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Writing Skills

Editing, Citations and the Table of Authorities: Keys to Persuasive Legal Writing

By Ivy Grey

Effective legal writing combines articulate argumentation, authoritative citation, and proficient use of tools like the Table of Authorities.

Table of Authorities and the Keys to Persuasive Legal Writing

Effective legal writing connects compelling arguments to cited support from relevant legal authorities. Understanding the hierarchy of these authorities will amplify the strength of your assertions. Tools like Microsoft Word’s Table of Authorities (TOA) feature can improve your productivity.

Combine your legal writing skills with technological assistance to elevate the quality of your work, ensure adherence to court timelines, and help you concentrate on your argument.

The TOA does more than list the citations: It improves the credibility of your arguments and helps you avoid depending too much on certain types of sources — particularly nonbinding secondary sources.

Remember, citations infuse credibility into your writing, bolstering its persuasive power. Effective legal writing combines articulate argumentation, authoritative citation, and proficient use of tools like the TOA.

In our legal system, courts refer to previous decisions — precedents — for guidance. Precedents provide consistency and confidence in the law. Binding precedents fall under the doctrine of stare decisis, requiring courts to follow their own decisions and those of higher courts in the same jurisdiction. Persuasive precedents require courts to consider previous decisions for guidance.

Legal authorities fall into three categories: binding primary, persuasive primary, and secondary sources. Each carries a different weight, influencing their impact on legal arguments and their citation order.

  • Binding primary sources: Constitutions, statutes, regulations and court rulings carry the most weight. These primary authorities provide binding precedents.
  • Persuasive primary sources: Persuasive authorities are primary sources from other jurisdictions or lower courts. These sources are not binding but offer more perspectives.
  • Secondary sources: While carrying the least weight, these sources offer valuable analysis of primary sources, adding depth to arguments. Secondary authorities include legal treatises and law review articles. They often bring clarity and insight that enrich legal narratives.

Understanding the weight of different authorities helps you strategically structure arguments to solidly support your claims and highlight the strengths of different sources. Factors like factual relevance, recency and judicial trends influence authority and determine citation order.

Selecting and Citing Authorities for Maximum Persuasion

A persuasive legal brief requires a sound citation plan, dictated by the Bluebook’s guidelines and enhanced by thoughtful, stylish citation strategy. Rule 1.4 of the Bluebook stipulates that authorities should be arranged based on their weight and relevance to the issue. Think of it as an extension of your argument, putting binding precedents first, persuasive precedents second, and secondary authorities last. The right citations can help you convince a court to follow, distinguish or overrule precedent.

Treat citations as an integral part of the writing, editing and revising process, not mere technicalities. Citations communicate important details about the authority’s weight and validity, such as the issuing court and year of the decision. You need not repeat that data in the prose. During revision, carefully assess citation placement to ensure every legal assertion requiring support is adequately cited.

Using Credibility and Sound Reasoning to Ensure Persuasion

To improve your credibility, make sure the authority you use to support your arguments is sound, properly interpreted, and presented according to Bluebook rules. Even if your legal brief is well written, it may fail if the judge feels your position would require taking legal risks. So, clearly explain why an appellate court would likely adopt your reasoning and conclusions.

The Table of Authorities and How to Build It

The TOA, a critical tool in legal writing, provides an organized list of legal citations in a document. It helps readers — including judges and opposing counsel — efficiently locate and review the authorities cited. However, the TOA primarily serves as an alphabetical index of all legal citations in your brief, offering a clear layout and easing navigation and review of references. It isn’t designed to reflect the weight of authority.

To create a TOA in Microsoft Word, follow these steps:

  1. Identify legal citations in your document for your TOA.
  2. Determine where your TOA should be placed within the document.
  3. Position your cursor at the desired location.
  4. Navigate to the References tab on your Word menu and select the Insert Table of Authorities option.
  5. Follow the prompts given by Word to create your TOA, selecting your citation format, adjusting settings and adding citations.

WordRake has a video tutorial and Legal Office Guru has a written guide with screenshots.

NOTE: TOA requirements may vary by jurisdiction. For example, some jurisdictions require a Table of Points and Authorities (a combined TOA and table of contents).

Use the TOA as a Citation Balancing Tool

Your TOA serves as more than a reference list — it’s a strategic tool for assessing and improving your legal writing and citation practices, which makes it a valuable part of your legal writing strategy. For example, it can be useful in helping you notice an imbalance of references in these situations:

  • Overcitation: Unnecessary repetition or excessive citations can clutter your prose and diminish the impact of your strongest authorities. Carefully assess your citation placement during revision to ensure every assertion requiring support is cited but not overdone.
  • Overuse of string cites: String cites are lists of citations that all support the same point. Using too many can make your argument confusing. The TOA can reveal if you’re relying too much on these, pushing you to reconsider your choices and achieve balance.
  • Overreliance on secondary sources: If no mandatory authority exists in your jurisdiction, persuasive authority from a higher court or a court at the same level could be your best choice. Be mindful, though — if your TOA is mostly citing secondary sources, you might need to revisit your research and argument. Strengthen your argument with more binding authority to give the judge the confidence they need to make a favorable decision.

Mastering legal writing requires an approach that balances clarity, persuasiveness, and a comprehensive understanding of legal authorities and technology. Integrating Microsoft Word’s TOA and other tools into your writing process helps legal professionals meet court deadlines and improves overall legal writing quality. Save valuable time you can better use to effectively communicate persuasive arguments.

Photo by Kaitlyn Baker on Unsplash

Image © iStockPhoto.com.

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Ivy Grey

Ivy B. Grey is the Chief Strategy & Growth Officer for WordRake. Prior to joining the team, she practiced bankruptcy law for 10 years. Ivy was recently recognized as a 2020 Influential Woman in Legal Tech by the International Legal Technology Association (ILTA). She has also been recognized as a Fastcase 50 Honoree and included in the Women of Legal Tech list by the ABA Legal Technology Resource Center. Follow Ivy on Twitter @IvyBGrey or connect with her on LinkedIn.

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