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."

Creating Shorthand References (hereinafter “CSR”)

Advice for creating shorthand references

My books: Legal Writing Nerd and Plain Legal Writing

In legal documents, we sometimes need to create shorthand references for recurring names. For example, it’s not unusual for a legal document to begin like this:

Plaintiffs Roger T. Howard (hereinafter “Howard”) and Leticia Howard (hereinafter “Leticia” and, together with Howard, the “Plaintiffs” or “Howards”) brought this action against and Southern National Bank (hereinafter “SNB”) and Green Fields Agricultural Company (hereinafter “GFAC”).

That’s a cluttered paragraph, but it’s not unusual. Sometimes lawyers are guilty of “painstakingly (and painfully) shortening every label on the landscape. Such a practice invites ridicule, especially after six or seven names have been defined, names that could never be confused with any others anyway.”[1]

That’s why some legal-writing experts say that creating shorthands with a parenthetical isn’t even necessary.[2] These rebels note that journalists and other writers would never do this:

President Joe Biden (the “President” or “Biden”) is expected to speak at a Memorial Day observance in Delaware this weekend….

I agree with these experts, but I’ve been unable to persuade many lawyers of this view. They say that there’s typically more at stake in a legal document (rights, duties, money, liberty) than in a news article, and legal documents place a high value on precision. So it’s natural that legal documents would contain shorthand references, and in this column I offer guidelines for creating them.

Drop the archaic word hereinafter. Simply give the full term and then the shorthand, like this: Southern National Bank (“SNB”).

Some writers drop quotation marks from the parenthetical, asserting that the defining purpose is obvious.[3] Others retain them—to clarify that the parenthetical is a defining one and not a parenthetical used for some other purpose. My view: retaining quotation marks is harmless.

Don’t create a shorthand and never use it—which happens more often than it should. Of course, it results from one of two causes: the habit of shorthanding everything upon first use without checking for subsequent use; and the result of edits that remove later uses. So as part of a thorough edit, do a search for every shorthand you’ve created. If only one shows up, delete it.

Generally avoid alternative shorthands: Roger T. Howard (“Howard” or “Plaintiff”). It’s like saying, “I’m not going to be careful, so you keep track.” Alternative forms likely arise when the writer use a form document and doesn’t want to search and replace. Do the replacing.

If the client, person, or party refers to itself in a certain way, use that form—don’t make up your own. If Green Field Marketing Company refers to itself as “GFMC,” use that. But if the company refers to itself as Green Field, use that. Don’t create unnecessary initials, although initials have their uses.

Suppose the document mentions Southern National Bank, Southern Mortgage Company, and Southern Real Estate. You could use those full names throughout—it wouldn’t be the end of the world—but you might need initials: SNB, SMC, SRE. And what if two people have the same surname? A common convention is to use given names: Roger and Leticia. Of course, using Ms. Howard and Mr. Howard is fine if the parties are spouses.

Legal writing (“LW”) already abounds with initials and acronyms (“IA”), so when you have a choice, default to words. Naturally, use well-recognized initials (NCAA, CBS) and acronyms (CERCLA, ERISA); otherwise, try to use use words. If the party is Southern National Bank, the short form “Southern” is easier to read than “SNB.”

A final tip: Try to avoid larding the opening paragraph with a half dozen defined terms. It’s actually okay to create a shorthand on the second reference. Use the opening paragraph to set the stage, provide background, or summarize your purpose.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Karen Larsen, The Miss Grammar Guidebook 42 (Oregon State Bar 1994).

[2] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 268 (2003); Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 139 (2002).

[3] Louise Mailhot & James D. Carnwath, Decisions, Decisions: A Handbook for Judicial Writing 37 (1998).

Clearly, you should really avoid adverbs

The best-selling author Stephen King hates adverbs and advises writers not to use them:

The adverb is not your friend. Adverbs … are words that modify verbs, adjectives, or other adverbs. They’re the ones that usually end in -ly. With adverbs, the writer usually tells us he or she is afraid he/she isn’t expressing himself/herself clearly, that he or she is not getting the point or the picture across.

I believe the road to hell is paved with adverbs, and I will shout it from the rooftops. To put it another way, they’re like dandelions. If you have one on your lawn, it looks pretty and unique. If you fail to root it out, however, you find five the next day… fifty the day after that… and then, my brothers and sisters, your lawn is totally, completely, and profligately covered with dandelions. By then you see them for the weeds they really are, but by then it’s—GASP!!—too late.

Three points:

First, King writes fiction, and I focus on legal writing, but still, plenty of lawyers have quoted King on adverbs. Second, all the highlighted words in those quotations are adverbs. (But maybe King was being facetious with the green words?)

And third, on  just the first page of one of his short stories, King used 10 adverbs:

  1. finally
  2. ever
  3. across
  4. utterly
  5. listlessly
  6. slowly
  7. finally
  8. doubtfully
  9. flat (as in “it fell flat”)
  10. periodically

What should we make of this? That people exaggerate? That people often ignore their own advice? That people offer advice that applies to others but not to themselves? That advising against adverbs is common writing advice, so people spout it without really thinking?

Sentence length

Managing averages and maximums

My books: Legal Writing Nerd and Plain Legal Writing

Legal writing has a bad reputation for long sentences. Why?

Maybe reading cases in law school starts us off poorly. After all, the cases in casebooks weren’t chosen because they were beautifully written. Plus, legal writers often face short deadlines and might end up sacrificing some editing. And legal writers address complex matters—matters requiring explanation, qualification, and clarification.

But we can do better.

First, we can let go of the thought that a concept and everything that qualifies that concept must be in a single sentence:

[Lawyers] think that in order to achieve clear understandings, they must stuff every related idea into a single sentence between an initial capital letter and a final period. They are, of course, wrong.[1]

Second, we can educate ourselves. Here’s what the experts say about average sentence length and maximum sentence length.

Average sentence length

What’s a good average length? The experts say—

  • “below 25 words”—Richard Wydick[2]
  • “about 22 words”—Laurel Currie Oates & Anne Enquist[3]
  • “about 20 words”—Bryan Garner[4]

That’s the average—some shorter, some longer. All the experts quoted above agree that variety in sentence length is important. And when you write about complex subjects, push the length down: “The basic rule is this: The more complicated your information is, the shorter your sentences should be.”[5]

You can program Microsoft Word to tell you your average sentence length. Go to File and select Options and then Proofing. Check the box for “Show Readability Statistics.” Now, after a spell-check, you’ll see a display that includes your average sentence length, along with other information. (Note: a document with legal citations will usually show a shorter-than-actual average sentence length because of all the abbreviations and periods.)

Now ask yourself these questions: Is my average sentence length appropriate for the subject and the audience? Are all the sentences about the same length, or do I have good variation? Do I have too many short sentences, so that my writing is choppy? Based on your answers, edit your sentences.

Maximum sentence length

How many words is too long for one sentence? It’s a tough question, and the experts don’t offer much guidance. Here’s mine.

Are you confident you could write a readable, clear sentence of more than 45 words? I’m not sure I could, so that’s the limit I apply to my own writing. Of course, some gifted writers can create long sentences that are pleasant to read; they usually use lengthy parallel phrases in a series. That technique works well in literature. But for most of us doing legal writing, staying under 45 words will work better. When I write a single sentence that goes over 45 words, I usually break it up.

But it’s not realistic for a busy legal writer to count words while writing. When you’re writing your first draft, let your creative mind produce the text without interference from your internal editor. Let the text—and the ideas—flow.

Then shorten long sentences on the edit. When you encounter a single sentence that bogs you down, tires you out, or annoys you, highlight it and look at the word count. If the word count is over 45, re-work the sentence or break it up.

Those are the three goals for sentence length: readable average length, variation in length, and nothing too long.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Ronald L. Goldfarb & James C. Raymond, Clear Understandings: A Guide to Legal Writing 47 (1982).

[2] Richard Wydick, Plain English for Lawyers 36 (6th ed. 2019).

[3] Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 523 (5th ed. 2010).

[4] Bryan A. Garner, Legal Writing in Plain English 47 (2d ed. 2013)

[5] Steven D. Stark, Writing to Win: The Legal Writer 46 (2012).

Research on Persuasive Legal Writing

Three recent projects

My books: Legal Writing Nerd and Plain Legal Writing

When I first learned about persuasive legal writing, the advice was simple: avoid lying, follow the rules, reduce errors. Today, we have science, and many authors are publishing research studies that try to define persuasive legal writing scientifically. I summarize three here.

Brady Coleman and Quy Phung assembled a database of U.S. Supreme Court briefs filed from 1970 to 2004 and performed some calculations: they used the Flesch Reading Ease Scale, which assigns a readability score from zero (extremely difficult) to 100 (very easy); they also used the Flesch-Kincaid Grade Level, which assigns a number representing the years of education the reader would need to read the text comfortably (12 = high school graduate, 16 = college, etc.)

Their data show that U.S. Supreme Court briefs are becoming more readable. During the period of their study, they found that—

  • the Argument section’s readability increased from 33 to 39.
  • the Argument section’s grade level moved from 15 to 12.
  • the Statement of Facts’ grade level moved from 14 to 13.[1]

I’m not willing to believe that these briefs became “simpler” because the writers got dumber. Instead, I think lawyers are learning that readable briefs are more persuasive.

In another study, Shaun Spencer and Adam Feldman reviewed 654 summary judgment motions—trial briefs. They scored the briefs with 50 readability measures, assessing word difficulty as well as syllable, letter, and sentence counts, and they produced a readability score for each brief.

After controlling for multiple factors, internal and external to the briefs, the authors found that a brief’s readability was significantly correlated with success at summary judgment. Meaning: the easier your brief is to read, the more likely it is that you’ll win. The correlation was even stronger in federal court than in state court.

Specifically, if the moving party’s brief was significantly less readable than the nonmoving party’s brief, the moving party had only a 42% chance of winning. But if the moving party’s brief was significantly more readable than the nonmoving party’s brief, it had an 85% chance of winning.[2]

I should mention that you can assess the readability and grade level of your own writing. In Microsoft Word, go to File and select Options and then Proofing. Check the box for “Show Readability Statistics.” Now, after a spell-check, you’ll see a display that includes your Reading Ease score and grade level.

Finally, lawyers and legal-writing teachers have long believed that stories are persuasive, and now there’s evidence to prove it. This legal-writing expert, Kenneth Chestek, sent briefs written for a fictional case to 95 judges, clerks, staff attorneys, practitioners, and law professors.

Each reviewer received two briefs. In one brief, the argument had a narrative component—characters who encounter an obstacle and seek to overcome it—plus the legal argument. The other brief advocated for the same party but with only the legal argument; it had no narrative component. The author’s data showed that 64% found the narrative briefs more persuasive.[3] That’s a solid, nearly two-thirds majority in favor of story.

You probably knew this already, but now there’s science: when you need to write persuasively, science tells you to write readably and tell a story.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Brady Coleman & Quy Phung, The Language of Supreme Court Briefs: A Large-Scale Quantitative Investigation, 11 J. App. Prac. & Process 75, 98, 99 (2010).

[2] Shaun B. Spencer & Adam Feldman, Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment Success, 22 J. Leg. Writing Inst. 61, 94 (2018).

[3] Kenneth Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. Assn. Legal Writing Directors 1, 19 (Fall 2010).