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."

Saxon & Romance Words, part 2: Contract Drafting

Get the book: Legal Writing Nerd: Be One

The last post introduced a way to think about plain words versus fancy ones: sometimes it’s the difference between words of Saxon origin and words of Romance origin. As a refresher, and to set the stage for this post’s focus, try this quiz. For each Saxon-named animal, give the French (Romance) name for the type of meat: chicken, cow, deer, sheep, pig. (Answers at the end of the column.)

Now let’s discuss contracts and other binding legal documents. They often contain Saxon-Romance pairs:

  • agree and covenant
  • cease and desist
  • due and payable
  • hold harmless and indemnify
  • sell and convey
  • will and testament

Why?

During the 1200s, French became the primary language of the law in England. In the 1400s and after, English began to replace French as the language of the upper classes. (History lesson omitted.) Hence the Saxon names for farm animals and the Romance names for their meat when served—as seen in our quiz.

English also began to replace French as the language of the law. Thus, as explained by David Crystal in The Stories of English, legal scribes often had to decide what words to use when “French and English each provide a copious supply of relevant items.”1 Often they didn’t choose—they used both.

As Crystal puts it, “Old English goods and Old French chattels resulted in Middle English legalese, goods and chattels.”2 Sometimes the pairs were synonyms, sometimes they were subtly different, and sometimes they were paired out of “stylistic habit, perhaps fostered by their undoubted rhythmical appeal in oral performance.”3

Many of these doublets persist today, as we saw in the pairs listed above. We also see triplets:

  • give, devise, and bequeath
  • ordered, adjudged, and decreed
  • right, title, and interest

Old legal language isn’t necessarily bad legal language, so how should legal drafters address these doublets, triplets, and longer strings? My advice here relies on my preference for plain, direct words and on the expertise of Kenneth Adams in his Manual of Style for Contract Drafting.4

First, do enough research to decide whether the doublet, triplet, or string contains words that differ in meaning or whether they’re true synonyms. (Sources to consult: Adams’s Manual of Style, Garner’s Dictionary of Legal Usage, and Black’s Law Dictionary.) If they’re not true synonyms, decide which meanings you intend and keep only the words you need.

If you have true synonyms, do your best to pick one word that conveys your intended meaning and delete the others. For example, in most contracts, sell and convey can be shortened to sell. If you intend separate actions—selling the item and then conveying the item to the buyer—then separate provisions requiring the seller to both sell the item and deliver it would be better.

What about the stock judicial phrase ordered, adjudged, and decreed? Certainly it’s harmless as is, but it would also certainly be harmless to shorten it to ordered.

And this monster is still sometimes used with security interests: grant, assign, convey, mortgage, pledge, hypothecate (what?), and transfer. Adams says it can be shortened to grant.5

To those who say that the extra words are harmless, so there’s no reason to excise redundancies, I can say only this: you’re mostly right. But litigation over the Romance-Saxon phrase indemnify and hold harmless gives pause. Some courts say they’re synonyms, while others say they’re not.6 Ultimately, a knowledge of Saxon-Romance pairs might help you streamline and improve your contracts.

(Quiz answers: chicken/poultry, cow/beef, deer/venison, sheep/mutton, pig/pork.)

Wayne Schiess’s past Austin Lawyer columns are collected in a book available on Amazon.com: Legal Writing Nerd: Be One.

_____

  1. David Crystal, The Stories of English 152 (2004).
  2. Id.
  3. Id.
  4. Kenneth A. Adams, A Manual of Style for Contract Drafting 6-7 (3d ed. 2013).
  5. Id. at 7.
  6. Id. at 292-93.

Saxon & Romance Words

Get the book: Legal Writing Nerd: Be One.

In reading about writing, I’ve run across the following advice

  • H.W. Fowler: “Prefer the Saxon word to the Romance.”1
  • Strunk & White: “Anglo-Saxon is a livelier tongue than Latin, so use Anglo-Saxon words.”2

But I never paid much attention because I didn’t know what it meant. When I finally learned, from Classical English Style by Ward Farnsworth,3 I saw that the advice could apply to legal writing, too. 

Modern English contains words of many origins, but two key sources are Anglo-Saxon and Latin; many words of Latin origin are also French and are sometimes referred to as words of “Romance” origin. Yes, I’m skipping the history lesson, but some common examples can help make the point. Here are four pairs in which the first is of Anglo-Saxon origin and the second is of Latin/French/Romance origin:

  • break/damage
  • come/arrive
  • make/create
  • need/require

No, they’re not perfect synonyms, but we can immediately make some generalizations: Saxon words tend to be shorter—often single syllable, and harder in sound; they also tend to be concrete rather than abstract, and less formal, too. One way to put it is that Saxon words are plain, and Romance words are fancy, as in these Saxon/Romance noun pairs:

  • belly/abdomen
  • boss/superior
  • job/position
  • wish/desire

Try it. Here are five Saxon verbs—try to think of the Romance synonyms:

  • ask
  • buy
  • eat
  • see
  • talk

(Answers at the end of this post.) 

What can we do with this knowledge? The recommendation is not to replace every Romance word with a Saxon word—the best writing advice is rarely always or never. Instead, generally default to Saxon words but use your editorial judgment, considering audience, tone, legal terms, and subtleties of meaning. Here are some before-and-after examples with comments.

Before: The City Planner agreed that Hamet’s lot was adjacent to the single-family homes.
After: The City Planner agreed that Hamet’s lot was next to the single-family homes.

  • This is a sensible edit that substitutes a shorter Saxon word for a longer Romance word, making the text a bit more readable.

Before: Castillo asserts that a spouse has no constitutional right to the effective assistance of counsel in a divorce suit.
After: Castillo asserts that a spouse has no constitutional right to the effective help of counsel in a divorce suit.

  • Probably not a good edit. “Effective assistance of counsel” is a standard legal phrase. Don’t replace Romance with Saxon when the Romance term is, or is part of, standard legal language.

Before: But a video camera won’t prevaricate.
After: But a video camera won’t lie.

  • This is a solid edit. The example is from an appellate brief, and in that context, if you’re willing to begin a sentence with but and use a contraction, the Saxon lie delivers more force than the Romance prevaricate.

You might reasonably ask why it helps to know that the plain word is Saxon and the fancy word is Romance. Can’t we just use plainer, simpler words when possible? Yes, you can. But I hope this will help raise your writing IQ.

Plus, there’s more to know about Saxon and Romance words in legal writing, and I’ll continue the discussion in the next post. For now, put Saxon/Romance (or just fancy/plain) on your writing radar. Start to notice when you use a fancy Romance word when you could use a plain Saxon one.

Quiz answers: ask/inquire, buy/purchase, see/observe, eat/consume, talk/converse.

Get the book: Legal Writing Nerd: Be One.

_____

[1] H.W. Fowler, The King’s English 1 (1906).

[2] William Strunk, Jr. and E.B. White, The Elements of Style 77 (4th ed. 2000).

[3] Ward Farnsworth, Classical English Style (forthcoming)

Block that block quotation

Considerations for using block quotations.

A survey of the advice on block quotations shows that it’s almost all negative: Don’t do it unless you must, say judges, legal-writing teachers, and experienced lawyers. So we should block block quotations? Why? Two main reasons.

Readers skip them. These readers include judges and their clerks. Admit it—you often skip block quotations when you read, too, so why would your readers be any different? If you put something important in a block quotation, you risk that it won’t be read.

They smack of laziness. Instead of paraphrasing, instead of summarizing, you used a block quotation—you copied and pasted. That’s the impression block quotations give, especially if you overuse them, and that perceived laziness turns readers off.

Despite these concerns, many well-written memos and briefs contain at least one block quotation and sometimes more. So the point is not to ban block quotations but to use them sparingly and effectively. Here are some recommendations.

First, anything you block-quote must be vital. If statutory language is at issue or is crucial to your analysis, a block quotation is appropriate. And sometimes, block-quoting key statutory text can allow readers to get re-anchored in the relevant language by flipping or scrolling back to it without having to consult an appendix.

Likewise, if a binding case contains language of more than 50 words that’s directly relevant to your argument or powerfully persuasive for your position, a block quotation is appropriate. But if you harbor doubts about how vital the quotation is, you probably shouldn’t use a block quotation.

Even after you decide you need that quotation, try to shorten it to fewer than 50 words—just so you can avoid a block quotation. Yes, an embedded quotation of 49 words is still off-putting, but it’s more likely to be read because it isn’t a block.

Now, if the text is 50 words or longer and you’re certain you need it, edit it again so that when block-quoted, it’s not too long. No page-length block quotations, please. One thing more annoying than a block quotation is a long block quotation.

As you edit, show your alterations and omissions per Bluebook rules, but remember: heavy alteration or omission suggests that the quotation might be taken out of context, so go easy. One lawyer recommends that if you’ve heavily edited the block quotation, drop a footnote that contains the full text so readers can check your work.1

As a last step, write an inviting, persuasive lead-in to the block. The lead-in needs to show why the quotation is important or assert something the quotation will prove. In fact, it’s acceptable to paraphrase the quotation’s key point and use that paraphrase as a lead-in. Think of it like this: The lead-in should make the reader think, “Hmm. Is that so? Well maybe I should read this block quotation to be sure.” (Introducing quotations was addressed in this blog here.) One colleague suggested that the text after the block quotation might assert the key point, too. Readers who skip the block will still get the point—twice.

Are you going to strictly follow The Bluebook’s rule on length? In rule 5.2, The Bluebook says you must block only quotations of 50 words or more. But I say you can treat that rule as a recommendation, not binding authority. If you have a shorter quotation you’d like to highlight, you may set it off as a block if you wish.

Ultimately, you’re in charge of your block quotations, so use them sparingly but effectively.

Check out Wayne Schiess’s new book: Legal Writing Nerd: Be One.

1. Maureen Johnson, To Quote or Not to Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda, 56 S. Tex. L. Rev. 283, 306 (2014).

Don’t over-delete “that”

Over-deleting that can cause miscues.

When I was a young lawyer, a senior attorney edited something I had written and removed the word that in several places, saying, “Whenever you can delete that, do it to streamline the writing.” In the years since, I’ve heard the same advice many times: “delete extraneous thats.”

The advice isn’t wrong, but we sometimes implement it in dysfunctional ways: we sometimes delete that when it isn’t extraneous. Let’s look at a few examples.

1. The respondent argues the statute precludes all common-law claims.
2. The witness said the defendant had lied about the date.

For me, sentence 1 causes a miscue—a momentary misunderstanding—because at first, I think the respondent is “arguing the statute.” Only as I read on do I realize that the respondent is not arguing the statute; the respondent is making an argument about what the statute does. So for me, 1a is better even though it’s one word longer:

1a. The respondent argues that the statute precludes all common-law claims.

But for me, sentence 2 doesn’t cause the same miscue. With the verb “say,” I somehow know that the writer doesn’t mean that the witness “said the defendant.” I know it means that the witness said that the defendant had lied. So if I wrote sentence 2a, I could justifiably leave out that (although retaining it is fine, too):

2a. The witness said that the defendant had lied about the date.

These two examples highlight why deleting that is tricky. It’s difficult to give strict guidelines for when deleting that is justified and when deleting that will cause a miscue.

So I suggest that for many common verbs in legal writing, retain that. Verbs like admit, allege, conclude, find, hold, reason, show, and suggest. Here are some examples in which I think that was wrongly omitted:

3. The court concluded the claim was brought in bad faith.

  • The court concluded the claim? Oh. The court concluded that the claim was brought …

4. A jury will be able to find Mason’s errand was for the benefit of the employer.

  • A jury will be able to find Mason’s errand? Oh. A jury will be able to find that Mason’s errand was for …

5. The Reynosa decision shows the implied duty is distinct from any contractual duty.

  • The Reynosa decision shows the implied duty? Oh. The Reynosa decision shows that the implied duty is distinct …

Without that, these examples can cause a miscue for the typical reader, who’ll end up having to re-read the sentence to get the intended meaning. So over-deleting that results not in concise, streamlined writing but in writing that frustrates.

So rather than a rule for deleting that, I would default to retaining that and remove it when editing only if you’re sure no miscue will result. Use your own editorial judgment or ask a colleague to read and react.

____

Wayne Schiess’s columns on legal writing have appeared in Austin Lawyer for more than 11 years. Now they’re compiled in a book: Legal Writing Nerd: Be One.

Somewhat Qualified, Part 2

Qualifying legal conclusions

Legal matters are often qualified: some conclusions might merit absolutely and certainly, while others deserve possibly and likely. So legal writers justifiably use qualifiers. In my last post, I discussed qualifying factual statements; here I discuss qualifying legal conclusions.

Relying on a survey of legal-writing textbooks, I can report that these are the most commonly recommended qualifiers for legal conclusions:

  • likely
  • probably
  • plausibly
  • possibly
  • should

The most frequently recommended are likely and its forms, with probably coming in second.

Many of the textbooks surveyed discuss the traditional, predictive memorandum, in which a lawyer predicts an outcome that may be less than certain. But the same qualifiers are useful in other contexts, too—whenever a lawyer gives advice or offers a recommendation.

In fact, likely and its forms are part of a useful continuum from positive to negative certainty. At one end is a direct yes or will—a legal result will happen; the outcome is certain. At the other is no or will not. In between are likely and unlikely, which might be further qualified: highly likely, highly unlikely, and so on.

Now the advice.

1. Don’t qualify.

As with much writing advice for adverbs, adjectives, intensifiers, and qualifiers, the best advice is to avoid them when you can. Bryan Garner recommends that legal writers “toss out timid phrases.”[1] What’s more, he calls these qualifiers Fudge Words and offers as an undesirable example, “It would seem to appear that….”[2] That’s a trifecta: three Fudge Words in one clause: would, seem, and appear.

The urge to qualify is natural, but legal writers must be careful of “overhedging.” Granted that legal outcomes are rarely certain, we sometimes overcorrect and qualify too much. It’s a natural tendency, and novices might be particularly vulnerable.

In fact, a colleague in another state forbids his first-year law students to qualify conclusions at all. He believes it forces them to research carefully, analyze precisely, and write clearly.[3] But even if you don’t enforce a prohibition, it’s a good default: don’t qualify. For example (qualifiers are in boldface):

  • Before: A possible lawsuit by Heather Green against her employer, Manzares & Cline LLP, could likely survive a motion to dismiss.
  • After: A lawsuit by Heather Green against her employer, Manzares & Cline LLP, will survive a motion to dismiss.

2. Qualify and explain.

When you decide that you must qualify your conclusion, that you must hedge, do your best to explain why—immediately and concretely. Explaining has two benefits.

You benefit. Forcing yourself to articulate why you’ve qualified your conclusion can lead to insights about the level of qualification. Maybe you over- or under-qualified your conclusion, which you can see now that you’ve had to explain it. Revise accordingly.

Readers benefit. Explaining why you qualified a conclusion serves clients and decision-makers. They already know that likely means better than 50-50 but not a sure thing. By explaining, you make your conclusion more concrete and empower them to ask additional questions or pursue other options.

Here’s an example that uses the qualifier likely and then gives a concrete explanation of why the writer qualified the prediction:

  • A lawsuit by Heather Green against her employer, Manzares & Cline LLP, will likely survive a motion to dismiss. Nonlawyer employees may sue for retaliation because it encourages reporting of illegal activities. But in-house counsel may not sue because lawyers have an independent ethical obligation to report illegal activity. Green, an associate, did not represent her employer as an attorney, as in-house counsel do. She is not under the same ethical obligation to report illegal activity and deserves the incentives provided by a retaliation suit.

So set your default at no qualifications, but when you must qualify, be clear about why.

_____

[1] Bryan A. Garner, The Elements of Legal Style 35 (2d ed. 2002).

[2] Bryan A. Garner, Garner’s Dictionary of Legal Usage 381 (3d ed. 2011).

[3] Andrew J. Turner, Helping Students Grow Professionally and Overcome Fear: The Benefits of Teaching Unqualified Brief Answers, 25 Perspectives: Teaching Leg. Res. & Writing 3, 4-5 (2016).