One of my students wrote this entertaining essay:

I majored in Business Administration at the University of North Carolina. Before entering law school, my only training in writing for the professional world came from a class called Management Communication, required of all UNC business students. In that class, we were coached using a variety of business-school-beloved acronyms and drilled in the ways of the corporate-writing world until we were as close to perfection as three credit hours and one semester of instruction would allow.

My professor for that class, Dr. Patricia Harms, was an exceptional communicator. She both spoke and wrote very well, and she consistently delivered information in an interesting manner. She also impressed upon us the importance of effective communication-explaining that the end goal of all communication is to impart pertinent information from speaker to audience, and that our highest duty should be to facilitate that transfer. If our class had had a mantra, it would have been, “Be clear. Be concise. Always consider your audience.”

As I began to read the material required for my law school classes, I thought back to what I had learned about writing in business school. I started to think longingly of the clear prose and the frank tone of the memos; I pined for the tell-it-to-me-straight attitude of the case studies; I believe I even yearned for the clarity of a well-constructed chart. Perhaps most of all, I missed the wonderful speed at which I used to be able to read the documents assigned for class. As a first-year law student, I found myself slogging through some of the most convoluted sentences I had ever seen-trying to hold multiple subjunctive clauses in my head, backtracking to find antecedents, performing mental contortions to work out the meaning of phrases like, “not antithetical to the dissent’s argument”-and all without a cheery graphic or even a friendly bullet point in sight! What kind of written world had I entered? Where, oh where, was the consideration for the reader?

For a while, I nurtured hope that I might get used to legal writing and no longer mind the effort required to wade my way through it. But having completed my first year of law school, I still feel most of the same frustration. Although I enjoyed our class discussion that cited inertia and ego as reasons for the persistence of these problems, my frustration is not relieved. These are not good enough excuses.

Of course, I acknowledge that some of the wordiness comes from the need to be accurate and thorough, but I believe that much of the verbosity in legal writing is unnecessary. I also feel a sense of incredulity that the legal profession, a service industry, has gotten away with writing so bewilderingly for so long. Take a lease agreement, for example: how can this profession draft a contract that is so confusing and out-of-touch with everyday English that I, even as a burgeoning law student, must grapple with phrases, re-read paragraphs, and generally wrestle with the meaning of the contract before I feel assured that I know what I am signing? I find such legal drafting maddening, and I hope never to inflict the same aggravation on others.

I should probably write Professor Harms (in a clear and concise manner, using an appropriate font, and incorporating a healthy dose of white space) to thank her for laying such a solid foundation for my professional writing career. On second thought, perhaps not. The frustration I feel with legal writing is, after all, largely her fault.

A commenter asks:

• Why don't legal writers use the hyphen [for phrasal adjectives]? I would say 90% of legal writers do not use it.

I have a theory with two supporting reasons. The theory is that they don't know any better. Here are the two supporting reasons:

1. Most people, lawyers included, get too little writing training in high school, college, and law school. If I had received strong, intense writing training in high school and college, I might have known about the phrasal-adjective hyphen sooner.
2. Lawyers are not good at consulting writing sources. There are many style guides out there, and there are even several legal-writing guides out there. All the style guides, legal and nonlegal, tell you to hyphenate phrasal adjectives. But too few lawyers have them and consult them.

• This raises the question why. Why do we not consult writing sources enough. We're too busy? We're ignorant of our own writing deficiencies? We're overconfident about our writing knowledge? Yes.
  

Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
 

Part 6: Punctuation
Part 6a: Hyphenating phrasal adjectives

Professional writers hyphenate adjectives that jointly modify a noun. The practice is not as common in legal writing as it should be, given that lawyers are professional writers. Generally, omitting the hyphen from a phrasal adjective will only sometimes cause confusion, but including it will never cause confusion.
For example, these phrases, if not hyphenated, will rarely cause confusion for a lawyer. Still, better writers use the hyphen.

Adequate
business judgment rule
legal writing course
toxic tort litigation

Better
business-judgment rule
legal-writing course
toxic-tort litigation

More examples. Again, better writers use the hyphen.

Adequate
court made rule
brief like mediation statement
corporate transaction document

Better
court-made rule
brief-like mediation statement
corporate-transaction document


Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
 

If you read the comments, you'll learn that using a party's first name (given name) in a court document is entirely appropriate when the person is a minor or when there are multiple persons with the same last name (surname).

Thank you to all those who commented.

A commenter has asked if using a person's given name is too informal in a litigation document.

If you're not using a party appellation (Plaintiff, Movant, Appellant, etc.), using the surname is a good choice. Most lawyers also omit Mr., Miss, Mrs., and Ms.

But if there are two people with the same last name, and if you do not need to keep anyone's identity confidential, I believe given names are appropriate.

Any practicing lawyers care to give an opinion?


Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
 

Part 5: Defined terms, initials, acronyms

Imagine that you are writing a document and that you'll be using the following names:

The Texas Seed Arbitration Act
Austin National Bank
Farm Enterprises Service Company
Roger T. Howard
Leticia Howard

The traditional conventions of legal writing would have you write an opening paragraph like this:

This lawsuit was initiated by Roger T. Howard (hereinafter "Howard") and Leticia Howard (hereinafter "Leticia" and, together with Howard, the "Plaintiffs” or “Howards") against Austin National Bank (hereinafter "ANB") and Farm Enterprises Service Company (hereinafter "FESCO") for injunctive relief under the Texas Seed Arbitration Act (hereinafter “TSAA").

Howard and Leticia assert that FESCO violated the provisions of the TSAA when FESCO refused to replace allegedly defective seed. Plaintiffs also assert that FESCO's lender, ANB, pressured FESCO to refuse to replace the seed, and the Howards have asserted claims against ANB as well.

We've all seen writing like this. I think it's poor. Here's my advice.

1. An opening paragraph cluttered with distracting defined terms is a poor way to begin any document.
2. You do not need to use the word "hereinafter" to create defined terms. Every expert who has commented on the subject agrees.
3. You probably do not need the quotation marks. This is a fine point, but professional writing outside the law does not require quotation marks.
   
4. Creating a defined term with alternatives, like this: ("Plaintiffs" or "Howards") is lazy. You are saying to your reader "I won't be careful enough to be consistent. I might use either one."
5. You may not need to define terms at all. Specifically:
   • If there is only one person named Howard in the document, give the full name on first reference and shorten to Howard on later references without defining it.
   • If there are multiple Howards in the document, give full names on first reference and use first names on later references without defining them.
   • If there is only one statutory act in the document, give its full name on first reference and shorten it to "Act" in later references.
   • If there are multiple statutory acts in the document, you can shorten to readable, pronounceable names, like Seed Act or Seed Arbitration Act without defining it.
     
   • Generally, don't invent your own initials. Use well-recognized initials (NCAA, CBS, etc.); otherwise, use words. When you use invented initials, you save yourself time, but you make the reader work harder.
   • Generally, don't invent acronyms. Use well-recognized acronyms (CERCLA, ERISA, etc.); otherwise, use words. What's so wrong with calling something by its full name?
     

Suggested revision:

This lawsuit was initiated by Roger T. Howard and Leticia Howard against Austin National Bank and Farm Enterprises Service Company for injunctive relief under the Texas Seed Arbitration Act.

Roger and Leticia assert that Farm Enterprises violated the provisions of the Act when it refused to replace allegedly defective seed. The Howards also assert that Farm Enterprises' lender, Austin National Bank, pressured Farm Enterprises to refuse to replace the seed, and the Howards have asserted claims against the bank as well.

Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
 

Passive voice

Do you know what the passive voice is? Many lawyers do not. Many believe it is any verb that is not "strong," or any form of the verb "be," or any past-tense verb. It is none of those, though all might be labeled "passive" in a general sense. It is a form of the verb "be" (be, am, is, are, was, were, being, been) and a past participle. If the verb works with "have," as in "have _____," (have walked, have written) then it is a past participle.

In the passive voice, the subject is not doing the action; the subject is being acted upon. So it is possible to leave the actor out of the sentence entirely. Thus, the passive voice presents two problems:

First, the normal reader expectation of actor/action/thing-acted-upon, which fits the expected English order of subject/verb/object, is subverted. Instead, it becomes thing-acted-upon/action/actor or, because you can leave out the actor, thing-acted-upon/action. In other words, sentences can be in typical order, like this one:

I sent the letter.

But with passive voice, they get out of typical, expected order, and end up like this:

The letter was sent [by me].

Second, the passive voice emphasizes the thing acted upon and obscures the actor. Of course, in legal writing you may want to obscure the actor, and you may want to emphasize the thing acted upon. For example, you may want to emphasize that the letter is being sent and de-emphasize who sent it. That's fine, as long as you do it intentionally and sparingly. But for most texts, better writers don't want to emphasize the thing that something was done to; they want to emphasize who did it. So better writers use the passive voice rarely.

The motion was filed, a hearing was held, and a ruling was issued.

Are you emphasizing these three items, the motion, hearing, and ruling, or avoiding naming the actor? If so, this sentence is fine. If not--

The district attorney filed the motion, both lawyers attended a hearing, and the judge issued a ruling.

Test yourself. What is the passive-voice construction here?

The test might have been easier for students if it had been designed to measure their memories.

Remember, the passive voice requires a "be" verb and a past participle. "Been easier" is not passive voice; "easier" is not a past participle. The passive-voice construction is "been designed." In the active voice:

The test might have been easier for students if the professor had designed it to measure their memories.

Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
 

Care in Proofreading

The original text had problems in these areas:

• Incorrect plurals
• Redundancy
• Incorrect verb forms
• Incorrect English usage (words)

I have placed these problems in a category I call "care in proofreading" because these are the kinds of writing problems you catch when carefully proofreading. Most of the time, a lawyer would recognize these as mistakes--if the lawyer sees them. But if the lawyer doesn't proofread carefully, the lawyer will miss them.

I have already confessed that I'm not a great proofreader, but here's my advice.

A professional approach to proofreading from an expert:

1. Read the entire document, or a good-sized chunk of a larger document, through once slowly, reading for overall content and meaning.
2. Read the document through even more slowly, this time aloud and correcting all errors you find.
3. Read the document a third time, silently or aloud, focusing especially on trouble spots.
4. Read the document backwards.
5. Skim the document at arm’s length.

Debra Hart May, Proofreading Plain and Simple 113-114 (Career Press 1997).

Based on advice from that book, here's a professional guide to the time spent preparing a legal document:

1. Prewriting (30%) Prewriting is identifying and refining your document’s purpose and your understanding of your reader’s needs, then organizing your initial ideas into a general game plan.
2. Writing (15%) Actually writing the document. To write effectively, work quickly, loosely following your game plan, seldom stopping to make changes.
3. Editing (50%) Editing is clarifying, strengthening, and condensing the communication you attempted at the writing stage.
4. Proofreading (5%) Proofreading is polishing the final draft, ensuring that no errors in communication, however small or seemingly insignificant, make it through to the intended reader.

Here are some good sources to consult when proofreading.

Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, And Style For The Legal Writer (2d ed. Aspen L. & Bus. 2005).

Black's Law Dictionary (Bryan A. Garner, ed., 8th ed., Thomson West 2004).

Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed., Oxford U. Press 1995).

Bryan A. Garner, The Redbook: A Manual on Legal Style (2d ed. Thomson West 2006).

C. Edward Good, A Grammar Book for You and I (Oops, Me) (Capital Books 2002).

Mary Barnard Ray & Jill J. Ramsfield,Legal Writing: Getting It Right and Getting It Written (4th ed., Thomson West 2005).


Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
 

Misplaced or dangling modifiers    

When a sentence begins with a dependent clause that modifies a noun, the noun it modifies should come immediately after the clause. If it does not, the clause "dangles" or is misplaced. Often, a misplaced or dangling modifier begins with a present participle ("ing" verb) and so is called a dangling participle.

Sometimes misplaced modifiers strike the reader as humorous because the modifying phrase is applied to a noun in a way that seems odd.

Odd

• Though not yet accepted by the scholarly community, I have nonetheless engaged in a thorough discussion of this theory.

What is not yet accepted by the scholarly community? The author (I) or the theory? The sentence literally says that the author is not accepted by the scholarly community. But I know the author of that sentence, and this person most certainly is accepted by the scholarly community.

The next two are better versions of the same idea.

Better

• Though not yet accepted by the scholarly community, this theory is one that I have nonetheless thoroughly discussed.

Better

• Though this theory is not yet accepted by the scholarly community, I have nonetheless thoroughly discussed it here.

Here is another example:

Odd

• Speaking forcefully and passionately to the jury, the case was won by defense attorney Juliet Anson.

This sentence literally says that the "case" was speaking forcefully and passionately.

Better

• Speaking forcefully and passionately to the jury, defense attorney Juliet Anson won the case.

When you write a dangling modifier, your readers will usually get the intended meaning. Even so, there are two problems: (1) the readers might not get it and will be lost, at least briefly, and (2) sophisticated readers--who recognize the misplaced modifier-- will think less of you as a writer.
 

Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
 

The original "transportation product liability" text (here) had several problems common in legal writing. Here's my list. I will comment on each item in a series of posts.

Dangling modifier
Lack of care in proofreading or lack of knowledge of the conventions of English style or lack of a reliable source to consult or lack of a willingness to consult a reliable source, specifically

• Plurals
• Redundancy
• Verb forms
• Usage

Unnecessary use of the passive voice
Distracting use of initials and acronyms
Punctuation mistakes

• Period with parentheses
• Serial comma
• Dash
• Hyphen

Use of typefaces for emphasis
Weak sentence and paragraph connecting
Abstraction


Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide