Legal Communication & Rhetoric
Legal Comm. & Rhetoric
Analytical documents are a hallmark of the law school legal writing curriculum and of the practice of law. In these documents, the author applies a body of law to a set of facts and reaches a conclusion. Oftentimes, that conclusion is phrased as a prediction (“The court is likely to find . . .”), and many academics even refer to analytical documents as “predictive” document types. If that describes you, my goal is to convince you to change your ways. Instead of conceptualizing legal analysis as “predictive,” we should simply conceptualize it as analytical. Rather than writing predictive conclusions to legal analyses, attorneys and law students should simply write legal conclusions to legal analyses. Why is this distinction important? Because when it comes to legal analyses, couching the conclusion in terms of a prediction is inaccurate. The conclusion of a legal analysis should be a statement about the law, not a prediction about the decisionmaker.
Sensing that inaccuracy, phrasing conclusions to legal analyses in the predictive causes discomfort to some legal writers and can be a barrier especially when training new legal writers. There is a difference between conducting a legal analysis and predicting the outcome of a legal dispute. That line should both be recognized in the teaching of analytical document genres and be conveyed by legal professionals in the execution of legal analyses. Thus, law professors and legal supervisors should avoid instructing their charges to hypothesize on the future actions of a third-party decisionmaker when what they really want is for the student or junior attorney to apply the currently existing law to the client’s facts and arrive at a legal decision.