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Wayne Schiess's Legalwriting.net Blog is moving

2010-05-14T21:48:00Z

This blog is moving here:

http://blogs.utexas.edu/legalwriting/

Schiess's Legalwriting.net Blog is moving

2010-03-29T19:29:00Z

This blog is moving.

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Time constraints + money constraints = good-enough writing

2010-03-29T16:50:00Z

A commenter writes:

Why should all legal writing be done from scratch? If there is an existing memo or brief that addresses a partner's issue, why on earth should the client be expected to pay an associate to write one up from scratch?

Wayne says:

Agreed. I hope I've never suggested that all legal writing must be done from scratch. In fact, I've spent a lot of time writing and teaching about the things you must do to use forms and precedents wisely.

Commenter continues:

Not all legal writing needs to be good. Sometimes, it just needs to answer a question. If you can do that adequately in, say, 4 hours, why should the client pay for an extra two hours of your time to produce something that does the same thing?

Wayne says:

I reluctantly agree again. Sometimes, the time and money necessary to make poor writing good will not be tolerated by the client or the billing attorney. The solution, though, is not to accept poor writing, but to constantly work to produce good writing within the time and money limits you're given. It's hard work, but it can be done. Some advice here

________
Wayne Schiess
Author of Preparing Legal Documents Nonlawyers Can Read and Understand

Please note that throat-clearing phrases exist

2010-03-25T17:59:00Z

The beginning of a sentence is an important place. It’s often where you win or lose the reader’s attention and focus. Here is one weak way of beginning a sentence that legal writers usually ought to avoid.

Throat-clearing phrases

It should be noted that this sentence is just fine. Moreover, I would like to point out that there is nothing wrong with this sentence, either. It must be acknowledged that there is nothing wrong with beginning sentences with these phrases:

It should be noted that
It is important to remember that
It is evident that
It is interesting to note that
We would point out that

But grammarians call these “throat-clearing” phrases, and it’s not hard to see why. When you use one of these phrases, it’s as if you’re clearing your throat to get the listener’s attention. It’s a way of adding emphasis or of saying “Hey, listen up.”

But the near-universal advice is to avoid them. Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer 125-27 (2d ed. 2005). I call them “fluffy phrases,” and I recommend that you find a leaner, more direct way making your point. In most sentences, but not necessarily all of them, you’re better off beginning with the subject you’re writing about. Joseph M. Williams, Style: The Basics of Clarity and Grace 62 (2d ed. 2006).

The shorter sentence that begins with a real subject will usually have more force and clarity than the sentence that begins with a throat-clearing phrase.

_____
Wayne Schiess
Author of Preparing Legal Documents Nonlawyers Can Read and Understand

There are expletives

2010-03-25T17:48:00Z

Expletives

There is nothing wrong with this sentence. It is a good sentence. There is nothing wrong with beginning sentences with these phrases:

There is
There are
There were
It is
It was

But when you begin a sentence with one of these phrases, you’re using what grammarians call an “expletive.” No, it’s not a curse word; it’s a pronoun that is used to fill out a sentence. And it can be an enemy of a lean writing style. See Garner's Modern American Usage 811 (3d ed. 2009).

It’s easy to see why beginning a lot of sentences with expletives would weaken your writing. You’re using a pronoun that refers to--well, to nothing concrete in the sentence. Then you add a “be” verb, when we all know that strong, active verbs make for better writing.

So let’s avoid expletives. But we won’t make an inflexible rule against using them. Some sentences need to begin that way. Terri LeClercq, Guide to Legal Writing Style 55 (4th ed. 2007). We’ll simply remember, as we edit, to look out for expletives and revise as necessary to strengthen our writing.

_____
Wayne Schiess
Author of Preparing Legal Documents Nonlawyers Can Read and Understand

Start Strong--Motions

2010-03-19T00:33:00Z

Suppose you've prepared a motion, filed it, and shown up for the hearing. When you stand up, the first thing the judges asks is "What are we here on?"

You might wonder why the judge hadn't read your motion beforehand. A possible answer is that the judge was simply too busy. But in some courts, the answer may be that the court uses a rotating docket: you don't know who the judge will be, and the judge will not have read the motion beforehand. (This is the reality in the county where I live.)

And if the judge does look at your motion right there, on the bench, on a computer screen, this is what the judge will see:

[case style]

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Pratt Industries, defendant in the above-entitled and numbered cause, and files this its Motion for Summary Judgment, and in support thereof would respectfully show unto the court as follows:

* * *

The information in that opening paragraph tells the judge who the defendant is--already stated in the case style. It says that the defendant is moving for summary judgment--already obvious from the title. And it says that support for the motion follows--obvious to every judge.

The busy judge, hurriedly looking over your motion--on a screen, on the bench--deserves better. The judge deserves a strong introductory summary, perhaps followed by the key points in roadmap fashion.
The recommendation to begin a motion with an up-front summary is not new. I've written about this idea before:

Summaries Part 1
Summaries Part 2

But the recommendation is hard to implement. Maybe the habit of the traditional opener is hard to break. Maybe you fear changing the "form" motion you inherited from a senior trial lawyer. Or maybe you just aren't sure what to do.

Here's what I recommend: Say what you want, briefly, and then say or list why you should get it, in the same order in which you'll discuss those reasons in the body of the argument.

Here's a good example written by a real lawyer. (Names have been changed.)

Defendant Anderson Chemical's Motion for Summary Judgment

Summary
Anderson Chemical Co. asserts that there is no dispute as to a crucial, material fact about the plaintiff's knowledge and that Anderson is therefore entitled to judgment as a matter of law. Specifically, Plaintiff Reed Stout sued Anderson and others, alleging responsibility for an injury that Jones says occurred while he was operating a railroad switch on Anderson's property.

But Stout's answers in his deposition show he knew of and appreciated the potentially hazardous condition of the switch and reported this condition before the incident on April 1, 2008. Because Stout was aware of the potentially hazardous condition of the switch, this court should grant this Motion as a matter of law and dismiss Anderson from the suit.

Or how about this?

Defendants Adair and Tenet’s Motion for Summary Judgment

William Adair and Tenet Corporation move for summary judgment on the plaintiff's discriminations claim for two reasons:
They were never the plaintiff's employer under Texas law.
The plaintiff has not exhausted her administrative remedies.

These opening paragraphs give the busy, rotating judge at least a chance of understanding what you want. These openers also begin to persuade--inviting the judge to think clearly and favorably about your position. The judge and your client deserve that.

Changes for UT Law required, 1L legal writing course

2010-03-13T10:03:00Z

The faculty here at Texas has approved changes to the legal-writing program that will double the credits for the required courses and that will cut the student-faculty ratio in half. Credits will go from 2 to 4, and the student-faculty ratio will go from 100 to 1 to about 47-1. The change includes returning brief writing and oral advocacy to the required course.

Needless to say, I'm happy and excited. It’s been a long time coming.

What I wish I had known about legal writing--part 4

2010-03-12T15:46:00Z

4. I wish I had known about the best sources on good legal writing.

I did not own a book on legal writing until I quit practicing law and began teaching legal writing. How could that be? If I had studied journalism, I would’ve known about and acquired books on writing style. Likewise if I had studied English composition. But I finished law school and entered a writing profession without a single source on legal writing in my library. Sure, I read The Elements of Style by Strunk and White. I read On Writing Well by William Zinsser. But I read no books on legal writing.

Given what was available when I graduated from law school in 1989, I wish I’d had these sources:

The Texas Law Review Manual on Usage and Style
A Dictionary of Modern Legal Usage by Bryan A. Garner (now in its second edition)
How To Write Plain English: A Book For Lawyers And Consumers, by Rudolf Flesch

Somebody should’ve given me one of these for a graduation gift.

Ultimately, I simply wish I had taken the skill of legal writing more seriously. Students, you're forewarned.

________
Wayne Schiess, author of Preparing Legal Documents Nonlawyers Can Read and Understand

What I wish I had known about legal writing--part 3

2010-03-12T15:43:00Z

3. I wish I had known that time pressure would be a significant obstacle to good legal writing.

Practicing law is a busy, demanding profession. Many lawyers feel compelled or are compelled to take on more work than would be ideal. The heavy workload impinges on effective legal writing.

Let's take editing as an example. If your writing is less than expert, it might be because you don't know how to edit. It might be because you know how to edit, but you’re too lazy to edit. But most often it is probably because you don't have time to edit. Editing is what makes weak writing good and good writing great. But in a busy law practice, editing is often sacrificed.

________
Wayne Schiess, author of Preparing Legal Documents Nonlawyers Can Read and Understand

What I wish I had known about legal writing--part 2

2010-03-11T16:38:00Z

2. I wish I had known that becoming a good legal writer would take years.

I thought I was a good writer in college. I also thought the basic training I received in law school would enable me to write well in practice. I was wrong.

I just finished reading the book Outliers, by Malcolm Gladwell. In it he reports on a theory of developing expertise. The theory suggests that it takes 10,000 hours to develop expertise in a particular area. If the theory is right, it certainly applies to legal writing. So if you work 2000 hours per year, and you spend 1000 of those hours writing, becoming an expert legal writer would take you 10 years. That's a long time.

But it's not enough to just do the skill for 10,000 hours. You need to work at it--study, learn, and implement what you've learned. If you don’t study your craft--if you just write on auto-pilot--it will take you more than 10,000 hours. And if you write for fewer than 1000 hours per year, it will take you more than 10 years. It could take you 15 or 20. I wish I had been aware of that long haul.

As an aside to the law students and young lawyers reading this, may I say that I sometimes hear from senior attorneys that law students and young lawyers are ineffective legal writers. This bothers me because it is unrealistic to expect high-quality legal writing from novices who have spent far fewer than 10,000 hours practicing legal writing. I believe these often misguided complaints arise from two causes: First, some complainers are not expert legal writers themselves and are not in a position to fully judge expert legal writing. Second, some complainers have forgotten how ineffective and inexpert their own legal writing was when they were novices. Hang in there, young lawyers.

________
Wayne Schiess, author of Preparing Legal Documents Nonlawyers Can Read and Understand

What I wish I had known about legal writing--part 1

2010-03-10T15:46:00Z

1. I wish I had known that law was a writing profession.

I came to law school thinking law practice was an oral profession. I pictured myself in court, making an argument to the jury or to the judge. I pictured myself seated across the table from another lawyer, negotiating a deal. I pictured myself in my office, meeting with a client to give advice. Sure, lawyers do those things. But mostly, they write.

Lawyers are professional writers. They get paid to produce quality written work that is subjected to serious scrutiny. I wish I had known that.

________
Wayne Schiess, author of Preparing Legal Documents Nonlawyers Can Read and Understand

More information on the UT Law legal-writing courses

2010-03-09T18:24:00Z

In response to an editorial written by some first-year law students here, I wrote the following explanation.

It is true that the University of Texas School of Law has a first-year legal-writing curriculum without brief writing. When the law school administration removed credits from the required course five years ago, brief writing was lost. Needless to say, the legal-writing faculty thought it was a mistake. So we’ve been teaching a brief-writing elective that only some 1Ls can get into. We're optimistic that brief writing will return to the required first-year curriculum. Indeed, a proposal to do that comes before the faculty this week.

Here's some other information I did not provide. Because of the changed work load that resulted when the administration removed credits from the required first-year course, we all began teaching upper-division writing courses in addition to the first-year brief-writing elective. We now teach 15-18 upper-division courses during fall and spring and 4 more during summer. Students love them; they are always over-subscribed.

Here's a list:

Advanced Legal Writing
Advanced Legal Writing: Transactional Drafting
Advanced Legal Writing with Texas Research
Advanced Legal Writing: for TAs in the Writing Program
Writing for Litigation
Judicial Clerkship Writing: Trial Level

We're doing our best to keep those courses in place even after brief writing comes back into the required first-year curriculum.

Italics or underlining?

2010-02-03T14:38:00Z

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

A visit to Young Authors Conference

2010-01-27T12:14:00Z

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.

Plain-language advice from "McElhaney on Litigation"

2010-01-06T19:31:00Z

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.

Statment of facts--all in?

2009-12-16T16:25:00Z

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?

Genuine ambiguity cause by a that-which error

2009-12-16T16:11:00Z

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).

What they're teaching my kids about punctuation and grammar

2009-12-16T16:06:00Z

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?

that-which errors in the UCC?

2009-12-16T13:54:00Z

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.

Single-sentence issue statements--comments from a real lawyer

2009-11-20T13:22:00Z

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.