I prefer italics in legal writing. Not only in citations, but in all places where you might otherwise underline--for emphasis, for headings. I consider underlining to be an outdated typographic convention necessitated by typewriters.

The Bluebook perpetuates underlining in citations by giving all examples of citations in practitioner documents with underlining, not italics. Many lawyers use underlining instead of italics for citations. And some legal-writing teachers tell their students to use underlining instead of italics for citations.

Why?

What are the advantages of underlining over italics for legal citations? Care to comment?



Wayne Schiess
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
 

I was invited to a Young Authors Conference at an elementary school. It was a big deal to me because they have children's book authors, poets, songwriters, journalists, and screenwriters--the people we typically think of as writers. So I was flattered to be asked because, although all lawyers know that lawyers do a lot of writing, some people might not know that. Plus I've written 4 books, and I was gratified to see that the organizers knew that. Of course, the lead organizer is a friend, and I told her I had written 4 books, so . . .

Anyway, I told the students in my two sessions about the 3 types of legal writing lawyers do: explanation, persuasion, and rules. Then we tried to write a law about "no cars in the park," with a statement of the law's purpose, the text of the law, and a statement of the consequences. I thought it went very well, and today I received thank-you notes, which, of course, they were required to write. Still, some of them are just great. You might enjoy some excerpts.

Thank you for teaching me about lawyer stuff. Probably I might become a lawyer after I retire from making movies.

Thank you Wayne Schiess. It was cool listening to how you wrote laws. Thank you. P.S. Are you going to be here next year?

I would like to thank you for all the work you gave us. Now I feel more smart.

Young Authors Conference was sooooo much fun doing it with you. I liked it a lot. Thank you for doing so much. You were funny. I liked you a lot. I enjoyed it a lot.

And my favorite:

Thank you for teaching me about legal writing and about laws and what they do. P.S. Thank you for coming, and it was not boring.

Jim McElhaney has for many years given great advice on litigation in the ABA Journal. In the January 2010 issue, he recommends against using the following words in examining a witness. I'm against the same words, for the same reasons, in legal writing:

Prior and subsequent: "Before" and "after" are perfectly good words. Use them instead.

Previous: Worse than "prior."

Contemporaneously: Worse than "previous." "At the same time" is understood instantly.

Have occasion to: Needless clutter that often follows "did you . . . ?" Don't use it.

With respect to: An awkward way to say "about" or "concerning."

. . .

Initiate: "Start" is a perfectly good word. Use it instead.

. . .

Observe and perceive: "See" and "hear" almost always do a better job.

. . .

Indicate: "Show" and "tell" are better words. Use one of them instead.

Relate: Too fancy. "Tell" does a much better job.

Jim McElhaney, The Power of Plain Talk, 96 ABA Journal 22, 23 (January 2010).



Wayne Schiess
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
 

A reader asks:

Is it appropriate to raise new facts in an argument section (with citation to the record) that you did not cite in the Statement of Facts?  Sometimes, facts that I want to raise in the argument don't fit well within the Statement of Facts. They either make the Statement of Facts long and clumsy or just seem out of place / distract from the narrative but are useful in the context of the argument.

I hope practitioners will chime in with comments, but I can tell you that the stock answer for my first-year brief-writing course is no. Don't mention a fact for the first time in the argument. Any fact you mention in the argument should have been mentioned first in the facts section.

Other opinions?

A commenter writes:

I think the UCC provision is perfectly clear. This made-up distinction between which and that is a lie and doesn't really exist. If I recall correctly, the British use which and that interchangeably.

But I say that although failing to distinguish between that and which rarely results in genuine ambiguity, it can create ambiguity and occasionally does. So it's worth observing the distinction. For example:

• A new body of water law was needed in the western states which relied on irrigation for farming.

What does this mean?

a. New water law was needed in the western states--all of whom rely on irrigation for farming.
b. New water law was needed only in those western states relying on irrigation for farming.

To me, it is a genuine ambiguity, and it would disappear if the writer could distinguish between that and which. Like this:

a. A new body of water law was needed in the western states, which relied on irrigation for farming.
b. A new body of water law was needed in the western states that relied on irrigation for farming.

That's my position. The examples are from Douglas Laycock, That and Which, 2 Scribes Journal of Legal Writing 37 (1991).

Wayne Schiess
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
 

My son's 3rd-grade teacher thinks it's okay to begin sentences with "but." I saw it on  poster in her room and in a student-written example she handed out.

Another son's 6th-grade teacher requires him to include a full complement of serial commas: a, b, and c. My son was tested on it today. I saw the review sheet and the teaching materials.

What gives? Where is it that writers are learning that you can't begin sentences with "but" and that you don't need a comma before the conjunction in a series?

An astute reader points out a concern in UCC section 2-714, which, he says "I've been staring at for the better part of a day now." He writes:

This is from UCC 2-714:

Where the buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.

Excuse me, but I think the drafters intended "is reasonable" to restrict "any manner," as in:

Where the buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner that is reasonable.

Or even better:

Where the buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any reasonable manner.

Wayne Schiess
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
 

Ray Ward at the (new) legal writer has some good advice for brief writers:

• Before you write another long, convoluted, one-sentence issue statement, check the applicable procedural rules to see whether you’re required to do that.

Read his entire post here. Thank you, Ray.



Wayne Schiess
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
 

Each of these is the first sentence of a statement of facts in a brief. I think they are more compelling and stage-setting than statements that begin with dates.

Jack Ingram married for the first time in 1974 to Mary Gonzalez. . . .

CollecTech engages in the business of purchasing charged-off consumer debts, including telecommunications debts, and enforcing the debts against the consumers. . . .

Since Mindy Riggins' husband died about nine months ago, the children, ten year-old Billie and eight year-old Ty, have been living with their aunt and uncle. . . .

Ellen Raskin was terminated one month after reporting an alleged forgery to the Boise Police Department and the Ada County District Attorney's office. . . .

The court must decide if testimony concerning lost or destroyed evidence that is impeaching or potentially exculpatory should be excluded to protect defendants’ due process rights. . . .

Fred Smokey allegedly assaulted a victim while within the Davy Crockett National Forest. . . .

Respondent, Jennifer Hardison, is in possession of drawings rendered by John Ellis Blakely in 1934 for a proposed renovation to the Galveston County courthouse. . . .

Ted Tanaka is a truck driver and heavy equipment operator who specializes in operating a front-end loader, a highly complex piece of equipment. . . .

C.J. Tyne was four years old when his biological mother, Lena Renton, gave him to her sister Melinda, asking Melinda to 'adopt C.J.' . . .

On a trip to Las Vegas in 2005, Ms. Pixie McAllister met Mr. Dexter Pollux. . . .



Wayne Schiess
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Each one of these excerpts is the first paragraph of a statement of facts in a brief. What do they have in common?

1. At approximately 10 p.m. on January 10, 2007, Plaintiff Jane Skinner and her boyfriend, Adrian Vasquez, went to room 101 at the Deluxe Inn in El Paso, Texas, to visit their friend, Fred Wright, who was a paying guest of the motel. . . .


2. On June 21, 1998, Defendant Alan Bodily, traveling at about 80 miles per hour on Highway 101 in Emmett, Idaho, crashed into Plaintiff Ella Francis. . . .


3. On June 25, 2000, the Government served Gerardo Colangelo, a Legal Permanent Resident of the United States, with a “Notice to Appear” in removal proceedings brought under section 240 of the Immigration and Naturalization Act. . . .


4. In the early morning of February 18, 2005, Plaintiff, Richard Lester, alleges that he incurred personal injuries when he was throwing a railroad switch at the Plantsman Refining Company facility. . . .


5. On June 24, 2002, Plaintiff originally filed this malpractice action against TCA Health Services of Indiana, Inc. and Elizabeth Randall, D.O. for care and treatment he received at Hoosier Medical Center. . . .


6. On March 12, 2002, Willie Webb attended a public meeting of the Lewis City Council. Webb is a community activist and a journalist who often attends meetings and speaks on matters pertaining to the plight of the homeless. . . .


7. By way of background, on the 31st day of January, 2007, Rene Stepanik (Plaintiff/Appellant) was staying at a hotel in the city of Westin. While at the hotel, she was approached by Hays County Deputy Cort Williams. . . .


8. In the late evening of September 24th, 1999, June Besel’s home was stormed by a tactical team of law enforcement officers made up of different State and Federal Agencies. . . .


9. On December 23, 2005, the Seattle City Council enacted Ordinance 22 of 2007 (the “Ordinance”). It became effective in the City on December 30, 2005. The Ordinance provided for an 8-foot personal bubble zone. . . .


10. On June 25, 2007, the Board adopted two rules, which are contained in the Addendum for ease of reference. The first rule amended the Admin. Code § 26.095, which specifies the professional responsibilities of realtors. . . .

They all begin with a date--a date that is not legally relevant to the issues in the brief. Why?


Wayne Schiess
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