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."

Texting and Legal Writing: Survey Results

Although 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)

Is “herein” ambiguous?

Apparently so. Although the case law is sparse, herein has been construed to mean the individual section in which herein appears but also the entire document in which the section containing herein appears. Context dictates.

  • In a section of the Los Angeles city charter, the word herein referred only to the section in which the word herein appeared and not to the charter as a whole. City of Los Angeles v. Layton, 75 Cal. Rptr. 143, 145 (Ct. App. 1969).
  • In a will, the word herein referred to the whole will and not to the individual section in which the word herein appeared. Taylor v. Albree, 56 N.E.2d 904, 909 (Mass. 1944).
  • The word herein referred only to the statutory section in which it appeared, and not to the entire article in which that section appeared. Sharp v. Tulsa Cty. Election Bd., 890 P.2d 836, 841 (Okla. 1994), as supplemented on reh’g (Jan. 31, 1995).

So be careful, drafters.

If you’re able, maybe change herein to

  • in this section
  • in this agreement
  • in this statute
  • in this will

Even better, but trickier if you’re relying heavily on a form, maybe change herein to

  • in section 4

MS Word can create automatically update-able cross references if you want it to.

Improving writing—yours and others’

Lawyers are editors, and not only of our own work—we often edit others’ writing. An edit that improves the writing is great, but a good edit can also improve the writer. So lawyers are teachers, too. How are we doing? It’s mixed. In this post I’ll mention three recurring problems and offer some suggestions.

“I get no writing feedback.”

Lack of feedback is understandable. Lawyers are busy, and getting the document done is more important than helping junior lawyers improve their writing. And junior lawyers should be responsible for their own improvement, right? Yet without even minimal feedback, it’s hard to improve.

There are no easy solutions to this recurring problem. As Bryan Garner noted, “The modern … well-managed law firm has more work to do than it can complete in a given time.”[1] Sometimes what’s lost is teaching—including teaching writing. So granting that it will be difficult, I still urge junior lawyers to ask for feedback, and senior lawyers to try to give some.

“The writing feedback I get is wrong.”

I occasionally hear this from former students, and I’ve even written about it.[2] It’s great that the senior lawyer is editing the document and offering feedback, but sometimes the junior lawyer disagrees with the edits or believes they’re bad writing. What to do?

Junior lawyers, always to do your best to meet your supervisor’s expectations, even if you disagree with them. I often quote legal-writing teacher Ken Bresler: “I teach legal writing. I don’t run a job-placement service. Write how they want you to write.”[3]

And before you assert that your boss is mistaken, look it up. Both younger and older lawyers often rely on rules and conventions they vaguely recall from high school or college. But there are several authoritative, comprehensive legal-style references available. Here are three:

  • Bryan A. Garner, The Redbook: A Manual on Legal Style (3d ed. 2013)
  • Joan Ames Magat, The Lawyer’s Editing Manual (2008)
  • Deborah E. Bouchoux, Aspen Handbook for Legal Writers (3d ed. 2013).

Of course, in legal writing, a senior lawyer’s practical knowledge and insights can outweigh a technically correct writing choice, but consulting an authoritative reference promotes consistency and raises everyone’s writing IQ.

“The writing feedback I get is useless or mean.”

Given how busy lawyers are, it’s not surprising that editorial feedback is sometimes vague or unkind. Yes, junior lawyers should develop a thick skin and try to learn from the comments. But senior lawyers can also be more helpful. Three suggestions.

First, sending back a track-changes version in which you rewrote the document the way you like is better than no feedback at all, but not much. If that’s all you have time for, fine, but some level of feedback is desirable. (For a junior lawyer who isn’t getting feedback, finding the senior lawyer’s final version and preparing your own track-changes document is one way to learn.)

Second, if you give feedback, try to avoid cryptic or vague comments and harsh or personal criticism. Cryptic comments are often abbreviations or vague descriptors: “nom.,” “BB,” “I can’t follow this,” or “Needs work.” They’re usually unhelpful. Harsh criticisms are often labels: “Terrible!” Or they address the writer, not the work, often assuming the writer is sloppy or lazy, not merely inexperienced: “Is this the best you can do?” or “Next time, run a spell check.”

Third, if you can make the time, try these best practices for writing feedback as identified by Anne Enquist:

  • Provide at least some positive comments so the writer knows what techniques work and can repeat them.
  • Write comments that not only identify concerns but also suggest ways to address them.
  • If you have time, provide a short summary of the strengths and weaknesses in addition to line-by-line comments.[4]

Being an editor and a teacher takes effort—and time, which lawyers don’t always have. But try these tips to avoid the biggest problems.

_____

  1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 533 (3d ed. 2011).
  2. Wayne Schiess, What to Do When a Student Says, “My Boss Won’t Let Me Write Like That,” 11 Perspectives: Teaching Leg. Res. & Writing 113 (Spring 2003).
  3. Ken Bresler, Pursuant to Partners’ Directive, I Learned to Obfuscate, 7 Scribes J. Legal Writing 29, 30 (2000).
  4. Anne Enquist, Critiquing Law Student’s Writing: What the Students Say Is Effective, 2 Legal Writing: J. Legal Writing Inst. 145 (1996).