Legal Writing: Terms of Art and Consistency

Introduction

• Focus on terms of art and consistency in legal writing.
• Terms of art: specialized meanings in law, similar to other fields like medicine.

Legal Terms of Art

Recognizable Words with Specialized Meanings:

• Negligence: Legal concept differing from common usage of carelessness.
• Partnership: Legal entity differing from common personal partnership.
• Assault: Specific legal meaning in tort law with defined elements.
• Judgment: Legal determination in litigation, different from everyday good/bad judgment.
• Motion: Legal request for court relief, different from physical movement.
• Excuse: Legal doctrine allowing contract performance delay or relief.

Specialized Legal Terms:

• Force Majeure: Contract clause excusing performance due to superior force.
• Res Ipsa Loquitur: Tort law doctrine; causation assumed due to circumstances.
• Estoppel: Prevents a party from retracting a statement or claim.
• Jurisdiction: Authority of a court in a geographic or subject area.
• Fee Simple Absolute: Complete ownership of property without future interest.
• Liquidated Damages: Pre-agreed contract damages specified in advance.

Importance of Terms of Art

• Essential to use precise legal language to avoid misunderstandings.
• Legal education helps in understanding and correctly using these terms.

Consistency in Legal Writing

Challenges and Practices:

• Avoid paraphrasing legal terms; maintain legal accuracy.
• Say the same thing the same way: Consistency is crucial.

Elegant Variation

• Deborah Basho's Quote: Elegant variation can be misleading in legal writing.
• Avoid synonyms that may suggest different meanings.
  • Example: "Landlord" vs. "Lessor" suggests different entities.
• Courts assume different words suggest different meanings.
  • Examples from the Seventh Circuit and Southern District of New York.

Consistency in Contracts

• Use identical terms to avoid ambiguity.
  • Example: Contract, agreement, understanding; Goods, materials, items.

Conclusion

• Terms of Art: Specialized legal meanings must be preserved.
• Consistency: Avoid changing terms to prevent ambiguity.
• Legal writing requires precision and repetition rather than creativity.