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."

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).

Somewhat Qualified, Part 1

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.