Monthly Archives: September 2010

Schiess’s biggest pet peeves: analytical writing

Here are my biggest pet peeves in analytical legal writing—primarily memos and briefs. I’ll have another list for legal drafting. This isn’t a list of the biggest problems in legal writing, just the ones that bug me.

Abstraction

  • Three rules for legal writing: specify, specify, specify.

Lack of up-front summary or preview

  • I’m busy and impatient. Don’t start with background—tell the point, then give the background.

Double-spacing

  • No, it doesn’t make text easier to read. No, it isn’t good use of white space. Please, for the love of eyes and trees, stop double spacing.

All-CAPS

  • Banished from my writing many years ago, even for titles and headings. ALL-CAPS is for shouting in email and for license plates.

Run-on sentences with however

  • You seem to know how to write a sentence, however, you do not seem to know how to punctuate it.

Over-deletion of that

  • Mr. Lee admitted being a minority . . . made him sensitive to comments about race.

Over-creation of defined names

  • (the “over-defining syndrome”)

Unnecessary dates

  • On September 30, 2010 . . .

Why the single-sentence issue statement?

A commenter asks:

[In writing questions presented and issue statements] is there any historical or legal reason why (some) lawyers try to cram everything into one sentence? I have noticed that this unfortunate custom prevails also among lawyers from other, non-English-speaking jurisdictions, which appears to indicate that there must be some method to this this madness.

Wayne says:

I was taught to do it that way in law school, and I taught my students to do it that way for several years. It is also a common convention in legal writing today.

So we were taught that way because it was a convention, and it was a convention because we were taught that way.

But why?

A tough criminal jury instruction

From an opinion of the Texas Court of Criminal Appeals, I quote the following instruction used in a criminal case in Texas:

“You are instructed that any evidence which, in your opinion, mitigates against the imposition of the Death Penalty, including any aspect of the defendant’s reputation, character, or record, or any of the circumstances of the commission of the offense which have been admitted in evidence before you, may be sufficient to cause you to have a reasonable doubt as to whether or not the true answer to any of the special issues is ‘yes’; and in the event such evidence does so cause you to have such a reasonable doubt, you should answer the issue ‘no.’”

That’s tough to follow, isn’t it?

For what its worth, here’s some data:

  • 96 words per sentence
  • 23 Flesch Reading Ease Score (out of 100; 60 is plain)
  • 22 Flesch-Kincaid Grade Level (10 years beyond high school)

But it would be tough to revise, too. Revising jury instructions isn’t easy, and revising criminal jury instructions can be really tough. Or so I’ve been told by a law professor who was working on the committee to redraft California’s jury instructions.

Long, single-sentence issue statement

From the appellant’s brief in a criminal matter:

Did the Court of Appeals err in holding that the prosecution discharged its affirmative burden of establishing that the appellant’s confession was not the product of his illegal arrest and detention and, therefore, was admissible against him, by concluding that the act of police interrogators in confronting the appellant with the inculpatory admissions of an alleged co-defendant prior to eliciting appellant’s confession, constituted an adequate “intervening event” which supposedly broke the causal chain between his illegal arrest and detention rendering his confession “a product of a free will,” notwithstanding the fact, that the record irrefutably demonstrates that the appellant was arrested illegally, without the benefit of a warrant issued by a neutral and detached magistrate, in violation of Chapter 14 of the Code of Criminal Procedure, was thereafter interrogated while illegally detained, was, at all times during his 22 hours at the homicide division, in the presence and under the control of the police, was never taken to a magistrate, never spoke with a lawyer and was mislead by the interrogators about what he was actually being charged with?

A single sentence of 179 words. We can do better than that, can’t we?

My try:

Smith was under police control at the station for 22 hours. Police never took him before a magistrate or let him speak with a lawyer, and they misled him about the charge against him. They then arrested him without a warrant—which the prosecution admits was illegal. But the prosecution asserts that when the police confronted Smith with inculpatory admissions of an alleged co-defendant, that intervening event broke the causal chain between his illegal arrest and his confession.

  • Was the court of appeals correct that the prosecution carried its burden of proving this break in the causal chain, rendering Smith’s confession a product of his free will?

I gave it a shot. Thoughts?

Ideas to reduce paper would make briefs more readable, too.

In her recent article, Conserving the Canvas, Professor Ruth Anne Robbins makes the following recommendations aimed at reducing paper use in legal briefs. The recommendations are equally appropriate for improving the readability of legal briefs:

  1. allow and encourage or even require double-sided printing;
  2. move to 1.5 line spacing rather than double spacing; and
  3. adopt court rules that limit documents by word counts while simultaneously eliminating font and font-size requirements.

Ruth Anne Robbins, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies, 7 J. ALWD 193, 194 (2010).

The full article is here.