Some good news for Texas Law’s Wayne Schiess

According to a recent law-review article, the list below shows the most popular legal-writing advice books from 1998 to 2018 based on holdings in the WorldCat.org global catalog of library materials (excluding textbooks and reference manuals). More information below the table.

Source: Alexa Chew, The Fraternity of Legal Style, 20 Leg. Comm. & Rhetoric: JALWD 39, 46-47 (2023).

Figure 1.1 | Legal writing books included in this study, listed by popularity

WorldCat Holdings	Author(s)	Title
986	Antonin Scalia & Bryan A. Garner	Making Your Case: The Art of Persuading Judges
965	Bryan A. Garner	Legal Writing in Plain English: A Text with Exercises
924	Bryan A. Garner	The Elements of Legal Style
797	Bryan A. Garner	The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts
755	Richard C. Wydick	Plain English for Lawyers
538	Ross Guberman	Point Made: How to Write Like the Nation’s Top Advocates
446	Tom Goldstein & Jethro K. Lieberman	The Lawyer’s Guide to Writing Well
413	Stephen V. Armstrong & Timothy P. Terrell	Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing
240	Lynn Bahrych, Jeanne Merino & Beth McLellan	Legal Writing & Analysis in a Nutshell
238	Steven D. Stark	Writing to Win: The Legal Writer
232	Wayne Schiess	*Preparing Legal Documents Nonlawyers Can Read and Understand*
230	Sandra Oster	Writing Shorter Legal Documents: Strategies for Faster and Better Editing
227	Lenné Eidson Espenschied	The Grammar and Writing Handbook for Lawyers
223	Marie P. Buckley	The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques
211	Jane N. Richmond	Legal Writing: Form and Function
205	Judith D. Fischer	Pleasing the Court: Writing Ethical and Effective Briefs
196	Wayne Schiess	*Writing for the Legal Audience*
175	Jayne Kracker	ABA Basic Guide to Punctuation, Grammar, Workplace Productivity, and Time Management
173	Austen L. Parrish & Dennis T. Yokoyama	Effective Lawyering: A Checklist Approach to Legal Writing and Oral Argument

Prof Chew’s article proves that in legal-writing advice books (which she calls “legal style books”) the sources cited and the examples given are mostly produced by men. In proving this claim, she created a list of the most popular legal-writing advice books for the period of 1998 to 2018. (She excluded legal-writing textbooks and legal-writing reference manuals.)

Ultimately, she produced a list of the most popular books for that period and then assessed the sources and examples in those books … and I was flabbergasted to see that I had two books on the list! Bryan Garner has four–hardly surprising–but I’m the only other person with more than one. Wow!

Plagiarism in Law School and in Law Practice

Some examples and a new view

This column summarizes two kinds of legal-writing plagiarism and then presents a recent article that proposes a new view of plagiarism in law practice.

Law school plagiarism

In In re Zbiegien, a student who committed plagiarism in a law-school seminar paper was confronted, admitted the plagiarism, and accepted the law school’s penalty: a grade of F. Although he disclosed the plagiarism and penalty on his bar application, he was denied admission. He appealed to the Illinois Supreme Court, which granted him admission, stating, “He has been punished; he is ashamed. … [The law school] elected to give him a second chance. We, too, believe that this conduct will not be repeated.” Two justices dissented.[1]

Reported cases in which law-school plagiarism results in bar discipline are rare, but here are two more that involved lawyers who went back to law school to get an L.L.M. In In re Harper, a lawyer was publicly censured for failing to disclose on his bar application that he had been dismissed from an L.L.M. program for plagiarism.[2] In In re Lamberis, a lawyer committed plagiarism in an L.L.M. thesis and was publicly censured by the state bar. One dissenting justice would have suspended the license.[3]

Plagiarism in court

As those bar-discipline cases show, judges take academic plagiarism seriously. But many courts are just as serious about law-practice plagiarism. In United States v. Sypher, a lawyer’s brief stated the law governing ineffective-assistance-of-counsel claims, but the trial judge discovered that the statement had been copied from Wikipedia. According to the judge, “such cutting and pasting, without attribution, is plagiarism.” The judge also reminded counsel that “Wikipedia is not an acceptable source of legal authority in the United States District Courts.”[4]

And in Columbus Bar Association v. Farmer, a lawyer took over a criminal appeal from another lawyer. He told the client that the appellate brief ﬁled by the previous lawyer “wasn’t worth the paper it was written on,” and withdrew it. But he then ﬁled a brief the court described as “a nearly verbatim recasting of his predecessor’s brief.” His two-year suspension for plagiarism was upheld by the Ohio Supreme Court—though the suspension could be reduced to one year if he refunded all but $1000 of the fee collected in the case.[5]

A new view of plagiarism

In a 2019 law-review article, legal-writing Professor Andrew Carter of Arizona State proposed a bold thesis: Plagiarism of previously written legal briefs by practicing lawyers should no longer be considered a violation of professional norms. (Academic plagiarism is a different matter, he says).[6]

Professor Carter accurately reports that courts in the United States consistently enforce a strong professional standard against plagiarism in legal briefs (see the two cases above). However, although courts condemn plagiarism as “reprehensible” and “wholly intolerable,” they rarely provide a clear rationale for why plagiarism deserves such severe sanctions. Instead, they treat plagiarism as an inherently immoral act, assuming that its prohibition requires no further justification.

In reality, Carter opines, the courts are mistaken. Plagiarism of a previously submitted legal brief violates no universally accepted moral code. Moreover, when we remove moral considerations, it becomes challenging to identify any benefits served by the courts’ prohibition of plagiarism. Carter then argues that if plagiarism of filed briefs were acceptable, society would see certain benefits.

We could increase access to justice if high-volume, low-resource practitioners acting in the public interest were allowed to plagiarize other lawyers’ briefs. In fact, virtually no cognizable harm would arise, and tremendous good might be achieved. Ultimately, Carter concludes, if we consider advantages gained through plagiarism, the argument is strongly in favor of regarding it as a legitimate method for crafting legal briefs.[7]

Carter’s thesis is controversial. What do you think?

_____

[1] In re Zbiegien, 433 N.W.2d 871, 872, 877 (Minn. 1988).

[2] In re Harper, 645 N.Y.S.2d 846, 846-48. (App. Div. 1996).

[3] In re Lamberis, 443 N.E.2d 549, 550, 553 (Ill. 1982).

[4] United States v. Sypher, 2011 WL 579156, at *3 n.4 (W.D. Ky. Feb. 9, 2011), aff’d, 684 F.3d 622 (6th Cir. 2012).

[5] Columbus Bar Association v. Farmer, 855 N.E. 2d 462, 465, 473 (Ohio 2006).

[6] Andrew M. Carter, The Case for Plagiarism, 9 UC Irvine L. Rev. 531, 535 (2019).

[7] Id. at 554.

Readability of Briefs

Two empirical studies

This post discusses two studies of appellate-brief writing that reached different conclusions and call for different explanations.

The first study scored nearly every merits brief submitted to the U.S. Supreme Court from 1969 to 2004 using four readability-assessment tools,[1] two of which are described here.

The Flesch Reading Ease Scale:

uses sentence and word length to assess readability and assigns a score: zero to 30 is “very difficult,” while 90 to 100 is “very easy,” and 60 is “plain English.”[2]

The Flesch-Kincaid Grade Level:

reports the number of years of formal education a reader needs in order to understand the text: 12 means a high-school graduate, 16 means a college graduate, and 19 means a law-school graduate.

For the time period assessed, U.S. Supreme Court briefs averaged a Flesch Reading Ease score of 35 (difficult) and a Flesch-Kincaid Grade Level of 14 (sophomore in college).

Also, during that time period, the grade level of Facts sections moved from 15 to 12—becoming simpler. The grade level of Argument sections moved from 14 to 13—again, becoming simpler. And the readability score for Argument sections moved from 33 to 39—becoming more readable.[3]

What does this trend to simpler, more-readable writing mean? Does it represent “the dumbing of America”? Should we conclude that even Supreme Court advocates are incapable of writing complex, sophisticated prose?

No. Given the high caliber of attorneys writing briefs to the Supreme Court, I draw a different conclusion. These advocates understand that a readable brief, written as simply as possible given the complex subject matter, will be more persuasive and engaging. It’s a good reminder for all legal writers.

The second study assessed briefs to the New York Court of Appeals from 1969 to 2008, and it relied on the tools already described: the Flesch Reading Ease Scale and the Flesch-Kincaid Grade Level.[4] But this study didn’t have good news.

Based on scores by decade (1969-78, 1979-88, 1989-98, 1999-2008), the average Flesch Kincaid Grade level moved from 13 to 14—becoming less simple, and the average Flesch Reading Ease Score moved from 42 to 32—becoming less readable.[5] The author was dismayed by these results in part because the time period, 1969-2008, roughly corresponds with a trend toward more and better legal-writing instruction in U.S. law schools.

Does this mean that legal-writing teachers, like me, aren’t making writing better—we’re making it worse? I took that pretty hard. I wanted a different explanation, and I think I found one.

Granted, when viewing the numbers by decade, you see a trend to less simple, less readable legal writing. But if you view the numbers by year, you see that there probably isn’t a clear trend.

In fact, when viewed by year, the numbers fluctuate widely and almost annually. For example, the grade level for 1990 is 8, but for 1996 it’s 16. From legal writing an 8th grader could understand to writing that would require a college graduate—in 6 years? It’s hard to explain.[6]

The readability scores rise and fall in a similar way. The score for 1981 is 52 (a high score for legal writing) but drops to 40 (difficult) in 1982. It then moves back up to 52 in 1990 but drops to 30 (very difficult) by 1993.[7]

In fact, the author’s charts that report scores by year look like up-and-down zig zags without (to me) a clearly discernible trend.

So here’s my explanation: briefs to the U.S. Supreme Court are produced by a fairly small and highly sophisticated group of appellate attorneys, and their writing gets better—simpler and more readable—over time. Briefs to the New York Court of Appeals come from a wider range of attorneys with a wider range of experience and skill, and their writing shows no definite pattern of improvement.

Now I feel better.

_____

[1] Brady Coleman & Quy Phung, The Language of Supreme Court Briefs: A Large-Scale Quantitative Investigation, 11 J. App. Prac. & Process 75, 76 (2010).

[2] Rudolf Flesch, How to Write Plain English 25 (1979).

[3] Coleman & Phung at 98, 99 (numbers rounded).

[4] Ian Gallacher, When Numbers Get Serious: A Study of Plain English Usage in Briefs Filed Before the New York Court of Appeals, 46 Suffolk U.L. Rev. 451 (2013).

[5] Id. at 465, 472.

[6] Id. at 472.

[7] Id. at 466.

Grammar in Real Cases

Passives, apostrophes, and commas

Legal writers should always aim for grammatically correct prose. Why? To me, the key reason is to establish and maintain credibility: When readers see that you know how to write correctly, they are also likely to believe that you stated the facts and law correctly and presented accurate, valid arguments, explanations, or advice.

But occasionally, grammar itself becomes an issue in a case. Here are some grammatical matters that made it into caselaw, including one that made headlines. For the first three examples below, I thank Professor Diana Simon and her excellent book, The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing published by Carolina Academic Press in 2022.

Although using the passive voice is not a grammar error, using it unwisely can have bad consequences. In one case, a due-process claim written in the passive voice failed to identify who did the “assuring” in the following statement from the complaint: “she was assured that she would continue on the job as long as she performed satisfactorily.” As a result, the judge dismissed that claim.[1]

In another case, a lawyer used apostrophes inconsistently in a settlement offer before trial—sometimes Plaintiffs and sometimes Plaintiff’s. The court said, “The offer was apostrophe-challenged, creating ambiguities ….” Thus, the offer failed to satisfy the particularity requirement, and the court reversed an award of attorney’s fees.[2]

One case involved a comma splice—joining independent clauses with only a comma when a period, semicolon, or conjunction is called for. A federal district judge, attempting to apply state law, noted, “The Supreme Court of South Dakota first recognized a cause of action for insurance bad faith in [Champion]. The published version of the Champion case unfortunately … employed a comma splice in a key passage, creating a confusing standard.”[3]

And then there’s a serial-comma case that made some headlines in 2018.[4] Under Maine law, overtime-wage laws do not apply to—

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: [certain products].[5]

The question:

Is “packing for shipment” one activity, and “distribution” a separate activity?

That would be correct if there had been a serial comma after “shipment.”

Or is the activity, “packing for shipment or distribution”?

That would be correct if the drafter was a practitioner of the serial comma but had intentionally omitted it because “packing for shipment or distribution” was intended to be a single activity.

The specific question before the First Circuit was about truck drivers: if distribution is a separate activity, drivers are not entitled to overtime pay. But if the activity is “packing for shipment or distribution,” the drivers are entitled to overtime pay because drivers don’t pack; they distribute.

The court declined to apply Maine’s Legislative Drafting Manual, which calls for omitting the serial comma—a common approach, especially in journalism. That would have made “packing for shipment” a separate activity from “distribution,” and the drivers would not be entitled to overtime pay.

Instead, the court relied on parallelism, pointing out that the listed activities were all gerunds (-ing) except for distribution, and as a result, distribution was not a separate activity, but a part of the “packing” activity.

Treating “packing for shipment or distribution” as a single activity means that the list lacked a conjunction. Thus, the “or” in “packing for shipment or distribution” was part of that single activity and could not serve as the conjunction for the larger list.

Can you have a list without a conjunction before the last item, even if you don’t use a comma?

Yes, you can, although doing so is a rhetorical technique called “asyndeton.” Asyndeton means creating a list but omitting the coordinating conjunction: The flag is red, white, blue (omitting “and”). So although the court expressed some distaste for the idea, it implicitly accepted asyndeton as a legitimate drafting practice.[6]

_____

[1] Ponder v. Cnty. of Winnebago, 2021 WL 3269842, *7, *12 (N.D. Ill. Sept. 30, 2021).

[2] Bradshaw v. Boynton-JCP Assocs., 125 So. 2d 289, 289, 290 (Fla. Dist. Ct. App. 2013).

[3] Anderson v. W. Nat. Mut. Ins. Co., 857 F. Supp. 2d 896, 903 (D.S.D. 2012).

[4] An Expensive Dispute About Serial Commas, ABA Journal (May-June 2018) https://www.americanbar.org/groups/real_property_trust_estate/publications/probate-property-magazine/2018/may-june-2018/an-expensive-dispute-about-serial-commas/

[5] Me. Stat. tit. 26 § 664(3)(F).

[6] O’Connor v. Oakhurst Dairy, 851 F.3d 69, 71, 73, 76, 80-81 (1st Cir. 2017).

Use Word’s Navigation Pane to Improve Organization

I like to use the Navigation Pane in Microsoft Word to help me with large-scale organization. Here’s a step-by-step guide and then an example.

First, you need to be using Styles in Word. Here’s my brief guide to using Styles. Now, open a document in which you’ve used Styles to create headings. Then—

1. Click the View tab

2. Look for the option that includes Ruler, Gridlines, and Navigations Pane:

3. Check the box for Navigation Pane, so your screen should look like this:

4. Focus on the left-side Navigation Pane, which shows all the headings you’ve created in your document. It’s clickable and collapsible.

5. Read through all your headings, subheadings, and sub-subheadings—or do what I did: take a screenshot of it, print it out, and read it on paper.

You’re looking for anything related to the organization:

Are my main topic headings in the right order? A good order?
Are my headings parallel? That is, are all the headings or subheadings that are at the same outline level structured the same way? All complete sentences, for example.
Does the entire set of headings form a coherent outline?

Here’s a picture of the screencaptured Navigation Pane from one of my writing projects. You can see that I made notes on it, and I then made those edits to the headings in the document.