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."

Using Styles in MS Word

The learning curve is worth it.

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

Styles in Microsoft Word are pre-set formats you can apply to parts of your document. There are existing Styles for body text (Normal) and headings (Heading 1, Heading 2, etc.), and you can create other types for block quotations, bullet lists, and more. Styles allow you to set font, line spacing, paragraph spacing, automatic tabbing, and other features and then apply those pre-set formats to any document. On a PC, you can find Styles in a large section at the Home tab. (It’ll be different on a Mac.)

If you spend a lot of time creating Word documents, I encourage you to learn more about Styles. Yes, there’s a learning curve, but you’ll save time and reduce frustration if you master Styles. One good source to consult is this book:

  • Ben M. Schorr, The Lawyer’s Guide to Microsoft Word (2015)

Getting started

You’ll need to change Word’s default Styles. For example, the default Normal Style (for body text) uses Calibri, a sans serif font that’s probably not right for most legal documents. Some of the default Heading Styles use colored fonts—also not right for legal writing.

So right click on the Style you want to change, choose “Modify,” and set it up the way you want: choose a font, click Format then Paragraph and set the line spacing (double, single), and then set the paragraph spacing (probably zero). Tell it to automatically indent one tab for each new paragraph. Or don’t; you can still do it manually. For the Heading Styles, do the same but apply boldface or italics. To keep these new Styles, click the button for “New documents based on this template.”

Once you’ve made your Style choices, create your document by typing and, as you go or during revision, apply your Styles. To apply a Style to any piece of text, select the text, or place your cursor in the text, and choose the appropriate Style.

Three reasons to use Styles

First, you’ll get consistent formatting. All your headings at the same level will look the same, all your lists will look the same, all your block quotations will look the same, and so on. Naturally, you’re aiming for consistency already, but Styles make consistency easier. For a block quotation, instead of indenting left and right and converting to single spacing, just type (or paste in) the text and click the Style for Block Quotation. Done. Universal changes are easy, too. To change all your first-level headings from bold italics to bold, you don’t find and re-format each one. Instead, modify the Heading 1 Style from bold italics to bold, and the format changes occur automatically.

Second, with Styles for headings, you can use the Navigation Pane. To see it, go to the View tab. In the Show section, check the box for Navigation Pane. It appears on the left and displays an outline, pulling the entries from your Styles Headings. The entries in the outline are click-able, allowing you to move around easily in a large document—like a 40-page brief or a 60-page contract.

Third, using Styles enables you to create a Table of Contents in seconds. Go to the References tab, click on Table of Contents, and choose Custom Table of Contents (near the bottom). Word will generate a table of contents from the Styles headings in your document—correct page numbers and all. You can adjust the settings: How many heading levels do you want displayed? Do you want the entries to be hyperlinked? And so on. If you make any changes later, right click on the table of contents and Update Field to update the headings and the page numbers.

I’ll admit that it took me a while to master the Styles function and to see the benefits, but ultimately it was worth it. I now save time when I create and modify documents, and producing a table of contents in 10 seconds is wonderful. So it might take a while to master the Styles function, but the effort will pay off in time and headaches saved.

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

Singular “they”

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

It’s catching on, even in legal writing.

Can we use the plural pronoun they to refer to a singular person whose gender is unspecified? Can we do this:

  • The buyer might change their mind.
  • Every vehicle owner must have their vehicle inspected annually.
  • Always keep the reader in mind and try to meet their expectations.

Well, in speech and informal writing, many of us are already using this “singular they.” The singular pronouns in English—she, her, hers and he, him, his—are gendered, and if you don’t know the gender of the unspecified antecedent (buyer, owner, reader), you don’t know what pronoun to use, so we use they.

You could default to he, him, his. But there’s broad agreement that doing so is sexist, and many careful writers avoid using defaulting to male pronouns for that reason. Still, using male pronouns for gender-unspecified antecedents is an established convention and one that some legal writers follow.

You could switch to the female, she, her, hers, and some writers do. That convention isn’t as common in legal writing, and because it isn’t common, it might attract more attention than you want.

You could use he or she or he/she each time. These pairs are entirely appropriate in formal legal writing, and they’re used regularly. For me, they can become tedious and distracting after a while, but they’re acceptable. By the way, a case-law search turned up a few instances of s/he, which, although used in other genres, still isn’t common in legal writing.

If those options don’t appeal to you, what should you do in formal legal writing? Two suggestions.

First, you can write around the problem every time it comes up. That takes some thought and effort as you edit, but with practice it becomes second nature. And writing around the problem is unlikely to distract readers. Some examples—

Pluralize—then the plural pronoun works just fine:

  • All vehicle owners must have their vehicles inspected annually.
  • Always keep your readers in mind and try to meet their expectations.

Repeat—being careful about potentially distracting repetition:

  • Every vehicle owner must have the owner’s vehicle inspected annually.
  • Always keep the reader in mind and try to meet the reader’s expectations.

Rephrase—to avoid the need for a pronoun:

  • The buyer might have a change of mind.
  • Every vehicle owner must have the vehicle inspected annually.

In my own writing, I’ve found that these three techniques work well.

Second, you could jump on the “singular they” bandwagon. That’s the position of two authors of a Michigan Bar Journal article called, “Evolving They.”[1] Brad Charles, a legal-writing professor, and Thomas Myers, a Michigan Supreme Court staff attorney, say the time has come to embrace the singular they: “More and more writing experts and guides are trumpeting that the once-plural-only pronoun may now be used as a singular pronoun .…”[2]

The authors cite as some of the trumpeting sources The American Dialect Society, The Washington Post’s style guide, and the AP Stylebook—which allows the singular they in “limited cases.”[3] The authors also note that Justice Sonia Sotomayor used a singular they in her majority opinion in Lockhart v. Unites States from 2016: “Section 2252(b)(2)’s list is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if they had started from scratch.”[4]

What do I do? I still write around the problem in formal documents, and I tell my students to check with their supervisor and then do what the supervisor says.

Finally, Charles and Myers encourage legal writers to respect a person’s preferred pronouns, acknowledging that some prefer they, them, their to the gendered pronouns. I encourage legal writers to respect those preferences, too.

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

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[1] Brad Charles & Thomas Myers, Evolving They, 98 Mich. B.J. 38 (June 2019).

[2] Id. at 38.

[3] Id. at 39.

[4] Lockhart v. United States, 136 S. Ct. 958, 966 (2016).

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).