BOSTON CITY CAMPUS

ACADEMIC LEGAL WRITING GUIDE

Authors: Gadiël Robbertze and Dominique Kerchhof

Boston City Campus Proprietary Limited

No part of this publication may be reproduced or transmitted in any form by electronic or other means without prior written
permission of the publisher.

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 Table of Contents
1. Introduction.................................................................................................................................... 1

2. Purpose of guide ............................................................................................................................ 1

3. Academic and legal writing ............................................................................................................ 1

3.1. Elements of good legal writing .................................................................................................... 3

3.1.1. Unity ..................................................................................................................................... 3
3.1.2. Tone...................................................................................................................................... 3
3.1.3. Structure of the argument.................................................................................................... 3
3.1.4. Plagiarism ............................................................................................................................. 4
3.1.5. Paraphrasing ......................................................................................................................... 5
3.1.6. Referencing .......................................................................................................................... 7
3.1.7. Editing................................................................................................................................... 7
4. FIRAC .............................................................................................................................................. 8

5. Application-based questions ........................................................................................................ 12

6. Reference List ............................................................................................................................... 16

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 1. Introduction

To enrich your learning experience at Boston City Campus (“Boston”) and to ensure
that students are exposed to various sources, Boston has prepared this Academic
Legal Writing Guide (“Guide”) to assist students with academic legal writing, answering
application-based legal questions and questions about case law.

We trust that this Guide will provide you with the required assistance and improve your
learning experience.

Should you have any queries regarding the content of this Guide, please contact
Gadiël Robbertze, Academic Quality Manager, Faculty of Law: gadielr@boston.co.za.

2. Purpose of guide

The purpose of this Guide is to assist with developing your critical-thinking skills. The
Guide aims to assist students by providing a framework for answering (legal) questions
that either refer to a set of facts or require the application of case law.

Some students face difficulty when answering longer questions in Formative

Assessments and Summative Assessments. The framework provided herein will
assist you when ansering such questions. Please note however, this Guide is not an
exhaustive account of the principles which apply to effective legal writing.

3. Academic and legal writing

"Lawyers have two common failings. One is that they do not write well, and the other
is that they think they do". (Van der Merwe, S, 2014: 23).

Legal professionals, academics and students must write ethically, skilfully, and
accurately. (Van der Merwe, S, 2014: 23). The reason for doing so is to reach the
required standard of professionalism, maintain ethical standards for purposes of self-
respect, respect for the reader and the writer of the sources cited, to avoid

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misunderstanding in litigation and in general and to develop and clarify legal analysis
of any legal topic.

When it comes to professionalism, one requires the competency to portray oneself as

professional. Professionals are well-educated people who are paid for their services
and the practice of law falls within this ambit. (Van der Merwe, S, 2014: 28). If an
argument in either academic writing or legal documents is presented poorly, it could
result in severe consequences, such as losing a case or not obtaining the required
results. In the case of a student, it may resut in the mark obtained not being an
accurate reflection of the student’s understanding of the relevant legal principles. One
must, therefore, not abandon any formal structures as is required in terms of legal
writing. A legal academic or practitioner must conduct themselves in such a manner
that portrays professionalism and an understanding of the law.

Regarding the maintenance of ethical standards, Boston and the professional world
expect you to approach all work with honesty and integrity. One must, therefore,
always avoid plagiarism. For a comprehensive guide on avoiding plagiarism and using
adequate referencing, refer to the Boston City Campus, Harvard Method of
Referencing: A Beginner's Guide, which is accessible on your ColCampus portal.

Poor drafting reflects a lack of self-respect and respect for the author. It is, therefore,
important that one remains conscious of the effects of poor writing. Writing ethically
and professionally has further positive aspects in that it allows for the document that
has been produced to be understood clearly and comprehensively. This is particularly
important when drafting legal documents and academic writings.

Finally, ethical and professional writing can benefit the writer and the reader in
developing and clarifying legal analysis. It has been argued that "[t]he writing process
serves both a creative function in generating ideas, and a critical function in allowing
the writer to identify ambiguities and inconsistencies in her reasoning" (Van der
Merwe, S, 2014: 38, quoting Ehrenberg).

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3.1. Elements of good legal writing

3.1.1. Unity

This means that your writing should flow logically. The argument you are presenting
should unify the reader to a singular idea, and the idea acts as the focus of the essay.
For example, where your writing has a introduction, body and conclusion it will more
likely flow logically (see 3.1.3 below).

3.1.2. Tone

The tone is an indicator as to what the writer says about the topic. The tone depends
on the writer's point of view and affects how the writer expresses him/herself. In this
regard, as a writer, you must carefully select the words you wish to use to relay your
tone and argument effectively. In legal and academic writing, a formal tone is required.
You must write in a formal and academic manner, which means that writing informally
or using colloquial language is not allowed.

3.1.3. Structure of the argument

This is probably the most essential element to consider. This usually encompasses an
exact order of your writing. It includes having a clear introduction that encompasses
broader and narrower statements, including the question at hand. In this portion of
your writing, you should indicate the main issue and why it is important to write on the
topic. You should give a clear background to engage the reader. You can do so by
using a fact, quotation, or rhetorical question. This portion of your writing should also
indicate what your argument will be. Finally, your introduction highlights the main
points which will be discussed in your writing.

This is followed by the body of the writing, which requires planning. This usually refers
to applying the set of facts or presenting your argument. Use paragraphs to relay your
argument. Consider the main points you want to make and decide on your opinion and
stand about the question. You can use examples to support your argument. It is
essential to remain clear and concise when writing your paragraphs.

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Finally, you must conclude your argument. You can do so by starting with a linking
phrase (for example, "in conclusion" or "in summary"). If there is an opposing view,
partly admit that the opposing argument may be true but restate your opinion and state
why it is important. Alternatively or concurrently, you can simply refer back to your
essential question and provide an answer thereto. Your recommendations follow this.
There is no need to copy your introduction at the end of your writing. Instead, rephrase
your research statement by paraphrasing your research statement. Furthermore,
ensure that your conclusion accurately summarises the main ideas put forward in your
writing. Lastly, it is important that your conclusion answers any important observations
that you have highlighted in your introduction.

3.1.4. Plagiarism

Plagiarism can be described as presenting someone else's work or idea as your own,
with or without their consent, by incorporating it into your work without full
acknowledgment. ("Plagiarism", n.d.). In other words, passing someone else's work
off as your own and not giving credit to the author is considered plagiarism.

Plagiarism is considered an academic sin, and being found guilty of plagiarising an

assessment could result in very serious consequences for the student.
(Berlinck, 2011:369). Academic integrity is one of the most important aspects of writing
at any higher education institution. (Mahabeer & Pirtheepal, 2019: 2). Academic
integrity upholds and improves the quality of teaching and learning and assessments
while academic dishonesty compromises the quality of the teaching and learning
process as well as undermines the credibility of the student, the lecturer, and the
institution. (Mahabeer & Pirtheepal, 2019: 2).

Academic integrity in assessment within higher education institutions speaks to the

ethical policy and core values of integrity in upholding the institution's goals, respecting
and protecting the knowledge of oneself and others, and ensuring that all students are
guided in the best ethical practice of learning. (Mahabeer & Pirtheepal, 2019: 2).

There are a variety of resources available on the HE Library Dashboard on Colcampus

that you can use to assist you, such as the "Beginner's Guide to Plagiarism" booklet.
Ensure that you familiarise yourself with all the resources available to you.

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3.1.5. Paraphrasing

At times lecturers will ask you to write information in your own words. This is done to
determine whether you understand the work and can properly and accurately convey
that information to the reader.

In simple terms, paraphrasing means rephrasing or rewriting text in your own words
without changing its meaning or context. (Paraphrasing and summarising; n.d.).

It is very important to keep the same meaning and context of the original text.

Some words or phrases cannot be changed like the names of cities or the names of
legislation. E.g. Competition Act 89 of 1998 cannot be renamed to Opposition Act 89
of 1998 or Rivalry Act 89 of 1998. The Act name remains the same and cannot be
changed.

If you change the name of an Act, this would mean that you are referring to a piece of
legislation that does not exist. Remember that legislation is one of your primary
sources of law.

Another example would be "married in community of property" will remain the same
and cannot be paraphrased to something like "wedded in community of property". It is
important to distinguish between phrases and terms that can and cannot be changed.

A helpful resource to refer to is Colostate [website]. Paraphrasing: The Author's

Thoughts in your own words. Retrieved from
https://wac.colostate.edu/docs/books/informedwriter/chapter3.pdf [Accessed on 2
November 2022].

The following are examples of paraphrasing:

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Example 1
Original text:
"The "skills" courses have been designed and instituted at many law schools for the
very purpose of teaching effective advocacy (including legal writing) and, in many
instances, these have produced positive results. However, it is when teaching these
skills courses that one realizes that traditional theory subjects may also play a crucial
role in achieving the ideals of effective advocacy as a whole." (Swanepoel & Van
Deventer, 2012: 125-126).

Paraphrased text:
In several law schools, a "skills course" has been designed and implemented to teach
effective advocacy and legal writing skills. These skills courses have yielded positive
results in many instances. In teaching these skills courses, one realises that traditional
theory subjects may play a significant role in achieving the ideals of effective advocacy
as a whole.

Example 2

Original text:

"Effective advocacy is the ultimate goal of law-school training. Persuading a person to

move from point A to point B by the use of language is the lawyers' primary skill. A
grasp of legal-research methodology, understanding legal conventions, being able to
analyze and synthesize and having 'lawyer-like' thought patterns are all building-
blocks to the ultimate function of a lawyer-advocacy." (Swanepoel & Van Deventer,
2012:126)

Paraphrased text:

The ultimate purpose of law school preparation is effective advocacy. The lawyers'
main skill is to persuade people to go from point A to point B through the use of words.
Having a grasp of legal-research methodology, understanding legal conventions,
analyzing and synthesizing information, and possessing "lawyer-like" thought patterns
are all necessary components that make up the ultimate function of a lawyer -
advocacy.

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3.1.6. Referencing

Referencing is a method used in the academic world to indicate where ideas, theories,
quotes, facts and any other evidence and information used in an assignment can be
found. The Harvard style of referencing is an author–date method that cites each
source within the body and at the end (reference list) of an assignment by providing
the name(s) of the author(s) followed by the date of publication. This in-text citation
provides an identifiable reference point so that readers can immediately see the
source of information and are able to access further reading on the topic if so desired.
Refer to Boston City Campus Harvard Referencing Guide for Beginners and it can be
found on the HE Library page.

3.1.7. Editing

In this final phase, you must proofread your writing and consider the sentence
structure to ensure that your argument has been relayed clearly and concisely. In this
regard, avoid repetition of arguments. Furthermore, one should avoid long-winded
sentences, ambiguous and vague writing. Furthermore, you must ensure that the
correct grammar and punctuation have been used.

In order to effectively edit and proofread your writing, the following points can be used:

• Take a break from your writing.

• Return to your writing with a fresh mind and set of eyes.
• Edit your sentences.
o Can you simplify sentence?
o Can you reduce the punctuation?
o Use active voice instead of passive voice.
o Academic writing requires you to write in the third person. E.g. them,
their, oneself.
o Use gender-neutral language where possible. E.g. chairman –
chairperson.
• Revise your draft and look for weaknesses.
o Is the argument clear?
o Do you have examples to illustrate your point(s)?
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 o Is your argument convincing?
o Have you referenced your sources correctly?

4. FIRAC

FIRAC is an acronym that functions as a methodology for legal analysis. It assists you

“F” – the first step is to ascertain the FACTS of the case.

“I” – the second step is to identify the ISSUE that the court deals with / dealt with

“R” – the third step is to find an accurate statement of the RULE OF LAW applied
in the specific case.

“A” – the fourth step is to APPLY the rule to the facts which can be done as
follows:

a) Identify one element issue

b) Use one or more legal reasoning methods to compare the element to the
facts and determine whether the element is satisfied
c) Repeat (a) and (b) for each element you have identified

“C” – the final step is to determine the CONCLUSION to the issue.

in solving legal problems, specifically when case law is being referred to. Below is an
outline of the FIRAC steps:

Example 1:

With reference to the case of S v Ngubane [1985] 2 All SA 340 (A), comment on
the overlap between intention and negligence.

Note to student: Apply the FIRAC method to discuss the facts, issue, rule of law,
application and conclusion.

The case is accessible using the following link

https://www.saflii.org/za/cases/ZASCA/1985/41.html [Accessed 19 August 2022]

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Facts: The accused was intoxicated and stabbed the victim multiple times but did
not have the intention to kill her. The victim subsequently died as a result of the
multiple stab wounds.

Issue: The accused alleged that the court should have convicted him of culpable
homicide and not murder with a consequential reduction of the period of
imprisonment by five years.

Rule of law: When the accused was called upon to plead to the indictment for
murder, he pleaded guilty to culpable homicide and it was indicated that the
prosecutor was willing to accept the plea. The accused alleged that he did not act
intentionally, but rather negligently. This meant that the accused was qualified by
his legal blameworthiness. Thus; it was argued that a killing cannot be both
intentional and negligent.

Application: The accused grossly exaggerated the state of his insobriety, even if
there was some provocation, the accused did not lose his power of self-control,
but was able to foresee the consequences of his acts, and did inform the intention
to kill the victim.

Conclusion: The judge concluded that even if an accused has intention to commit
a crime, he can also be held liable in terms of negligence.

Example 2:

Read the fictitious scenario below and answer the question that follows:

Romano, a doctor, treated Margaret, who had been his patient for many years, and
who was critically ill. Margaret was of an advanced age, mentally and physically
exhausted. Margaret was concerned about the continuance of her fruit farming
operations. She initially wanted her grandchildren to take over the farming operations
should she pass away. However, against Margaret's initial doubt, Romano
persistently advised and eventually persuaded her to agree to transfer four farms to
him. Transfer subsequently took place. Margaret recovered and wished to rescind
the contract on the ground that Romano had exerted his influence over her
improperly.

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Required:

Using the IRAC method, determine whether Margaret's consensus was obtained
properly.
Link: California State University, Northridge [website]. Using the IRAC structure in
writing exam answers. Retrieved from
https://www.csun.edu/sites/default/files/IRAC%20ANALYSIS_Saunders.pdf
[Accessed on 2 November 2022]

Note to student: I-R-A-C means I = Issue R= Rule of Law A= Application/ Analysis

(as Saunders mentions in his article) C= Conclusion

Issue:

The issue in this scenario is whether Margaret's consensus was obtained properly by
Romano, when she transferred her fruit farms to him.

Rule of law:

• The rule of law applicable in this scenario is undue influence.

• Undue influence occurs when one of the parties to a contract is persuaded to
conclude a contract with someone who had acquired some influence over her
and who had exerted that influence to obtain her consent. (Van Huyssteen,
Lubbe, Reinecke, 2016:118).
• The case of Preller and Others v Jordan 1956 (1) SA 483 (A) set out the four
elements/ requirements for undue influence: (Van Huyssteen, Lubbe,
Reinecke, 2016:119-120).
o First element: that the other contractant obtained an influence over him;
o Second element: that this influence weakened his powers of resistance
and made his will pliable and;
o Third element: that the other contractant used this influence in an
unconscionable manner to persuade him to agree to a transaction which;
o Fourth element :(a) was to her detriment and (b) he would not have
concluded if she had enjoyed normal freedom of will. (Van Huyssteen,
Lubbe, Reinecke, 2016:119-120).

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Application / analysis (Discretion is allowed here)

• The contractant obtained an influence over her: The doctor (Romano) obtained
an influence over Margaret, who was his patient, over a period of time. The
special relationship (doctor-patient) between them allowed Romano to exercise
his influence over the ailing patient. He was persistent about Margaret
transferring the farms to him.

• Influence weakened her powers of resistance and made her will pliable:
Over time and due to Margaret's ailing health, Romano's continued persistence
and influence weakened her resistance and made her will pliable. Romano
could easily have unduly influenced Margaret, because of his position as her
physician. That is a position of trust. (fiduciary relationship)

• That the other contractant used this influence in an unconscionable manner to

persuade her to agree to a transaction: The doctor used his influence in an
unconscionable manner because he took advantage of his patient's ill physical,
advanced age and mental health. Romano expressed concern over Margaret's
farming operation and eventually persuaded her to transfer her farms to him to
her detriment.

• which (a) was to her detriment, and (b) she would not have concluded if she
had enjoyed normal freedom of will: Margaret would not have transferred the
farms to Romano if she had been in good health. There was a causal link
between the influence and the contract.

Conclusion

In conclusion all the elements of undue influence have been satisfied and therefore,
Margaret's consensus was not obtained properly.

Margaret would have not concluded the contract with Romano if she had enjoyed her
normal freedom of will. The contract is voidable and can be rescinded by Margaret.

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 5. Application-based questions

The FIRAC method can also be applied in application-based questions. Often we use
the IRAC method with application questions instead of the full FIRAC method. The
only difference with IRAC is that we do not restate the facts, as the facts are provided
in summary in the question provided and it is not always necessary for the examiner
to have the facts restated.

Application-based questions are vital in law as it places you in the shoes of a legal
advisor, attorney, advocate etc. Application-based questions will help you develop
valuable skills in identifying relevant information, applying legal principles to the facts
before you and writing legal advice in a clear and fluid manner.

In answering application-based questions it is important to read the question

carefully in order to identify exactly what information is relevant, since some of the
information may not be relevant to what is required in the answer. This skill is
transferable in legal practice. When consulting with clients, you may realise that a
client can talk about an incident, but you may find that not all the information they are
sharing with you is relevant.

Thereafter, it is important to break the question down (especially if it is a long

question) to determine which elements or legal principles should be relayed in your
answer. A common way to analyse the question is to use the FIRAC method discussed
in point four above. When extracting material facts, it is important to be succinct and
concise and avoid unnecessary repetition. Only consider the facts that have legal
implications.

The issue in an application-based question refers to the things which require a legal
response in your answer.

Regarding the rule of law, you should list all legislation, relevant provisions, legal
principles and case law applicable to the issue that needs to be addressed.

Thereafter, you have to apply the relevant rule of law to the set of facts. When
addressing the issue, you must be able to justify your answer with legal authority. You
need to take the examiner through your thought process on a step-by-step basis.

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Finally, you should reach a conclusion. This is where you generally answer the
question in the affirmative or negative. If you have been asked to give legal advice,
this would be the step where you provide your legal advice.

In preparing your answer, it is important to make you answer "reader-friendly".

Therefore, keeping the structure in mind is always important and making it as easy to
follow your legal argument as possible.

Example 3:
Read the fictitious scenario below and answer the question that follows:

Billy rents an apartment owned by Sharna which is located in Stellenbosch, Western

Cape. The parties did not enter into a written lease agreement but verbally agreed
that Billy will rent the apartment for a period of two years, starting on 1 January 2020
ending on 31 December 2022. However, due to financial difficulties, as a result of the
COVID-19 pandemic, Sharna sold the apartment on 1 January 2021.

With reference to the facts above, fully discuss whether a valid lease agreement was
concluded between Billy and Sharna and what the legal implications will be on the
lease agreement now that the apartment has been sold. Refer to relevant legislation
and case law in your answer.

Model answer:

First Issue: Valdity of lease agreement

This is a matter dealing with the validity of a verbal lease agreement and the legal
implications of selling the leased property during the duration of the lease.

The first issue is whether there is a valid lease agreement.

Rule of law:

In this regard, the formalities in respect of the Leases of Land Act 18 of 1969 provides
that no formalities are required for the validity of a lease as between landlord and
tenant (J Scott & S Cornelius et al, 2014:227). A lease can, therefore, be verbal, the

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parties having to reach consensus on the essential elements. Should the parties wish,
they can agree on further terms, but if this is not the case, the law provides for the
remaining terms of the agreement (J Scott & S Cornelius et al, 2014:227).

Application:

With reference to the above, the facts indicate that Billy and Sharna did not enter into
a written lease agreement but verbally agreed that Billy will rent the apartment for a
period of two years. As per the Leases of Land Act 18 of 1969, this agreement is valid
and the parties have reached consensus on the essential element, namely the
duration of the lease (i.e. it will last for two years starting on 1 January 2020 ending on
31 December 2022). The parties did not agree on any further terms, thus the law
provides for the remaining terms of the agreement.

Conclusion:

With reference to the above, a valid agreement was concluded between Billy and
Sharna meaning that the lease agreement is valid.

Second Issue: legal implication of selling the apartment during the lease period

The facts above deal with two issues. I have dealt with the first issue, namely, whether
the agreement between Sharna and Billy was valid. The second issue is to determine
the legal implication of selling the apartment during the lease period.

Rule of law:

In Roman Law, if a leased property was purchased, the new owner could evict the
tenant. In Roman Dutch law, a different approach arose, in terms of which the lease
took precedence over the sale. This principle is known as huurgaatvoorkoop and it
has been adopted in South African law. (J Scott & S Cornelius et al, 2014:227).

The doctrine is designed to prevent the landlord from transferring to the purchaser
greater rights than the landlord has in the property, bearing in mind that once the
property has been leased, the landlord no longer has the right of occupation.
Furthermore, the doctrine aims to protect real rights in the property afforded through
huur gaat voor koop, and which the tenant acquires once the tenant takes occupation
of the property. Prior to occupation, the tenant has a personal right against the landlord
to compel delivery or for damages flowing from failure to deliver( J Scott & S Cornelius
et al, 2014:227-228).

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The purchaser of the property becomes the onerous successor. This means that the
purchaser is bound by a short lease over the property if the purchaser knew of the
lease, or if the tenant is in occupation of the property. The purchaser therefore acquires
rights in the property, but these are subject to the lessee (J Scott & S Cornelius et al,
2014:228).

Application:

With reference to the rule of law above, namely the Roman Dutch doctrine of huur
gaat voor koop, the lease takes precedence over the sale of the apartment and the
purchaser will acquire rights in the property but this is subject to Billy's rights as a
lessee. Therefore, Billy may remain on the property for the duration of the lease
because he was in occupation of the property at the time of the sale thereof.

Conclusion:

The legal implication of the property being sold during the lease period will not affect
Billy, and his lease will continue to exist until the expiration date. The purchaser
acquires rights in the property, but these are subject to the lessee, namely Billy.

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 6. Reference List

Books:

• Scott J, Cornelius S. 2014. The Law of Commerce in South Africa Cape Town:
Oxford
• Van Huyssteen LF, Lubbe GF, Reinecke. 2016. Contract: General Principles.
Cape Town: Juta Co.

Journal articles:

• Berlinck, R. 2011. The academic plagiarism and its punishments – a review.

Brazilian Journal of Pharmacognosy. 21(3): 365-372. Retrieved from
https://www.scielo.br/j/rbfar/a/NSKmtjc7cjJ98WQ5Lm7LTdv/?lang=en&format=p
df [Accessed on 2 November 2022].

• Mahabeer, P & Pirtheepal T. 2019. Assessment, plagiarism and its effect on

academic integrity: Experiences of academics at a university in South Africa.
South African Journal of Science. 115: 1-8. Retrieved from
http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0038-
23532019000600004 [Accessed on 2 November 2022].

• Swanepoel, N & Van Deventer E. 2012. The need for a legal writing course in the
South African LLB curriculum. Obiter. 33(1): 121-134. Retrieved from
https://obiter.mandela.ac.za/article/view/12184 [Accessed 2 November 2022].

• Van der Merwe, S. 2014. Cautioning the careless writer: The importance of
accurate and ethical legal thinking 39(2): 23-52

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Online sources:
• University of Oxford [website]. Plagiarism. Retrieved from
https://www.ox.ac.uk/students/academic/guidance/skills/plagiarism#:~:text=Plagi
arism%20is%20presenting%20someone%20else's,is%20covered%20under%20
this%20definition. [Accessed 30 October 2022].

• MindTools [website]. Paraphrasing and summarising: Summing up key ideas in

your own words. Retrieved from
https://www.mindtools.com/pages/article/paraphrasing-summarizing.htm
[Accessed 30 October 2022].

• Colostate [website]. Paraphrasing: The Author's Thoughts in your own words.

Retrieved from
https://wac.colostate.edu/docs/books/informedwriter/chapter3.pdf [Accessed 2
November 2022].

• California State University, Northridge [website]. Using the IRAC structure in

writing exam answers. Retrieved from
https://www.csun.edu/sites/default/files/IRAC%20ANALYSIS_Saunders.pdf
[Accessed on 2 November 2022]

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