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."

Mastering Appositives

The Two Types of Appositives: Restrictive and Nonrestrictive

An appositive is a noun or noun phrase that restates or renames another noun. Here, the noun Robin Lang restates or renames defendant:

  • The defendant, Robin Lang, did not hire a lawyer.

But properly punctuating appositives depends on the type of appositive, and the type depends on whether the appositive is essential or additional to the meaning of the original noun. The first type (essential) is called a restrictive appositive. This type of appositive renames or restates the noun in a way that is essential to a full understanding of the sentence. The appositive defines or restricts the original noun in a way that differentiates it from other nouns of that type. For example:

  • The politician Jordan Lopez gave the commencement address.

This sentence implies that there are multiple politicians and that the one who gave the commencement address was Jordan Lopez. That makes sense. If the appositive were set off with commas, it would create confusing implications:

  • The politician, Jordan Lopez, gave the commencement address.

This sentence implies that there is only one politician (in the world?) or that the politician is being differentiated from other nonpoliticians in some way. The commas are unnecessary. Another example using my own name:

  • The dean asked Wayne Schiess the legal-writing teacher to edit the manuscript.

This sentence implies that there are multiple people named Wayne Schiess and that the dean asked one of those Wayne Schiesses—the one who is a legal-writing teacher—to edit the manuscript. Thus, the sentence doesn’t really make sense and should be punctuated like this:

  • The dean asked Wayne Schiess, the legal-writing teacher, to edit the manuscript.

That example, with commas, is a nonrestrictive appositive. Nonrestrictive (also called “nonessential”) appositives present what might be considered additional information, offered as extra or “by the way.” You’d still have a sensible sentence without the appositive.

Returning to our first example:

  • The defendant, Robin Lang, did not hire a lawyer. This means–The defendant [, whose name is Robin Lang, by the way,] did not hire a lawyer. And without the appositive, it would still make sense–The defendant did not hire a lawyer.

Besides a pair of commas, you have other punctuation options for nonrestrictive appositives. If the restating phrase comes at the end of the sentence, use a comma and a period:

  • The party who did not hire a lawyer was the defendant, Robin Lang.

And you may set off appositives with a pair of parentheses, a pair of dashes, or a dash and a period:

  • The defendant (Robin Lang) did not hire a lawyer.
  • The defendant—Robin Lang—did not hire a lawyer.
  • The party who did not hire a lawyer was the defendant—Robin Lang.

The most common mistake I see in using nonrestrictive appositives is failing to include the second comma:

  • Wrong: The defendant, Robin Lang did not hire a lawyer.
  • Wrong: Equitable adoption, a common-law doctrine may apply even in the absence of a court order.

The first example needs a comma after Lang; the second needs one after doctrine.

The differences between restrictive and nonrestrictive appositives come up occasionally in legal writing. If there is only one party on a particular side (one buyer, one defendant, one appellee), then the appositive is likely to be nonrestrictive:

  • The buyer, National Insurance, retained its trial counsel to handle the transaction.

But if there are multiple parties on one side, a restrictive appositive may be appropriate (depending on the context).

  • The respondent Taylor Mura refused to cooperate with the respondent Media Group, LLC.

And of course, in legal writing, we sometimes omit the article the before party appellations:

  • Respondent Taylor Mura refused to cooperate with respondent Media Group, LLC.

Properly punctuating appositives isn’t always simple, but it’s a fundamental and basic skill in legal writing. It’s something careful writers do well.

Legal Writing Nerd: Be One

 

The Science Behind the Art of Legal Writing

I highly recommend The Science Behind the Art of Legal Writing, an excellent book by Catherine J. Cameron and Lance N. Long, which just came out in a second edition. They’ve taken some truisms and common teaching  points from legal writing and done the research to see if those truisms and teaching points can be validated with science. For example—

  • Does format matter?
  • Why is passive voice so hated?
  • Citation—does anybody really care?

They also address—

  • macro- and micro-organization
  • the use of narrative
  • readability and plain language
  • what persuades and what doesn’t

It’s easy to read and full of good advice.

Writing knowledge is like an onion

Level 0 writers think nothing of writing:

  • The lawyer that argued the case …

Level 1 writers have learned enough to believe that one must always refer to a person with personal pronouns (and never with that or it), and so they write:

  • The lawyer who argued the case …

Level 2 writers have looked up this topic and read enough reliable sources to know that there is no such rule, that using that for a person is a widespread and historically common usage, and that it’s primarily misguided sticklers who try to prohibit it; so they go ahead and write:

  • The lawyer that argued the case …

Level 3 writers believe that enough misguided sticklers are in their reading audience that it’s worth conforming to the nonrule to avoid creating the even the mistaken impression of an error; so they write:

  • The lawyer who argued the case …

Level 4 writers have enough confidence in their own writing credibility that they focus on producing clear, readable prose in their own voice; they don’t manipulate the prose to conform to nonrules enforced by misguided sticklers; I don’t know what they would write. 

Legal Writing Nerd: Be One

Saxon-Romance Persuasion

This post discusses two techniques for creating memorable, persuasive prose, which I discovered in Ward Farnsworth’s forthcoming book, Classical English Style. By the way, how’re you doing at spotting Saxon and Romance words? Here’s Quiz 3: name the Saxon alternative for each Romance verb: cogitate, emancipate, imbibe, inundate, masticate (answers at the end).

In persuasive writing, some judges prefer Saxon words:

  • “[The best advocates] will master the short Saxon word that pierces the mind like a spear . . . .” Hon. Robert H. Jackson, U.S. Supreme Court.1

Another example:

  • “A healthy respect for the robust Anglo-Saxon appeals more than does the Latin . . . .” Hon. Wiley B. Rutledge, U.S. Supreme Court.2

We can take advantage of this preference with two persuasive-writing techniques that combine Saxon words with Romance words—relying on differences in tone, formality, and force. The two techniques are the Saxon Restatement and the Saxon Finish.

The Saxon Restatement. With this technique, you state a proposition using primarily Romance words and then restate it using primarily Saxon words (or vice versa). Abraham Lincoln did it in his House Divided speech:

  • “I do not expect the Union to be dissolved; I do not expect the house to fall.”3

Lincoln essentially says the same thing twice: with Romance words (union, dissolve) and then Saxon (house, fall). He names lofty concepts and then brings them down to earth, creating a forceful, memorable couplet.

Winston Churchill did something similar in a famous speech:

  • “I have nothing to offer but blood, toil, tears, and sweat. We have before us an ordeal of the most grievous kind.”4

Here Churchill reversed the pattern, starting with Saxon (blood, toil, tears, sweat) and reiterating with Romance (ordeal, grievous). The real, physical sacrifices are named and then connected to the abstract concepts.

I’ve created examples for modern legal writing by modifying text from appellate briefs:

  • The jury justifiably relied on the photographic evidence because images are unable to prevaricate; pictures cannot lie.

Here, image, able, and prevaricate are Romance; cannot and lie are Saxon. The lofty legal concepts are made concrete. Another example:

  • Albrecht’s only obligation under the order was to remunerate the seller for the vehicle she purchased—to pay for what she bought.

The Saxon Finish. With this technique, you state a single proposition, but after beginning with Romance words, you finish with Saxon. Oliver Wendell Holmes did it well. Here are two examples from his dissenting opinions—the Saxon Finish is italicized:

  • “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”5
  • “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”6

Holmes builds up to a big idea with Romance words; then he states the idea with Saxon words. The result is a forceful wrap-up.

I’ll give it a try:

  • Petrolco asks this court to affirm the trial court’s interpretation of section 216(b) so that punitive damages are grafted onto the text—an interpretation that produces an entirely different class of remedy from mere legislative silence. Petrolco asks too much.
  • The drug would be located in the deceased’s system only under illicit conditions because having the drug is against the law.

Granted, these techniques are used most often used in speech. Still, you should add them to your toolkit for persuasive legal writing. They constitute sophisticated rhetorical devices—they are tools of plain English.

Quiz answers: cogitate/think, emancipate/free, imbibe/drink, inundate/flood, masticate/chew

____

[1] Collected in Bryan A. Garner, Judges on Effective Writing: The Importance of Plain Language, Mich. B.J. 44–45 (Feb. 2005).
[2] Id.
[3] Quoted in Ward Farnsworth, Classical English Style (forthcoming).
[4] Id.
[5] Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting).
[6] United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).