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Subject:Legal writing vs. documentation From:"David Neeley" <dbneeley -at- gmail -dot- com> To:techwr-l -at- lists -dot- techwr-l -dot- com Date:Thu, 29 Mar 2007 10:05:32 -0500
First, let me say the comments regarding legal "documentation" is
interesting.
Second, I should say that I practiced law for ten years before turning to
tech writing and technology consulting.
Regardless of what Wikipedia may say about legal writing being done by
"technical writers" that is incorrect. In the main, legal writing is done by
lawyers--with some documents being assembled by legal assistants under the
direct supervision of lawyers. (Very often, legal assistants assemble
"boilerplate" sections previously written by lawyers.
Although it may seem that lawyers write things to be deliberately confusing
and only able to be interpreted by lawyers, that too is mostly not true.
There are two problems: first, legal cases interpret the law based upon
written and unwritten law and prior case law. Unwritten law--primarily in
this country assumptions originally based upon English Common Law (also
largely unwritten)...except for Louisiana, based originally upon the Code
Napoleon. Written laws include actual laws passed by Congress (in the case
of federal law) and also administrative rules and regulations. Prior case
law often means that the doctrine of stare decisis applies to a given
situation.
The result of all this is that what may appear to be an ordinary phrase may
have a special meaning under the law, or cases have found such a phrase to
be able to be interpreted in numerous ways. Thus, to be abundantly clear, a
lawyer may be excessively wordy to narrow the focus of the document down so
it should not be able to be interpreted other than in the method the parties
intend.
Of course, the fallacy is that often the same thing could be said in a much
clearer fashion--and this is exactly a primary movement in law today, to
make documents clearer and easier to follow for everyone.
As I said, that is the first reason why documents are often so difficult to
read and so complex. The other reason is that most lawyers are terrible
writers.
Consider: they started out usually with a government major--or art, or
history, or nearly anything else often with loose standards of writing. Even
English majors are mostly literature students with a surprisingly poor
writing background in too many cases. Then they go to law school--and for
the reasons enumerated above their writing is often made worse. (It took me
many years to begin to recover from the mess law school made of my writing.
Some would opine that I am still struggling with it!)
Back to the subject, though. For these reasons, lawyers are *not* technical
writers...or seldom are, to put it more accurately. Some, though, are also
engineers--and these often are the ones who work with patents.
Next, what is "legal documentation?" I think the works that come closest to
that concept would be legal treatises. Law books have two general
types--case books, which are generally collections of case decisions though
often with commentary, and treatises--commentaries upon the law that are
replete with many case references.
However, these are also all written by lawyers.
It would be very nice if more lawyers began to master some of the techniques
commonly used by technical writers. However, I think it is completely
inaccurate to say that technical writers are anywhere in the typical legal
writing process or that legal writing comes under the proper heading as
"documentation."
David
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