if he is disciplined enough to go through the entire matter and facts of the case. Reading various drafts will result in greater outcome as it will improve the quality of the drafting. Going through innumerable drafts of different kinds will act as a merit for the legal writer (Dernbach et al., 2017). This will also help to gain knowledge and deliver better writing in the legal memos while producing the arguments. A legal memo or draft must be direct and succinct. Another easy way to improve the quality of the memo or the drafting is to provide relevant arguments. It is important on the part of the legal writer to emphasize on the matters he is working on and should give importance on the minute details of the case study (Bhatia, 2014).  A legal writer must try and avoid using adverbs as it makes the structure complicated and complex. Adverbs are treated to be irrelevant and unnecessary in formatting or drafting a legal memo. It is important that the legal writer possesses adequate knowledge regarding drafting the scenario in passive voice. Passive voice makes it easier to comprehend the summary of the case. Simplicity must be given the highest priority. This makes it easier on the part of the judge to decide the case accordingly. It is essential for the legal writer to maintain accuracy and certainty while drafting wherever required.

Improvement of a legal writer

Therefore, it is worthwhile to conclude that if these above-mentioned ideas are strictly followed, one will be able to achieve greater success in the long term as a legal writer.

The facts in the present case are regarding the locus standi of Carmelina and whether she can sue the grocery store. The case concerns itself with negligence, duty of care and liability (Epstein & Sharkey, 2016). 

Carmelina Iacobucci is a 64 year old woman who hosts a party with her best friend. This has been going on for the past 24 years. The ritual is such that both the friends, Carmelina and Bertha go grocery shopping and also enter into a competition wherein whoever finishes shopping first wins. Bertha has always won and therefore Carmelina was prepared to win this time, therefore buying boots which were skid free. Both of them always went to the same store because Tony was the store manager who was Cermelina’s cousin. The rule of the game was that Tony was supposed to be a neutral party who would not help either of them and because Carmelina was a short woman, she got the advantage of taking help from other staff except Tony. While shopping, she came across a seasoning salt on the topmost shelf that could only be reached by standing on the lower shelf. While Carmelina was standing on the lower shelf to fetch the salt, she fell down and sprained her ankle. Because of being hurt, Carmelina could not attend the party and therefore missed the drunk confessions made by Bertha where she had said that she had moved a key item from Carmelina’s reach to make sure Bertha won. Tony, while giving out the information, also said that she had caught Bertha cheating two years ago but Bertha had promised she will never do it again and therefore, Tony never told Carmelina. Alberto Canario was a 17 year stocker who was paid by Bertha to remove the product so that Bertha could win.  

1. Whether Carmelina can sue the store for negligence and whether the shop has a duty of care towards its customers?
2. Is the store liable for the actions of their employees?
3. Has Carmelina contributed to the negligence? 

Negligence is a principle of tort law that mandates that a person owed a duty of care and in case of that breach of duty; he is liable to pay damages (Sharkey, 2016). The injury resulting from the actions of the opposite party can be either monetary or physical injury (McDonald, 2015).  In legal parlance, tort law is committed when a person suffers at the hand of another person who has failed to take necessary actions and care to prevent the harm (Goldberg, Sebok and Zipursky, 2016). The landmark case relating to negligence is established by Donoghue v Stevenson (1932) AC 562 where it was established that for a case of negligence to succeed, it is not necessary to prove any contractual relation, either express or implied. This case decided the term “neighbor” to include that a person has a duty of care which extends to his neighbor, that is, anyone who could be personally and reasonable harmed by the actions of the defendant (Luntz et al. , 2014). For negligence case to succeed it is imperative to use the “foreseability” and reasonability test, that is, the court will assume that a person has an obligation to use optimum care to ensure that no harm befalls the person(Richards, 2015). This was laid down in the Caparo test in the case of Caparo Industries plc v Dickman (Gilber & Gilbert, 2017) Applying the principle to the present case, for Carmelino to succeed in a case of negligence, she has to prove that Tony had a duty of care towards Carmelino and that duty of care extended to ensure that the customers are safe. In this case, Tony was the store manager and he owed a duty of care to all his customers. Tony had himself confessed to Carmelino that he was in charge of the shelf because he had personally assembled it. Though the shelf was new, but the duty of care extended to ensure that the shelf is properly made so as to not cause any harm. The second issue to be considered is whether the store has a duty of care towards its customers. In the present case, the accident happened because the lower shelf broke and therefore it can be said that, the store fell short of its legal duty. The store failed in its duty to take care of its customers and the resultant was damage suffered by Carmelina. Another pertinent issue to the case is whether Tony is liable for the actions of its employees. Tony is the store manager and Alberto Canario is the employee who worked under Tony. Tony has made a confession to Carmelina stating that Bertha herself does not cheat but pays Alberto to shift the items so that Carmelino loses. Tony, being the employer, is responsible for the actions of his employees. This principle is guided by vicarious liability. By the virtue of that principle, Tony is liable for the actions of his employees as was held in Wilshire Police Auhtority v Wynn. 

Contributory negligence happens when a party suffers party because of his faults (Burnham, 2016). This principle was laid down in the case of Revill v Newbery. Applying the rule of contributory negligence, it can be said that Carmelina has contributed to the accident by climbing on the lower shelf.

Conclusion

In the present case, applying the doctrine of negligence and combining it with contributory negligence, it can be said that Tony owed a duty of care to Carmelina but by stepping on the shelf, she has contributed to the negligence and therefore, she cannot sue the shop. 

References

Bhatia, V. K. (2014). Analysing genre: Language use in professional settings. Routledge.

Burnham, W. (2016). Introduction to the law and legal system of the United States. West Academic Publishing.

Dernbach, J. C., Singleton, R. V., Wharton, C. S., Wasson, C. J., & Ruhtenberg, J. M. (2017). A practical guide to legal writing and legal method. Wolters Kluwer Law & Business.

Enquist, A., Oates, L. C., & Francis, J. (2017). Just writing: grammar, punctuation, and style for the legal writer. Wolters Kluwer Law & Business.

Epstein, R. A., & Sharkey, C. M. (2016). Cases and materials on torts. Wolters Kluwer Law & Business.

Gilbert, R. J., & Gilbert, P. T. (2017). Maryland Tort Law Handbook. LexisNexis.

Goldberg, J. C., Sebok, A. J., & Zipursky, B. C. (2016). Tort Law: Responsibilities and Redress. Wolters Kluwer law & business.

Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G., & Harder, S. (2017). Torts: cases and commentary. LexisNexis Butterworths.

McDonald, C. (2015). Torts Law: Blurred Elements: The New Nebulous Nature of Foreseeability, the Confounding Quality of Misfeasance, and the Minnesota Supreme Court's Decision—Doe 169 v. Brandon. William Mitchell Law Review, 41(1), 13.

Neumann Jr, R. K., Entrikin, J. L., & Simon, S. (2015). Legal Writing. Wolters Kluwer Law & Business.

Richards, B. (2015). Negligence and tort law: the corruption myth. LexisNexis Butterworths.

Sharkey, C. (2016). Stealth Ways to Keep Tort Cases from African-American Juries. Jotwell: J. Things We Like, 41