Author Archives: Wayne

About Wayne

Wayne Schiess teaches basic legal writing at the University of Texas School of Law and also focuses on legal drafting, persuasion, and plain English. He is a frequent CLE and seminar speaker on those subjects and has written dozens of articles on practical legal-writing skills, plus four books. He graduated from Cornell Law School, practiced law for three years at the Texas firm of Baker Botts, and in 1992 joined the faculty at Texas. In 2012 and 2015, he was named the law school's legal-writing teacher of the year. In 2011, the Texas Pattern Jury Charges Plain Language Project, for which he was the drafting consultant, was named a finalist for a ClearMark Award by the Center for Plain Language. In 2009, five of his short articles were featured in the Scribes Journal of Legal Writing "Best of" series. In 2007, this legal-writing blog (LEGIBLE) was selected for the ABA Journal Blawg 100: "The best Websites by lawyers for lawyers."

And you think legal writing is bad?

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

Operations within the Sector Franchise Fund were impacted by the June 20, 2018, AS-PTT Memorandum, Customer Approval Process for the Sector Business Center, directing AOD to divest external customers, as well as the review and denial of particular requests for assisted acquisition support from external customers including the planned divestiture of AOD’s 5 largest customers: TARCA, CARCA, TICOM, VCDo, and DOTS&R.

In response to the AS-PTT direction and review process, AOD did not conduct its usual business development efforts, existing customers were confused by the approval process and lost confidence in AOD’s ability to continue to perform assisted acquisition support for external customers, AOD’s hiring freeze led to 40 departures which have not been backfilled impacting the ability to seek and perform new work and certain existing customers did not send additional work to AOD.

Overall, FY 2018 AOD actions decreased 9% and obligations decreased 22.5% over FY 2017 and Quarter 3 and 4 revenue within the EFFL represented a $16.8M decrease in FY 2018 compared to FY 2017. Disapproval of requested acquisition support led to a direct loss of $5.1-$5.9M (Tab A) in revenue for AOD. Additional revenue was likely lost due to existing and potential customers not reaching out to AOD for support as rumors that AOD would no longer be servicing external customers circulated in the shared service community. As a result, AOD generated less revenue than projected, expenses slightly exceeded revenue, the EFFL Annual Reserve was funded below optimal levels and AOD did not generate enough revenue to contribute to the Sector Franchise Fund Capital Improvement Reserve.

  • Average sentence length = 43 words
  • Flesch Reading Ease Score = 0.0 (scale of 0-100 with 60 being “plain”)
  • Flesch-Kincaid Grade Level = 24 (high school plus 12 years of education)
My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

The passive voice … is used by lawyers.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

The passive voice is frequently censured and widely condemned. Why is so much bad press received by the passive voice? Oops. Why does the passive voice receive so much bad press?

Lawyers overuse it, and its overuse makes for wordy, dull writing.

Quick review: The passive voice relies on a be verb (most commonly was, were, and been) plus a past-tense verb (technically past participle). All the following are in the passive voice (be verb and past-tense verb in italics):

  • Mistakes were made.
  • The contract was signed.
  • The DNA has been collected.

By the way, a sentence like The statute is applicable might be undesirable (I’d prefer The statute applies) but it’s not in the passive voice. Yes, it has a be verb (is), but applicable isn’t a verb.

In the examples, we can see a key feature of the passive voice: The doer of the verb is not the subject of the sentence. In fact, the doer of the verb is missing from the sentence entirely. Mistakes were made. Who made them? We don’t know. We can put the doer of the verb into a passive-voice sentence, but we have to attach the doer with a prepositional phrase at the end:

  • Mistakes were made by my staff.
  • The contract was signed by Christina Duran.
  • The DNA has been collected by Officer Kiser.

In the active voice, these sentences would be more vigorous and more concise:

  • My staff made mistakes.
  • Christina Duran signed the contract.
  • Officer Kiser has collected the DNA.

Now we can explain the bad press. When we overuse the passive voice in legal writing, we produce dull prose two ways: We rob the writing of doers, of actors, of action. Stuff just happens—no one does it. Or we name the doers, but they’re tacked on at the end—something was done by someone. That’s wordy.

Hiding the doer and producing wordy prose can be bad things in legal writing, and the experts agree:

“The passive voice results in a wordier sentence … and often obscures the actor.”1

“The passive voice creates two problems. It uses more words than active voice, and it risks creating ambiguity.”2

“Generally, prefer the active voice over the passive voice for several reasons: It is more concise.… It uses a more vigorous verb.”3

But we don’t forbid all passive-voice constructions; the passive voice has legitimate uses, and here are three.

  1. The doer of the action is unknown or irrelevant. The police were notified. We don’t know or care who notified the police; we’re just saying they were notified.
  2. The focus is on the recipient of the action, and the doer of the action is unimportant. Treyco’s account was frozen, not Mercury’s account. This sentence focuses on which account was frozen, not on who did the freezing.
  3. The appearance of responsibility is being avoided. The emails have been deleted. This sentence hides the one who did the deleting. Avoiding the appearance of responsibility is occasionally useful in legal writing. But if you use the passive voice to avoid responsibility a lot, your readers will figure it out.

So the passive voice isn’t wrong; it has legitimate uses in legal writing. It is overused by lawyers (passive). Lawyers overuse it (active). So when you edit your writing, check for passive-voice constructions—maybe do a search for was and were. When you spot the passive voice, ask yourself, “Do I need the passive voice here?” If you don’t, the active voice will be more vigorous and more concise.

Wayne Schiess’s books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

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1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 659 (3d ed. 2011).

2. Richard C. Wydick & Amy E. Sloan, Plain English for Lawyers 29 (6th ed. 2019).

3. Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 514-15 (5th ed. 2010).

When Verbs Become Nouns

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It

In legal writing, we often overuse nominalizations.

Some legal writing contains nouns that could have been verbs. These nouns wanted to be verbs—they really did. But lawyerly habits and the default patterns of legal writing often tempt us to use the noun form instead.

Nouns that could’ve been verbs are called nominalizations. (That’s a big word, and experts have coined other, catchier names: hidden verbs, buried verbs, zombie nouns.) Here’s what they look like:

  • The prosecutor’s expectation was that defense counsel would make an objection.

That sentence contains two nominalizations: expectation and objection. Let’s revise the sentence by turning those nouns back into verbs:

  • The prosecutor expected defense counsel to object.

This example shows two benefits of using verbs in place of nouns.

  1. By using verbs instead of nouns, you save words: this example went from 11 words to 7. Sometimes when you shorten a sentence, you lose some meaning or some key content, but not here. Fixing nominalizations almost always allows you to retain the meaning but use fewer words. That’s concision.
  2. By using verbs instead of nouns, you invigorate the text: the verbs in the original were was and make. Nothing wrong with those verbs, of course, but they’re not forceful or vigorous. The revision uses stronger verbs: expect and object.

Nominalizations aren’t wrong or grammatically incorrect, but they’re overused in legal writing. As a result, legal-writing experts often single them out for comment:

“Watch for and replace nouns created from stronger verbs.”1

“Use base verbs, not nominalizations.”2

“Nominalizing is one of the most serious afflictions of legal prose, draining a sentence of vitality.”3

“Nominalizations are large and clunky, and they serve only to confuse the reader by weighing down sentences.”4

Here are some of the most common nominalizations in legal writing. Think of the verb form you could use instead:

be in violation of
bring suit against
come to a resolution
conduct an analysis
enter into a settlement
give notice to
make a payment
make a recommendation
make an argument
perform an examination
place emphasis on
provide an explanation
take into consideration

Why do legal writers over-use nominalizations? I have two theories.

First, nominalizations are typically longer, bigger words, and they sound formal. Sometimes we legal writers want to sound formal, serious, or even heavy. Although there’s nothing wrong with sounding formal, a less-formal tone is usually more reader-friendly.

Second, we often think conceptually—we think of things, of nouns. Returning to our first example, if I’m the writer, I’m thinking about an expectation, and the expectation is about an objection. So I naturally end up writing a sentence with the nouns expectation and objection. Again, there’s nothing wrong with thinking of concepts and then writing those concepts down. But on the edit, check for nominalizations and see if you can shorten and invigorate your prose.

Here’s one more example. Spot the two nominalizations in this sentence:

  • The insurer had no authorization to make a distinction between existing patients and new patients.

The two nominalizations are authorization and distinction. By using their verb forms instead, we cut the weak verbs had and make, we enliven the text by focusing on actions rather than things, and we shorten it from 15 words to 12:

  • The insurer was not authorized to distinguish existing patients from new patients.

So when you edit, look for nominalizations—nouns that could have been verbs—and when you can, return them to their livelier form.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It

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1. Terri LeClercq, Guide to Legal Writing Style 58 (4th ed. 2007).
2. Richard Wydick, Plain English for Lawyers 23 (5th ed. 2006).
3. Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well 129 (2d ed. 2002).
4. Charles N. Insler, Kill Nominalizations, Breathe Life Back into Briefs, 59 No. 10 DRI For Def. 99 (Oct. 2017).

Reducing legal-writing clutter with (cleaned up)

Have you heard of (cleaned up)—the daring new explanatory parenthetical?

Suppose you’re writing a piece of legal analysis and you need to quote a case that’s quoting another case. And suppose you choose to omit some words and alter the original a bit. Under Bluebook rules, you’d cite the case you’re quoting as well as the underlying source, and you’d show every alteration and omission. Those are the rules. So you might end up with something like this:

The Court has previously observed that “[t]he failure to affirmatively establish the fact sought does not ‘prevent the cross-examination from having . . . probative value in regard to the witness’s credibility.’” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (quoting Cawdery v. State, 583 S.W.2d 705, 710 (Tex. Crim. App. 1979)).

But what if you could delete the brackets, the ellipses, and the quotation within a quotation? What if you could omit the underlying source and the parenthetical it’s embedded in? Would that be okay, as long as you told the reader you “cleaned up” what would otherwise be a messy quotation? If you did, it might look like this:

The Court has previously observed that “the failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard to the witness’s credibility.” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (cleaned up).

That cleaner, neater version was the goal of attorney Jack Metzler when he invented the “cleaned up” explanatory parenthetical in 2017. Metzler has also written a law-review article about (cleaned up). The idea was to make quotations easier to read and to reduce words and bibliographic clutter. So this original—

Above all, “[c]ourts presume that the Legislature ‘ “understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.” ’ ” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968) (quoting Texas Nat’l Guard Armory Bd. v. McCraw, 126 S.W.2d 627, 634 (Tex. 1939))).

would look like this—

Above all, “courts presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems manifest by experience, and that its discriminations are based on adequate grounds.” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (cleaned up).

Metzler’s idea was a hit. Lawyers and judges have started using (cleaned up), and it has appeared in dozens of appellate briefs and judicial opinions in Texas, as well as in other state courts and federal courts. Metzler’s rules for (cleaned up) appeared in the Journal of Appellate Practice and Process, and they’re quoted in full at the bottom of this post. But here’s a quick summary: Using (cleaned up) means that in quoting, the author—

  • has removed extraneous, non-substantive material such as brackets, quotation marks, ellipses, footnote numbers, and internal citations,
  • has changed capitalization without indicating the changes, and
  • has made changes that enhance readability while otherwise faithfully reproducing the quoted text.

Bottom line: using (cleaned up) makes quoting and citing easier and aids reading, too.

But beware. When you use (cleaned up), your credibility is on the line. You’re saying, “I haven’t altered this quotation unethically, and I haven’t done anything dishonest or underhanded.” If you use (cleaned up) to change the quotation in ways that misrepresent the original text, your credibility is gone.

Of course, that’s true of anything you cite or quote: if you’ve exaggerated, fudged, or lied, someone—judge, staff attorney, clerk, opposing counsel—will find you out. So consider (cleaned up) and join me in hoping the next edition of the Bluebook takes note.

Get Wayne Schiess’s books:

Legal Writing Nerd: Be One
Plain Legal Writing: Do It

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Proposed Bluebook Rule 5.4: Cleaning up Quotations:

(a) Cleaning up. When language quoted from a court decision contains material quoted from an earlier decision, the quotation may, for readability, be stripped of internal quotation marks, brackets, ellipses, internal citations, and footnote reference numbers; the original sources of quotations within the quotation need not be cited parenthetically; and capitalization may be changed without brackets. Indicate these changes parenthetically with (cleaned up). Other than the changes specified, the text of the quotation after it has been cleaned up should match the text used in the opinion cited. If the quotation is altered further, indicate the changes or omissions according to Rules 5.2 and 5.3.

(b) Cleaning up intermediary case citations. In addition to the alterations described in Rule 5.4(a), when a quoted passage quotes a second case quoting a third case, the citation to the middle case may be omitted to show that the first court quoted the third. To indicate this change, retain the quotation marks around the material quoted from the third case and any alterations that were made to the quotation, and insert (cleaned up) before the “quoting” parenthetical citation to the third case. Indicate any alterations that were made to language quoted from the third case according to Rules 5.2 and 5.3.

Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154-55 (2017).

Ending with prepositions

It’s not wrong. It’s less formal.

“There is no rule against ending sentences with prepositions.” Texas Law Review, Manual on Usage & Style 55 (13th ed. 2015).

Is that authoritative? After all, the MoUS is written by students. Yet Bryan Garner agrees: the “rule” against ending a sentence with a preposition is “a superstition that just won’t die.” The Redbook 195 (4th ed. 2013). Strunk and White say so, too: “Not only is the preposition acceptable at the end, sometimes it is more effective in that spot than anywhere else.” The Elements of Style 77-78 (4th ed. 2000). Yes, that’s the fourth edition from 2000, but the quoted language is unchanged from first edition in 1959 (see page 64).

Canvass the style manuals and writing references and websites—the answer is near universal. End a sentence with a preposition if you need to. Prepositions are perfectly good words to end sentences with. If you think there’s a rule against ending with a preposition, you don’t know what you’re talking about.

So what’s the deal?

First, a preliminary matter. This blog is about writing, not speech, but ending with a preposition is fine in conversation, right? That’s something I hope we can agree on. In particular, we often end with prepositions when asking questions: Who are you talking about? Where did he disappear to? What did you step on? Most of us would never speak these stiff, over-formal versions: About whom are you talking? To where did he disappear? On what did you step?

Back to writing. Despite the experts (the MoUS, Garner, Strunk & White) the supposed rule against ending propositions still causes lawyers to write sentences like this:

  • Attached are three local rules of which you should be aware.
  • A hammer, not an ax, was the weapon with which he struck the victim.
  • The deponent could not recall in which folder she saved the file.

These sentences are grammatically correct and have no ending prepositions, but to me they’re stilted and unnatural. They don’t flow.

One reason for these stilted sentences is that we know other legal writers believe the supposed rule, and we don’t want to risk annoying those readers or, worse, seeming semi-literate. And so the circle spins on. We know it’s okay to end with a preposition, but we also know some of our readers don’t know it’s okay, so we avoid doing it, perpetuating the no-ending-preposition practice.

What should we do? Rather than treat ending prepositions as wrong or right, a better approach is to think of them as a matter of formality and emphasis.

Ending with a preposition isn’t wrong. It’s less formal. That realization alone leads to some easy decisions. Appellate brief? A highly formal document for an audience whose grammar preferences you probably don’t know well. Avoid ending with prepositions. Memo to a supervisor? A moderately formal document for an audience whose preferences you might know. Unless the audience objects, an occasional ending preposition is acceptable. Work-related email to a colleague? An informal document to a well-known audience. Ending with prepositions is fine.

Ending with a preposition is also a matter of emphasis. You always have options, so you can always avoid ending with a preposition, but knowing when to do it requires experience and what we often call “a good ear.” Here’s an example.

Suppose you want to convey this idea:

  • Silver Partners refused to join any venture Hooper was part of.

That sentence strikes me as succinct and forceful. But you have several options that don’t end with a preposition.

  • Silver Partners refused to join any venture if Hooper was part of it.

Or this:

  • If Hooper was part of the venture, Silver Partners refused to join.

But don’t choose this option:

  • Silver Partners refused to join any venture of which Hooper was part.

It’s always possible to avoid ending with a preposition, and avoiding has no risk. But I offer these two points.

(1) Don’t write the stilted, ending-preposition work-arounds like that last example (of which Hooper was part); they sound unnatural and affected.

(2) If the preposition-ending sentence creates just the tone and emphasis you want, do it.

After all, there is no rule against ending a sentence with preposition.

Get the books:

Legal Writing Nerd: Be One
Plain Legal Writing: Do It