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."

A Flowing Statement of Facts

Using topic sentences and headings

My books: Legal Writing Nerd and Plain Legal Writing

Many lawyers write memos, trial and appellate briefs, or briefs in administrative matters, and those documents contain a section called the Statement of Facts. Naturally, a Statement of Facts should be credible, ethical, and persuasive, but it should also flow—guiding the reader through the events in an easy-to-follow, coherent way. To accomplish those goals, legal writers can use two basic yet effective tools: topic sentences and headings.

Dates aren’t topics. I’ve seen Statements of Facts in which the first sentences of a series of paragraphs all begin with a date. The practice sometimes continues for three, four, or five paragraphs in a row. For example, three consecutive paragraphs might begin like this:

  • On September 30, 2019, …
  • On December 17, 2019, …
  • On February 22, 2020, …

Two problems: First, it’s common advice to omit a flurry of dates. “Avoid over-chronicling—most dates are clutter,” says Judge Mark Painter. “We don’t know what … if any, dates we should remember.”[1] Second, even when dates are relevant, they’re usually not important enough to justify giving them primary placement. When you begin a paragraph with a date, you’re implying that the date is important—topical. That’s usually not true.

So write a topic sentence that encapsulates the main idea of the paragraph. If you need chronology, work the date in later or use relative-time references:

  • BK Events catered a successful party for Mesa, Inc. in September 2019….
  • Three months later, Mesa contracted with BK to cater another party in May 2020….
  • Ultimately, in light of the Covid-19 pandemic, Mesa sought to cancel the contract on February 22, 2020….

Witnesses aren’t topics. I’ve seen Statements of Facts in which the first sentences of a series of paragraphs all begin with a name—often that of a witness. In a brief responding to a claim for benefits, three consecutive paragraphs might begin like this:

  • Cynthia Rao examined the claimant and testified that …
  • Robert Eaton, a psychiatrist, examined the claimant on …
  • Chris Serna, a vocational expert, interviewed the claimant …

Again, two problems: It’s good advice to avoid presenting the facts by witness. “Never include the deadly witness-by-witness summaries of testimony that some brief-writers favor,” says Judge William Whitbeck.[2] More to the point, the witnesses are rarely the topics you’re writing about, and if they aren’t, they don’t deserve primary placement.

Rather than giving witness names prominence in the opening sentence, create true topic sentences. Here, you could use the impairments that the claimant alleges, and other topics as appropriate. It might look like this:

  • The claimant asserted a physical impairment based on lumbar spinal stenosis….
  • A second alleged impairment, based a depressive disorder, relied on the testimony of psychiatrist Dr. Robert Eaton….
  • Yet a vocational expert testified that reasonable opportunities for work existed in the national economy….

For readability and flow, topic sentences often work better than focusing on dates and names.

Try headings. If the Statement of Facts is long or complex, you can aid the reader and improve the flow with headings. After all, few of us want to read long, unbroken blocks of text. You can use short topic headings with boldface text, initial capitals, and no punctuation:

  • Background
  • Previous Claims
  • Alleged Impairments

You can use point headings, too—typically boldface assertions using sentence case and ending with a period:

  • The psychiatrist’s testimony rebuts the claimant’s asserted impairment based on a depressive disorder.

Both techniques, topic sentences and headings, require thought and effort by the writer, but they pay off with a more readable and persuasive Statement of Facts.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Judge Mark Painter, The Legal Writer: 40 Rules for the Art of Legal Writing 33 (2d ed. 2003).

[2] Quoted in Bryan A. Garner, Judges on Briefing: A National Survey, 8 Scribes J. Legal Writing 1, 26 (2002).

Visuals in Briefs, part 3

Getting started—simply

Two previous columns discussed visuals as valuable tools for persuasion in briefs and how brief writers could overcome obstacles to using visuals. This month I offer some practical tips for using visuals and some simple ideas for creating them.

Two experienced practitioners-turned-legal-writing professors have written an excellent article full of good advice: “Art”-iculating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, by Steve Johansen and Ruth Anne Robbins.[1] They helpfully divide visuals into three categories: Organizational visuals such as bullet lists, timelines, and tables—even the Table of Contents; interpretive visuals such as flow charts, pie charts, and Venn diagrams; and representative visuals such as images and maps. They then ask writers to imagine the legal argument visually and identify what type of visual would aid the reasoning.[2]

Once you’ve decided to use a visual, Johansen and Robbins say it’s worth assessing where the visual falls on a “usefulness” continuum. On one end are merely decorative visuals—eye-catching but with limited connection to the substance. On the other end are visuals that present content connected to the facts or law.[3] Nix purely decorative visuals; visuals that contribute to the substance go in. I also recommend this article: Adam L. Rosman: Visualizing the Law: Using Charts, Diagrams, and Other Images to Improve Legal Briefs.[4]

Some simple examples of graphics

Last month I mentioned two reasons that some brief writers don’t use visuals: creating them can be difficult and time-consuming. So let’s start simple. Here are two ways to use one type of visual—images—in briefs, as recommended by respondents to my survey:

  • I mostly use screenshots of the contractual or other language I’m interpreting.
  • Many of mine are labeled photos—essentially, evidentiary documents but placed in the body text rather than in an appendix.

If using an image strengthens your case, do it.

Using a table is another way to start trying visuals, and tables are simple to create.

For example, you might display the defendant’s corporate officers in a two-column table. The information is more quickly and easily grasped than if it were conveyed in textual format—especially if the list is long.

Text: The corporation’s officers were as follows: The president was Chris Smith, the Vice President was Cory Chung, and the Secretary was Jamie Acosta.

Visual: The corporation’s officers were as follows:

In an administrative-hearing brief, one writer needed to apply a 12-factor test to a nurse’s conduct. A two-column table worked well, with the factors described in the left-column cells and the analysis provided in the corresponding right-column cells. It’s a good example of a visual that makes digesting the analysis easier when compared to a traditional-text format.

The following table appeared in a response to a plaintiff’s motion to consolidate. It was the writer’s attempt to emphasize that although the same party owned the apartment-complex phases at issue, the buildings, subcontractors, and materials differed, and the two cases would not rely on the same evidence.

Once you’ve mastered basic tables, a timeline is a good challenge. Here’s a basic example:

I hope these examples give you some ideas. Ultimately, it’s up to you to consider the facts and analysis and decide if a visual is right for your brief. Think creatively, get some help, improve your skills, and recognize that judges are favorably disposed to visuals. Then try it.

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[1] Steve Johansen & Ruth Anne Robbins, Art-iculating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 J. of the Leg. Writing Inst. 57 (2015)..

[2] Id. at 67.

[3] Id. at 69.

[4] Adam L. Rosman, Visualizing the Law: Using Charts, Diagrams, and Other Images to Improve Legal Briefs, 63 J. Leg. Educ. 70 (Aug. 2013).

Visuals in Briefs, part 2

In my survey of practicing lawyers, 30% said they rarely or never use visuals in briefs. Here are the top three reasons for not using visuals:

  1. My practice area doesn’t lend itself to visuals.
  2. I’ve never heard a judge recommend visuals.
  3. Creating visuals is time-consuming and difficult.

Let’s take these one at a time.

(1) If your practice doesn’t lend itself to visuals, then you’re not avoiding them because they don’t work at all; you’re avoiding them because they don’t work for the cases and issues you handle. Declining to use visuals is therefore an exercise of editorial judgment. That’s what legal writers should be doing.

The individual comments in the survey reflect the reality that good writers know their content, context, and audience and make decisions about visuals accordingly:

  • “I cannot see how visuals would meaningfully improve briefing in my case area (debt collection and debt defense).”
  • Most of my work involves day-to-day motion practice (e.g., motions to compel) that does not call for visuals.”
  • “The issues in my cases rarely lend themselves to persuasive visual display.”

I’m inclined to trust these lawyers and their judgments about their own cases.

(2) Actually, a few judges are recommending the use of visuals in briefs. The legal-writing expert Ross Guberman offers the following unattributed quotations from judges:

  • “Sometimes a timeline is clearer than an essay format.”
  • “The use of pictures, maps, and diagrams not only breaks up what can be dry legal analysis; it also helps us better understand the case ….”
  • “When a case involves analysis of a map, graph, or picture, I would like to see attorneys include a copy of the picture within the analysis section of the brief.”[1]

Judge J. Nicholas Ranjan, of the United States District Court for the Western District of Pennsylvania, offers the following advice on his website:

  • Use visual devices and tools to make things easier on your reader. … [Use] charts and graphics and timelines. For example, in a case where the timing of events is critical or convoluted, consider creating a timeline in the fact section.”[2]

In addition to the supportive statements quoted here, after posting my survey about visuals, I received two email messages from judges, saying that they appreciate the use of visuals in briefs and pointing out that they use them in their own opinions and orders.

Still, there’s no large, loud chorus of judges calling for more visuals. Yet 46% of those who rarely or never use visuals said that they would be persuaded to use them if judges recommended the practice. So if you’re a judge reading this, and you appreciate visuals, say so—publicly.

Besides judges’ recommendations, at least one other factor would encourage more writers to use visuals in briefs. One third of the survey respondents said they would be persuaded to use them if colleagues or leading practitioners recommended the practice. So if you’re a visuals-using writer reading this article, recommend the practice to others.

(3) Finally, 9% of survey respondents who rarely or never use visuals in briefs gave as a reason that using them was difficult and time-consuming. Here are some of the individual comments:

  • “Limited software skills.”
  • “Need software training.”
  • “Software to make it easier for me to design the graphics.”
  • “A quicker way to get them done.”
  • “Need to be easy to create, format, and insert.”
  • “Greater technological ease-of-use.”

This post can do little to remedy these problems, but I have some suggestions: assign visuals creation to others with the expertise, seek out training and education on creating and using visuals, and invest in newer or better software.

Besides, some of us might be thinking too grandly about “visuals.” In part 3, I’ll discuss some practical tips for using visuals in briefs, offer some simple ideas for creating visuals, and recommend additional resources.

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[1] Ross Guberman, Judges Speaking Softly, 44 Litigation 48, 49-50 (Summer 2018).

[2] Judge J. Nicholas Ranjan, Judge Ranjan’s Brief-Writing Preferences, at 2, https:/​/​www.pawd.uscourts.gov/​sites/​pawd/​files/​Ranjan_writing_tips.pdf.

Visuals in Briefs, part 1

Visuals can be valuable tools for persuasion in briefs.

Legal writers should use visuals as persuasive tools in their documents, and it’s already happening: In my survey of 133 lawyers, 70% said they frequently or sometimes use visuals in briefs. The survey targeted writers of persuasive documents at an initial-dispute stage: trials, administrative hearings, arbitrations, and others.

This article displays a simple pie chart showing the answers to survey question 2: “In writing briefs or other persuasive documents, do you ever use visuals: graphics, images, charts, tables, illustrations, and so on?

In part one of this series, I’ll discuss the recommendations in favor of visuals from experts and practicing lawyers.

As the survey results show, many legal writers are already using visuals in briefs. That only makes sense because those who research and write about using visuals have been recommending the practice for several years. Here are two experienced practitioners in 2019:

  • “Using images in briefs can be an effective tool for both catching and keeping the attention of a ‘wired’ judge or clerk and for increasing the persuasive force of your legal argument.”[1]

Here’s a 25-year in-house lawyer, writing in 2013:

  • “Well-crafted images—charts, diagrams, photographs—can make your briefs more interesting and persuasive ….”[2]

No, the written word isn’t dead, said two legal-writing professors in 2015, but “[a]s legal writing moves toward a more digital medium, it is time for lawyers to incorporate visual persuasion into their documents.… [Visuals users] are advancing legal writing in a positive direction.”[3]

My survey produced some supporting recommendations as well. In responding, writers could choose from a list of the potential benefits of visuals, and here are the top three responses:

  1. Sometimes visuals can convey concepts that text cannot;
  2. Sometimes using visuals is easier than describing something in the text; and
  3. Visuals add persuasive force to the document.

Survey respondents could also add comments, and there were several strong endorsements:

  • “Using graphics, charts, etc. can be very helpful to a brief and the judge’s understanding of the issues.”
  • “I use tables and charts as often as it makes sense. When I was clerking, I found graphics in briefs to be generally helpful. One table compared specific allegations in the complaint with what the plaintiff had ultimately presented on that point after discovery. The discrepancies were already glaring, but the table really nailed it.”
  • “I use tables and charts when they help organize the information: with multiple parties and I’m trying to display the differing facts about each one, in discovery disputes—breaking down the disputed-information categories, for financial information, and in timelines.”
  • “In a case with multiple claims and multiple defendants, I created a table in which each row was a specific claim against a specific defendant. In the columns, I briefly explained why that claim failed and cited a key case.”

To these endorsements we can add the obvious point that lawyers have used visuals for live trials and hearings for many years. It’s taken for granted that photos, maps, charts, and other visuals have a strong persuasive impact on judges and juries. So it’s not surprising that the same is true for briefs.

Yet 30% of my survey respondents said that they rarely or never use graphics in briefs. Why not? I’ll address that in the next part of this series.

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[1] Emily Hamm Huseth & Michael F. Rafferty, A Picture Can Save a Thousand Words: The Case for Using Images in Appellate Briefs, For the Defense 22, 23 (Feb. 2019).

[2] Adam L. Rosman, Visualizing the Law: Using Charts, Diagrams, and Other Images to Improve Legal Briefs, 63 J. Leg. Educ. 70, 70 (Aug. 2013).

[3] Steve Johansen & Ruth Anne Robbins, Art-iculating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 J. of the Leg. Writing Inst. 57, 59, 60 (2015).

Leave Behind These Words and Phrases


Here are nine legal words and phrases we can do without.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It

This post is part of my effort to pull legal vocabulary into 2020. We certainly don’t need to sound as though we’re writing in 1908, let alone 1708. So here are a few legal words and phrases we can leave behind.

comes now

A lawyer once asked me to settle a debate at the office: “If there’s one plaintiff, it’s ‘COMES NOW Rodney Jackson, …’ But if there are two plaintiffs, shouldn’t it be ‘COME NOW Rodney and Melinda Jackson, …’?” Of course, I replied that the correct answer was to stop beginning pleadings with this archaic phrase. And drop the ALL-CAPS.

Yet more than a dozen lawyers have told me over the years that they choose to retain comes now in court filings. Why? The convention is so deeply entrenched, they say, that omitting comes now could make them look like novices—like lawyers who don’t know how things are done. I grant the concern but it saddens me a bit.

hereinabove, hereinafter

Almost all the here– words should go (herein, hereto, hereby, etc.) but these two are the most annoying. They’re old, they’re often vague, and they’re multi-syllabic. The legal-word expert Adam Freedman says that they arose from “experimentation. Lawyers and other literate folk enjoyed nothing better … than inventing new words by putting together two or more old ones.”[1] Sometimes you can just omit them, sometimes you can use above and below, and sometimes you can specify what you’re referring to and where to find it.

inter alia

Latin phrases that aren’t terms of art, as this one isn’t, ought to be dropped: vel non, sub judice, sua sponte, and others. Use an everyday-English equivalent: and others, among others, or among other things.

instant case

I still remember the sad look on a third-year student’s face when I suggested that he use this case, the current case, the Jackson case, or even here in place of the instant case. “But the instant case sounds so … legal,” he said. All right. It’s often important for a novice to “sound legal.” But an experienced lawyer can abandon archaic language.

trix suffix words: administratrix, executrix, prosecutrix, testatrix

In 1992, a legal-language expert named David Mellinkoff said these forms were “dying.”[2] We can no longer wait around. Kill them off now. They’re sexist, archaic, and hard to pronounce.

in witness whereof

Harmless—but go ahead and delete this phrase from your form document.

wherefore, premises considered

Standard—but what does it mean? If it means “In light of everything just stated …” why not use “Therefore …”?

know all men by these presents

I’ll let someone else handle this one: Anyone who uses this phrase is an “unregenerate dinosaur” according to legal-drafting expert Ken Adams.[3]

witnesseth

This word has no place in modern legal drafting. If you prepare transactional documents, and you’re afraid to take it out, be brave. And look it up: you don’t have to take my word for it. Bryan Garner calls it an “antiquated relic.”[4]

For further guidance on outdated and useless legal words, see

  • Kenneth A. Adams, A Manual of Style for Contract Drafting
  • Adam Freedman, The Party of the First Part: The Curious World of Legalese
  • Bryan A. Garner, Garner’s Dictionary of Legal Usage
  • David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage
My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It

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[1] Adam Freedman, The Party of the First Part: The Curious World of Legalese 25 (2007).

[2] David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage 600 (1992).

[3] Kenneth A. Adams, Know All Men By These Presents, Adams on Contract Drafting, https://www.adamsdrafting.com/​know-all-men-by-these-presents/

[4] Witnesseth, Black’s Law Dictionary 1839 (10th ed. 2014)