An Explanation of the Difference Between the Seven Biblical Legal Terms Applied to the Word of God

Seven is a biblical number for completion. It begins in Genesis with the six days of creation followed by a rest upon the seventh day. It proceeds thus throughout all of scripture with an easily recognized relationship to a finishing point. For example: The bible applies seven legal terms to the word of God. Each legal application conveys a distinct meaning and should not be tossed off as though they are mere synonyms for the same thought. The longest chapter in the bible, Psalm 119, reveals the seven fold, multifaceted character of God’s Word. In this brief discussion, we address these legal divisions as they are applied in the first nine verses of Psalm 119.

” Blessed are the undefiled in the way, who walk in the law of the LORD. Blessed are they that keep his testimonies, and that seek him with the whole heart.They also do no iniquity: they walk in his ways. Thou hast commanded us to keep thy precepts diligently. O that my ways were directed to keep thy statutes! Then shall I not be ashamed, when I have respect unto all thy commandments. I will praise thee with uprightness of heart, when I shall have learned thy righteous judgments. I will keep thy statutes: O forsake me not utterly,” (Psalm 119:1-8).

Here we go:

Law, meaning, “to teach”, is referenced in verse one. This legal term can represent an individual directive or it can include the entire Pentateuch. This is the Torah, a reflection of what is holiness. It defines a step-by-step process of dealing with sin.

Testimonies, as seen in verse two, is defined as the witness of men concerning conversion or grace, but rather it is defined as the power of the bible to reveal unto mankind what God says concerning Himself and His will. See the most powerful example of this in the words, “I AM THAT I AM”.

Precepts, as addressed in verse four, means “the duties of man toward God”. This involves those components of the Word that reflect the orders of a superior officer when directing the expected behavior of a subordinate. It encompasses the instructions to praise, honor, glorify, and to seek the ways of God.

Statutes, used in verse five, defines the permanent, inflexible requirements that God engraves upon the heart of a Christian. See this as regulations such as “Rejoice evermore. Pray without ceasing. In every thing give thanks: for this is the will of God in Christ Jesus concerning you. Quench not the Spirit. Despise not prophesyings. Prove all things; hold fast that which is good. Abstain from all appearance of evil,” (1 Thessalonians 5:16-22). These are the regulations that God imposes upon His children.

Commandments, verse six, is revealed as the unquestionable authority of the King of Kings to issue absolute laws that contain an inherent necessity of obedience from the subjects. To love the Lord our God with all our heart, mind, body, soul, and spirit is not a mere duty that can be ignored, nor is it a regulation that one might break; it is an absolute and unavoidable condition of acknowledged Lordship. Though falling short in many ways, we love God because within us is a Spirit that humbles Himself to that commandment.

Righteous Judgments, expressed in verse seven, reveals the supreme decisions that God, as sovereign ruler of creation, enacts to ensure that human behavior conforms to His personal standards. Though wickedness may be permitted moments of abandonment, it is never given complete authority. God in His righteous judgment has promised justice to this world. “And I saw heaven opened, and behold a white horse; and he that sat upon him was called Faithful and True, and in righteousness he doth judge and make war. His eyes were as a flame of fire, and on his head were many crowns; and he had a name written, that no man knew, but he himself. And he was clothed with a vesture dipped in blood: and his name is called The Word of God,” (Revelation 19:11-13).

When you first begin reading, you may have noticed that I stopped on verse eight. If you paid attention, you also realized that these eight verses included only six of the seven fold, legal terms for the multifaceted character of God’s Word. To see the final term, we must include verse nine. Yet I hold this verse separate because it is an all-embracing term.

Word, as applied in verse nine, is the answer to “how can a young man cleanse his way?” This term, meaning “to say”, reflects Gods spoken truths as they are recorded in scripture. Just as God created the heavens and the earth in six days, and then rested on the seventh, the Word encompasses all that is defined or relayed via the first six legal applications of God’s word. It is the confirmation and the assurance that the bible, in any version that is recognized by the Holy Spirit that abides within you, is the true and exact Word of God.

Now I cannot close this discussion without reminding each of you that the bible is not a law book, it is a schoolteacher. Please do not use any component of this discussion as a means of browbeating your Christian brothers and sisters. Though we must hold to personal, traditional, and core values, remember always that we worship in spirit and in truth. Rather than hammering with the law, let us always remember the words as spoken by a lady who met Jesus by the stones of a well, “Come see a man”.

Ten Tips to Torture-Free Legal Writing For Paralegals

Traditionally, the task of legal writing has been assumed by the attorney. Increasingly now, however, paralegals are being asked by their supervising attorneys to prepare a variety of legal documents. Some documents are created for internal purposes, relied upon by the attorney in preparation for litigation or an appeal. Other documents are reviewed by the attorney, revised, and ultimately filed with the court. In law offices of all sizes, it is not uncommon for experienced paralegals to write case briefs, research memoranda, motions, memoranda of points and authorities, and even appellate briefs.

Legal writing can be intimidating for the most seasoned legal professional. Approaching your next legal writing assignment does not need to be a daunting experience if you can remember this pneumonic device:

Every Outstanding Paralegal Knows How to Write Well and Effectively.

The first letter of each word corresponds with a tip to help propel your legal writing skills. If you follow these ten tips, you will be well on your way to torture-free legal writing!

Tip #1 – Establish a G.O.A.L. for your writing project.
Before you put pen to paper or fingertips to keyboard, you must first gather some essential information. This information is the GOAL of your project.

* G stands for the ground rules for your project. Whether you play golf, Monopoly, or checkers, a thorough understanding of the rules of the game is paramount. The same principle holds true in legal writing. Familiarize yourself with the document format that should be followed, the type font and font size that are required, and the margins that are acceptable. If you are writing a document that will be used internally, be certain to follow the format preferred by your attorney. Use samples of previously submitted work as a guide in completing your assignment. If you are preparing an appellate court brief, you should know the procedure for incorporating references to the record and the transcript. If you have any questions about the technical requirements for your document, ask your attorney or consult the local rules of the court where the document will be filed. Or, call the clerk of court. Because failure to follow the court rules may be grounds for the clerk to reject your filing, it is always prudent to ask questions and get it right the first time.

* O stands for the objective of your project. Now that you know the ground rules, you need to know how to “win” the game. What is the purpose of your assignment? Are you writing to inform or to persuade? Are you writing a research memorandum to inform your attorney about the client’s viable defenses under state law? Or, are you writing to persuade the court to deny the opposing party’s motion for summary judgment? Understanding the objective of your project enables you to better approach the way you conduct your research. Keeping the objective in mind also helps you focus and structure your writing, safeguarding against the likelihood that key information will be overlooked or omitted.

* A stands for your audience. Whether you are writing to your attorney, another paralegal, opposing counsel, the client, or to the court, it is important to tailor your writing style, tone, and formality in a manner appropriate for your intended audience. For example, the use of contractions is generally considered too informal when writing to the court, but may be acceptable when writing a research memorandum to your attorney.

* L stands for the limitations for your project. When your attorney gives you an assignment, you should confirm the due date. If you are preparing a document that will ultimately be filed with the court, you should also know the filing deadline. Depending upon the type of document you are preparing, it will be important to know the applicable statute of limitations for the cause(s) of action being asserted. Additionally, you should consult the court rules for any restrictions on the number of pages your document may include and the number of exhibits that may be appended.

Tip #2 – Organize your research materials.
Hours of research are meaningless if that seminal case you need is buried somewhere under the piles of paper and stacks of folders on your desk. For easy organization and worry-free retrieval, hole-punch your research materials and file them by category in a three-ring binder. Use color-coded tabs and specially marked dividers to separate your materials into primary and secondary authority, mandatory and persuasive authority, and federal and state authority.

In the upper right-hand corner of the first page of each case you pull, note the client-matter number, the date you retrieved the case, and the legal principle(s) for which the case is important. When you file the case and need to pull it later, you won’t have to re-read it to recollect why you printed it out in the first place. Create an index or table of contents of your research materials and update it as necessary. Save the document on your PC and place a hard copy in the binder.

Tip #3- Prepare an outline.
After you’ve completed your research, but before you begin writing, prepare an outline of the information you will include in your document. Use the required format for your document as a tool in creating your outline. For instance, if you are writing an appellate brief, your outline should mirror each section of the brief, including the statement of the issues, statement of the facts, and argument components. In your outline, for each issue you intend to discuss, include an IRAC (Issue-Rule-Analysis-Conclusion) breakdown.

If you are writing a legal memorandum or appellate brief, list the major points you will address in your argument section and the subheadings that will go under these points. Remember that stronger arguments should appear before weaker ones. After you have prepared a preliminary outline, break it down further into paragraph levels. Briefly identify the topic of each paragraph and list the information that will be included in the paragraph along with the applicable references to authority you will cite. This process may sound laborious, but investing significant time to prepare your outline will actually save you time in the long run.

Tip #4 – Keep your writing simple and short.
With apologies to your college English instructor, legal writing ain’t about using flowery phrases or melodic prose to convey your ideas. On the contrary, legal writing is about reducing the complex to the simple. The abstract to the concrete. And the superfluous to the necessary. The line in Rudyard Kipling’s poem “If”, where he writes of walking with kings but not losing the common touch, sums up what should be your approach to legal writing. Even though you may be addressing attorneys and judges with multiple advanced degrees and countless years of legal experience, you should write your document in such a way that the average person can understand your message. Assume the person who will read your document has never attended law school or graduated from a paralegal program. Keep your writing simple, but don’t sacrifice precision. State the facts, raise the issues, support your argument with the authority, and end with an appropriate “call to action.” In other words…get to the point!

Good legal writing is also short, or concise. Avoid using multisyllabic words when a shorter word choice will prove just as effective. Substitute a single word for a lengthier phrase. “Filed an action against” becomes “sue” and “with regard to” becomes “concerning.” Write in short sentences (25 words or less) to heighten your reader’s understanding. Likewise, shorter paragraphs help your reader better digest your message. You don’t eat a steak all at once. Rather, you take your time, savoring it piece by piece in several bites. Similarly, you don’t want to overwhelm the reader with a paragraph that extends three-quarters of the page. Divide longer paragraphs into more palatable two or three short paragraphs.

Tip #5 – Hold the reader’s interest.
Good writing captures the reader’s interest at the beginning, builds upon that interest throughout the middle, and satiates that interest at the end. Effective legal writing is no different. As you construct your document, remove all barriers and roadblocks to holding your reader’s attention. I suggest you include a built-in navigation device. At the beginning of your document, give your reader a roadmap of where you are going and explain how you intend to get there. Throughout your document, insert mile markers to orient your reader as to how the section he or she is reading fits within the bigger picture.

Prevent reading-induced hypnosis by varying the length of your sentences and paragraphs. Use headings and subheadings as appropriate to break up huge blocks of text on the page. Incorporate sufficient white space to give your readers a visual (and mental) resting place. Emphasize key points or phrases with special formatting such as italics and bold, but be careful not to overdo a good thing. Use bulleted lists as appropriate. Strategically placed graphs, charts, and tables add substantive value to your writing and also help further engage your reader.

Tip #6 – Tie it together with topic sentences and transition bridges.
The previous tip discussed the importance of providing your reader with direction at the outset of your document and guideposts along the way. An effective way to accomplish this is to start each paragraph with a topic sentence to introduce the subject you intend to discuss. End each paragraph with a transition bridge to the next paragraph. Words such as “however,” “moreover,” and “in addition” can help create a seamless transition between independent, but related, thoughts. Using transition language as you move from one point to the next contributes to the overall cohesiveness of your writing.

Tip #7 – Write in active voice.
It is always a good rule of thumb to use active voice in any kind of writing. To do this, arrange your sentence so that the subject performs the action expressed by the verb. In the majority of instances, a sentence written using active voice is more clear and direct than one written using passive voice. Notwithstanding this general principle, there may be times when the facts in your case dictate the use of passive voice. For example, in a criminal case where your attorney represents the accused, you certainly would not want to write, “The defendant assaulted the victim.” Instead, you would write, “The victim was assaulted.”

Tip #8 – Write in positive voice.
Use a glass half-full approach in your legal writing by using positive voice. Change negative statements into affirmative statements. Compare “The defendant should not be prohibited from asserting a contributory negligence.” with “The defendant must be permitted to assert a contributory negligence defense.” Notice how the second sentence reads better and is more direct.

Tip #9 – Avoid legalese and legal jargon whenever possible.
As creatures of habit, we often find it challenging to embrace new ways of doing things. We have a tendency to fall back on the familiar. Thankfully, the foothold this kind of resistance has gained in the area of legal writing is going the way of the pet rock. Law school professors and legal practitioners alike are eschewing the use of archaic legal jargon and legalese. So should you. Legalese and jargon only function to obscure the meaning of your message. Include them only if absolutely necessary. (If you come across an “absolutely necessary” instance, let me know.)

Tip #10 – Edit your writing for the 7 Cs.
After you complete your first draft, carefully review your work and edit for the following:

* Clarity – Aim for specificity. Add information if needed to clarify your point. Remove information that makes your point muddy. Rephrase or re-work passages to ensure your point is conveyed clearly and meaningfully.

* Completeness – Use the outline you prepared from Tip #3 as a checklist to determine if your document is complete. Review your document to see if you included the required elements and necessary information.

* Conciseness – Eliminate unnecessary words and fillers. Remove redundancies. Remember to keep your sentences and paragraphs simple, short, and to the point.

* Concreteness – Eliminate lengthy legal phrases and substitute shorter concrete words and phrases. “Apprehended the suspect” becomes “arrested Mrs. Johnson.”

* Consistency – Read through your writing to ensure your use of tenses and pronouns is consistent from beginning to end. Check to see that you used the same word or phrase each time you referred to the same concept. For example, if you use the word “terminated” to characterize what happened to your client in the first section of your writing, you’ll want to change any references to your client being “dismissed” or “fired” that appear later in your document.

* Continuity – Review your work for organizational continuity. Sentences and paragraphs should flow logically from one to the next. Read the first and last sentences of each paragraph. If you are able to glean the major points by reading these sentences alone, your writing has excellent continuity.

* Correctness – Verify the legal authority you cited is still valid. Double-check your citation format. Review your work to see that you have accurately stated the facts. Finally, carefully proofread your work for spelling, grammar, typographical and other kinds of errors that will detract from your message.

After you have made these revisions, ask a friend or family member who does not have a legal background to read your work. Then, listen to the feedback. Make a second round of revisions as necessary. And then? Breathe easy because you are done. Congratulations.

Copyright © 2009 MARIGOLD CONSULTING. All rights reserved.

Legal Malpractice

Legal Malpractice Theories of Liability

Legal malpractice is a broad term that encompasses various types of civil liability claims brought against lawyers for breaches of duties owed by lawyers to clients and occasionally to other persons that cause damages. Particular conduct by a lawyer may violate the professional standard of care, disciplinary rules, civil statutes, and even criminal statutes. Such conduct may result in money damages, fee forfeiture, disqualification, and loss of license.

Negligence

Lawyers impliedly represent to clients that they possess the requisite degree of skill, learning, and ability necessary to practice law and will exercise reasonable and ordinary care and diligence in applying their skill and knowledge in the representation of clients. Claims for negligence are by far the most common claims brought against lawyers. The traditional elements of any negligence claim are:

1. the defendant owes the plaintiff a duty to exercise care;

2. the defendant breaches that duty of care;

3. the breach of duty proximately caused the plaintiff injury; and

4. damages for such injury.

Lawyers generally owe the duty to exercise care only to clients, and not to third parties. The Texas Pattern Jury Charges defines professional negligence to mean the “failure to use ordinary care, that is, failing to do that which an attorney of ordinary prudence would have done under the same or similar circumstances or doing that which an attorney of ordinary prudence would not have done under the same or similar circumstances.” Proof of the standard of care and of the breach thereof typically requires expert testimony of an attorney.

Breach of Fiduciary Duty

Lawyers are fiduciaries, and as such owe clients the duty of utmost loyalty and are obligated to render a full and fair disclosure of all facts material to the clients’ representation. Lawyers thus owe a duty of good faith and fair dealing with their clients and all dealings between lawyers and clients must involve full integrity and fidelity by the lawyers. Lawyers must place the interests of the clients before the interests of the lawyers or of other persons, including other clients. Failure in the duty of full disclosure is tantamount to concealment. Clients justifiably rely on the integrity and fidelity of their lawyers.

The fiduciary duties of lawyers include, inter alia, avoiding impermissible conflicts of interests, safeguarding client confidences and property, disclosing fully all material information, following client instructions, and not engaging in activities adverse to the clients. When a client alleges that a lawyer has breached fiduciary duties, a presumption of unfairness arises and the lawyer bears the burden of proof to that the fiduciary duty was complied with perfect fairness, adequacy, and equity.

Fraud

Fraud consists of a false representation of a material fact, known to be false or made recklessly without any knowledge of its truth, made with the intent that another party would act upon the representation, upon which such other party reasonably relies thereby suffering injury. Lawyers may be held responsible in damages for defrauding their own clients; lawyers may also be liable for committing fraud upon third parties. Fraud may also arise where a lawyer has a duty to disclose certain information and fails to do so, to the detriment of the client.

Conspiracy

Lawyers engaging in a civil conspiracy may be liable to clients and to third parties. A civil conspiracy consists of a combination of two or more persons with a specific intent to accomplish an object or course of action that is an unlawful purpose or a lawful purpose by unlawful means where there has been one or more unlawful, overt acts in furtherance of the object proximately resulting in damages. Thus, a lawyer may be liable for conspiracy for knowingly agreeing to defraud a third person. Each co-conspirator is legally responsible for all acts done by any of the co-conspirators in furtherance of the conspiracy.

Deceptive Trade practices

The Texas Deceptive Trade Practices – Consumer Protection Act (DTPA) only applies to lawyers for claims for damages not based on the rendering of legal services the essence of which is the providing of advice, judgment, or opinion. The DTPA does however apply to express misrepresentations or unconscionable acts that cannot be characterized as advice, judgment or opinion. The advantages of pursuing a DTPA cause of action are a somewhat lesser standard for proving causation of damages and the potential of recovering multiplicative damages and attorney’s fees.

Legal Malpractice Remedies

Causation

A plaintiff in a negligence or breach of fiduciary duty legal malpractice action must prove that the breach of duty by the lawyer proximately caused the plaintiff’s injury, resulting in damages. Not all negligent acts or breaches of fiduciary duty by lawyers actually cause injury. Proximate cause entails foreseeability and cause in fact. Foreseeability contemplates that the lawyer should have anticipated the risk to the client by the negligent act. Cause in fact requires that the negligent act or omission be a substantial factor in causing the injury without which the harm would not have occurred. Proof of causation in legal malpractice cases usually requires the expert testimony of an attorney to link the breach of duty to the injury caused thereby.

The Texas Jury Pattern Charges defines proximate cause as that “cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an attorney using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.”

Damages

The most common remedy sought by clients from their former lawyers is the recovery of damages occasioned by the negligence or other breach of duty by the lawyer. The traditional method of establishing damages when a lawyer negligently represents a client is to prove the “suit within a suit.” The plaintiff must prove that but for the lawyer’s negligence, the plaintiff would have recovered judgment in the original case, the amount of that judgment, and that any such judgment would have been collectible. In the case where the lawyer malpracticed a defendant’s case, the client must prove that but for the lawyer’s negligence, the client would have prevailed on a meritorious defense. The “case within a case” standard of proof however may not be required in breach of fiduciary duty and DTPA cases.

In other legal malpractice cases not involving underlying litigation, traditional rules on damages provide that the client may recover all foreseeable damages caused by the lawyer’s wrongful acts or omissions. And, exemplary damages may be recoverable for lawyer fraud or for other wrongful acts committed with malice.

Fee Forfeiture

A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer’s compensation in the matter, even if the client suffered no actual harm by virtue of such violation. Typically, fee forfeiture cases are premised on allegations that the lawyer committed a serious breach of fiduciary duty or fraud. In the trial a fee forfeiture case, a jury will consider whether the lawyer committed the violation claimed, and the trial judge will determine whether such violation is clear and serious and, if so, the amount of the fee to be forfeited.