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."

Somewhat Qualified

Don’t overuse qualifiers in stating facts. Key takeaways:

  • qualifiers can weaken factual statements
  • dropping the qualifier and specifying instead often improve the factual statement

Legal writing deals with concepts that often require qualification, so legal writers occasionally use qualifiers. (I used two in that sentence: often and occasionally.) In this post, I define qualifiers and discuss the experts’ advice for using them when writing about facts. I then offer two recommendations.

A qualifier is a word or phrase, especially an adverb or adjective, that clarifies or modifies another word. We use qualifiers to soften or limit, and intensifiers (discussed in this blog here, here, and here) to strengthen and bolster. It’s the difference between “the cleaning solution was somewhat defective” (qualifier) and “the cleaning solution was highly defective” (intensifier).
The most common fact qualifiers in legal writing relate to frequency and quantity. Here’s a representative list:

  • generally
  • often
  • occasionally
  • probably
  • usually
  • slightly
  • sometimes
  • somewhat
  • typically
  • virtually

Advice from the experts is uniform: qualifiers applied to facts are undesirable in legal writing. In fact, Garner’s Dictionary of Legal Usage contains an entry on qualifiers called Weasel Words, and Garner says these words “have the effect of rendering uncertain or toothless the statements in which they appear.”[1] New York trial judge Gerald Lebovits says that instead of using words like typically or usually, legal writers should “resort to the exact figure … or rethink your decision to resort to the qualifier in the first place.”[2]

Steven Stark, a trial lawyer and the author of Writing to Win, says, “Opinions can be qualified, but facts should not be.” He advises, “If you don’t know a fact, don’t hedge—find it out or somehow write around it.”[3] And one of my colleagues, also an experienced trial lawyer, “views a qualifier as a red flag—either the attorney hasn’t nailed this fact down yet or it’s maybe not true.”

That’s all good advice, and I’ll add only one comment. You can’t eliminate all qualifiers. They’re occasionally (qualifier) necessary, and sometimes (qualifier) harmless. For example, there’s no flaw in this sentence: “About half the time, Crosby, not the supervisor, gave the instructions.” The qualifier (about) serves only to soften the possible implication that the half was exact—precisely 50%. That’s harmless.

So rather than banishing qualifiers, the better practice (as with all legal-writing tips) is to inform yourself of their effects and exercise your editorial judgment as to keeping or cutting. Now the tips.

1. Drop the qualifier.
Your fact statement might be better without the qualifier, and it’ll certainly be more concise. So instead of “the cleaning solution was somewhat defective,” you can write, “the cleaning solution was defective.”

Here’s another example: “The average person usually waits three months before seeing a doctor.” The idea is already qualified by the “average person,” so we can omit usually: “The average person waits three months before seeing a doctor.”

2. Quantify or specify instead.
Another tip is to replace the qualifier with specifics. For example, here the writer uses virtually to make a general statement: “There is virtually no seismic data on the Freda Turk Ranch.” If there’s no data, we can apply tip number 1 and write, “There is no seismic data on the Freda Turk Ranch.” But if there’s some data, it’s better to specify: “There were two seismic surveys completed 22 years ago on only a portion of the Freda Turk Ranch.”

So be somewhat bold when you write about facts, and you’ll generally be more credible.

_____

  1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 938 (3d ed. 2011).
  2. Gerald Lebovits, The Worst Mistakes in Legal Writing, Part 4, N.Y. State B. Assoc. J. 60, 63 (June 2018).
  3. Steven D. Stark, Writing to Win: The Legal Writer 45, 46 (2d ed. 2012).

The New Greenbook

Texas Rules of Form (14th ed. 2018). Key takeaways:

  • All courts of appeals are cited as Tex. App.
  • No publisher-date parenthetical for statutes currently in force

A new edition of Texas Rules of Form—The Greenbook—just came out in August. The 14th edition has some changes you’ll want to know about if you cite Texas authorities. I summarize the key changes below. But first, why change The Greenbook?

The Texas Law Review editors in charge of the 14th edition were determined to improve The Greenbook and to address concerns raised by practicing lawyers, law librarians, and legal educators. So they created an extensive online survey that asked about nearly every citation convention in the manual; the survey also solicited suggestions for improvement. They received hundreds of responses and ultimately made several changes intended to improve the manual. Here are the main changes.

Layout upgrade

The first thing you’ll notice is the look of the text, which I consider an improvement. The 14th edition uses a contrasting font for major headings and examples and places rule numbers in the left margin. These design elements make the text easier to read and easier to skim.

Tex. Civ. App. goes away

For all intermediate appellate court cases, the correct abbreviation for the court is now Tex. App. because the 14th edition has abandoned Tex. Civ. App. See Rule 4.2. In case you’d forgotten: before September 1, 1981, Texas’s intermediate appellate courts had no criminal jurisdiction and heard only civil cases. They were known as courts of civil appeals and were abbreviated Tex. Civ. App. After these courts gained criminal jurisdiction, they became the courts of appeals, and in a full-citation are abbreviated Tex. App. The 14th edition has done away with this distinction, so all courts of appeals are cited as Tex. App.

Old form: Key v. Plant, 500 S.W.2d 233 (Tex. Civ. App.—Austin 1973, writ dism’d)
New form: Key v. Plant, 500 S.W.2d 233 (Tex. App.—Austin 1973, writ dism’d)

Statutory publisher and year disappear

When citing a Texas statute in full form, The Bluebook and previous Greenbook editions require you to include a parenthetical containing the publisher (West) and the date (the copyright year of the print volume in which the statute appears). But the 14th edition does away with that requirement. See Rules 10.1 and 10.2. For statutes currently in force, the 14th edition drops the publisher-date parenthetical.

This change was probably motivated in part by feedback The Greenbook’s editors received on their survey. But I’ll bet it was equally motivated by their own headaches in hunting down the Vernon’s print volume to find the right date. This change is eminently wise and is one my legal-writing colleagues and I have been hoping would come to pass. Here’s what it looks like:

Old form: Tex. Tax Code Ann. § 26.06(a) (West 2014)
New form: Tex. Tax Code Ann. § 26.06(a)

Now, if we could just get The Bluebook editors to be similarly sensible.

Noting adopted opinions of the Commission of Appeals

Fully adopted opinions of the Texas Commission of Appeals were formerly cited as if they were originally Texas Supreme Court opinions, like this:

Old form: Cheney v. Coffey, 114 S.W.2d 533 (Tex. 1938)

But the 14th edition in Rule 5.2.2 now requires that the adoption be indicated in the court-date parenthetical, like this:

New form: Cheney v. Coffey, 114 S.W.2d 533 (Tex. [Comm’n Op.] 1938)

This is another sensible change. Ultimately, I like the new Greenbook, and I approve of the editors’ changes. Here’s hoping you’ll approve, too.

Texting and Legal Writing: Survey Results

Althoughh 86 responses is not a large number, the results are interesting and align with what I would expect.

1. Broadly speaking, what type of legal practice are you engaged in?
Litigation 62.79% 54
Transactions 13.95% 12
General practice 2.33% 2
Administrative law 9.30% 8
Other 11.63% 10
Total 100% 86

2. In a professional capacity, how much do you use texting (or something comparable to texting but not email)?
Heavily 9.30% 8
Moderately 20.93% 18
Rarely 60.47% 52
Never 9.30% 8
Total 100% 86

3. In a professional capacity, do you text mostly colleagues, opposing lawyers, or clients?
Mostly colleagues 60.47% 52
Mostly opposing lawyers 0.00% 0
Mostly clients 3.49% 3
Mostly colleagues and opposing lawyers 4.65% 4
Mostly colleagues and clients 19.77% 17
Mostly opposing lawyers and clients 0.00% 0
None of the above or I don’t text in a professional capacity 11.63% 10
Total 100% 86

4. In a professional capacity, do you ever convey legal analysis, legal advice, legal judgment, or comparable content by texting?
Yes, often 3.53% 3
Yes, occasionally 11.76% 10
Yes, rarely 29.41% 25
No, or don’t text in a professional capacity 55.29% 47
Total 100% 86

5. Should a law school first-year legal-writing course address texting?
Yes, cover it thoroughly. 4.65% 4
Yes, cover it briefly. 58.14% 50
No, don’t cover it. 30.23% 26
Don’t have an opinion. 6.98% 6
Total 100% 86

14 editing tips

Lawyers are professional writers, so they’re professional editors, too. Here are some editing tips I’ve gleaned from experience and the sources cited at the bottom. Send your tips to wayne@legalwriting.net

  1. Admit that bad writing becomes good and good writing becomes great only through editing.
  2. Start composing (writing the first draft) earlier, without waiting to be finished with the research.
  3. Compose freely—avoid editing while composing.
  4. Build in ample time for editing—some suggest half the time on the project—and get in the habit of leaving a lot of time for editing.
  5. Use multiple techniques to trick your mind into not being familiar with your own writing: read aloud, edit from the end to the beginning, edit from the middle to the end and then from the beginning to the middle, edit one line (as opposed to sentence) at a time.
  6. Do some editing in print and some on a screen.
  7. When editing on a screen, alter the line breaks (squeeze in the margins) or enlarge the display size to make the text look less familiar.
  8. Take multiple passes and avoid trying to edit for everything at once: devote each editorial pass to a particular editing task, find or create an approach to editing in stages or passes, be sure the passes address both large-scale and small-scale matters, be sure the passes address both professional legal English prose and legal authority (and citations if any).
  9. Employ an editing checklist—a list of mistakes you make, of required parts the document needs, and of formatting and other matters to check: find a recommended editing checklist or create your own. As you master certain techniques and eliminate those glitches from your drafts, delete them, move on to other matters, and add them to your evolving checklist.
  10. Use the Search or Find function to search the document for every instance of various items, verifying that each is correct: search for every apostrophe, search for every quotation mark, search for every colon, search for every semicolon, search for every instance of –ly (thereby locating many adverbs and giving yourself a chance to eliminate weak adverbs). Add searches that are tailored to your writing or to the particular document.
  11. Employ the spell-checker effectively: learn its settings and set them to your preferences.
  12. Employ the grammar-checker wisely: change its settings and identify the things it’s good at detecting and the things it’s terrible at.
  13. Ask a trusted colleague to edit the document.
  14. Use a commercial application to help you edit.

Sources

Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer

Michael H. Frost & Paul A. Bateman, Writing Deskbook for Administrative Judges

Bryan A. Garner, Garner’s Dictionary of Legal Usage

Debra Hart May, Proofreading, Plain and Simple

Megan McAlpin, Beyond the First Draft

Wayne Schiess & Elana Einhorn, The Five-Pass Approach to Appellate Editing, 27 Appellate Advocate 41 (2015)