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."

Great new book

The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing

by Diana Simon

Professor Diana Simon of the University of Arizona James E. Rogers College of Law has written an entertaining and informative guide to grammar and punctuation for legal writing. I’ve read it cover to cover, and I loved it. It’s a reference—but it’s more. It has solid explanations (the why of grammar and punctuation)—but it has more. It recounts the stories—the real cases—that show that grammar and punctuation matter.

  • The claim dismissed because of the passive voice
  • The deportation case that hinged on a semicolon
  • The failure of a complaint because of apostrophe errors

It’s readable, practical, and engaging. I recommend it to legal-writing faculty, practicing lawyers, paralegals, judges, judicial clerks, and anyone who cares about legal writing.

Look for my book review forthcoming in Legal Communication & Rhetoric: JALWD in spring 2023.

The (Not too Serious) Grammar, Punctuation, and Style to Legal Writing is published by Carolina Academic Press.

 

Readable Contracts Part 4

Archaic legalese

My books: Legal Writing Nerd and Plain Legal Writing

This is part 4 of a series based on the study, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language,[1] in which the authors compared contract language with everyday written English. The series concludes with my comments on a few words found in a 1.1 million-word corpus of commercial contracts. But first, I’ll acknowledge reality.

Lawyers prepare commercial contracts using forms and templates, and that saves time and money. It also provides assurance—risk avoidance. Suppose the form contract has been used in 20 or 30 or 50 other transactions, all of which closed and were performed without litigation. By relying on that form, you avoid risk, reassuring yourself and your client that this transaction, too, will be performed without serious problems. So retaining and re-using forms is a good practice, even if the forms use some archaic legalese.

But may I offer a few suggestions?

The following words are unnecessary because there are everyday equivalents, and some of them cause problems—albeit rarely—so I recommend deleting and replacing them. Parentheses show the number of appearances in the contracts corpus.

aforementioned (15), aforesaid (49)

The main problem with aforementioned is not that it’s a multi-syllabic monster; the problem is that it’s vague. As I said of aforementioned in 2008: “Why use this outdated word when its shorter cousin, aforesaid, is available? I’m kidding. Eliminate them both and specify what you’re referring to.”[2] In addition, the meaning of aforesaid has been construed in reported appellate decisions at least five times.[3]

herein (1093), hereinabove (7), hereinbefore (10), hereinafter (120)

Again, the problem is vagueness. As the legal-language expert David Mellinkoff put it, “Where? This sentence, this paragraph, this contract, this statute? Herein is the start of a treasure hunt rather than a helpful reference. The traditional additives are equally vague: hereinabovehereinbeforehereinafter ….”[4] Also, herein’s meaning has been litigated in at least 11 reported cases.[5]

said (214)

When used as a demonstrative pronoun or “pointing word,” said adds no precision, only a legalistic tone. As the contract-drafting expert Tina Stark says, “Said and such are pointing words. They refer to something previously stated. Replace them with the, a, that, or those.”[6] If “that party” is vague, changing it to “said party” won’t clear it up. And said’s meaning has been litigated 30 times.[7]

whereas (224)

This word appears in the formal, archaic recitals that proceed with a series of paragraphs beginning with “WHEREAS” and conclude with “NOW THEREFORE …” But Kenneth Adams, a leading expert on contract language, doesn’t like whereas: “The recitals serve a storytelling function. They’re the one part of a contract that calls for simple narrative prose. So don’t begin recitals with whereas, as this meaning of whereas—‘in view of the fact that; seeing that’—is archaic.”[8]

witnesseth (21)

At first, I found only 8 occurrences of witnesseth in the contracts corpus, and I was surprised but happy to think that its use was declining. Then I searched for it with a space between each letter: W I T N E S S E T H, and found 13 more. I think it needs to go, and so does the legal-language expert Bryan Garner: “This archaism is a traditional but worthless flourish. … There’s absolutely no reason to retain witnesseth. It’s best deleted in modern contracts.”[9]

Ultimately, retaining these words is probably harmless, but removing them is, too.

My books: Legal Writing Nerd and Plain Legal Writing

_____

[1] Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022).

[2] Wayne Schiess, Ten Legal Words We Can Do Without, Austin Lawyer 6 (May 2008).

[3] 2D Words & Phrases 294 (2020).

[4] David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage 283 (1992).

[5] 19A Words & Phrases 36-37 (2007 & Supp. 2021).

[6] Tina L. Stark, Drafting Contracts: How and Why Lawyers Do What They Do 257 (2d ed. 2014).

[7] 38 Words & Phrases 29-31 (2002 & Supp. 2021).

[8] Kenneth A. Adams, A Manual of Style for Contract Drafting 20 (3d ed. 2013).

[9] Bryan A. Garner, Garner’s Guidelines for Drafting & Editing Contracts 454 (2019).

Student Essay: 1L Legal Writing

A Valuable Lesson

by Adarsh Parthasarathy

I think the most valuable lesson I learned from my 1L writing courses is evidenced in an assignment I’m doing right now for the a public-defender organization. I am writing a memo on jury charge errors and how they might be litigated in state habeas proceedings in Texas with application to a set of facts specific to the client’s case. My initial research has revealed that the issue is extremely complicated, with several competing state and federal standards. The decision of what standard to use depends on several factors, both factual and strategic: whether error was preserved at the trial level, whether the nature of the claim is constitutional in dimension or based in state law, what the nature of the jury error is, and what standards give us the best chance of success given the applicable facts.

As my 1L final memo serves as evidence of, my untrained reaction when approaching a complex legal issue was to break the issue down in several different “roads” and then do a detailed analysis of each “road” with its own “Question Presented,” “Brief Answer,” and “Analysis” pieces. In my 1L year, the issue we were asked to write our final about was whether a defendant can assert any one of four different defenses to a breach of contract claim. These four defenses were chosen intentionally, of that I have no doubt, for although they were all used in Texas law, the effective differences between them from a legal point of view were, in some cases, negligible. The most important lesson of the final memo was therefore likely that the ability to analyze an issue to death is but a stepping-stone to what makes an advanced legal writer: the ability to recognize redundancy in the legal landscape and condense. That is something I failed to do, instead writing a seven-thousand-word memo that treated each of the defenses as separate “roads” rather than recognizing, at some point in my research that, although the roads may start at different places, they merge further along.

It’s pure happenstance that I ended up using my 1L memo document as a formatting template for my current memo assignment. It ended up being good luck; it jogged my memory as to the mistake I made in 1L and forced me to realize that I was making the same mistake two years later. I think that it reveals an important step that I do not remember explicitly being taught in my legal writing courses: that it is important, after doing research on an issue, to see where answers to your initial questions seem the same and where they seem different. It sounds basic when stated like that, but I think that it is against natural instincts to finish researching a legal issue and then pause to re-structure what you’ve found. I feel that the natural instinct is to write in the same structure as your research.

While I am not able to speak to the specifics of my current assignment beyond what I have already described, it suffices to say that there were many tests set out by the courts that “merged” as their analytical steps progressed even if they started at different places. A memo that exhaustively analyzed each path as isolated would have been repetitive. However, an organization that corrals different starting points that lead to the same conclusion ends up being far more efficient and effective.

While I don’t feel that my first-year writing courses set out this lesson explicitly, I think I ultimately learned the lesson from looking at the comments on my final paper and understanding why what I did was not the best way to analyze the issue. I think that the redundancy in the research findings for the final memo is a common problem to run into in legal research and that the lesson should be set out explicitly so that students are better equipped to realize that a potential issue they are likely to confront is a decision as to what distinctions in the law are meaningful and what distinctions are not. That is generally a subject specific judgment, of course, but I believe that it will raise one’s raise one’s awareness to the possibility of such an occurrence to be given examples of this issue in the law (perhaps on the factual sufficiency versus legal sufficiency standards for convictions, which Texas courts have given up defending a distinction between?). Legal writing courses cannot prepare one for the specifics of every issue that one will encounter, but it can at least forewarn students of the variety of issues they may encounter, in a general sense, so that they recognize an issue as it happens and are able to address it in the appropriate context-specific way.

Student Essay: Read the News

Yes, Lawyers Should Read the News. But Not for the Reason You Think.

By Emma Edmund

Bryan Garner’s “A Tale of 2 Associates” includes plenty of examples of how polished legal writing can help a lawyer win a client’s case, but its most notable piece of advice is not on how to write, but what to read.

At the end of Garner’s hypothetical situation, second-year associate Denise tells fourth-year Jim to read The Wall Street Journal and The Atlantic, telling him, “They’re not using any techniques in their nonfiction work that we can’t use in ours.”[1] While lawyers read the news to stay up-to-date on current events, Garner references the vast similarities between general journalism and legal writing, specifically the techniques within the writing that lawyers can adopt.[2] Journalism contains three essential elements that can shape better legal writing: a tone geared toward a wide audience, an inverted pyramid structure designed to maximize information absorption, and a delicate balance between revealing details and keeping stories general.

First, journalists write for a broad audience, and legal writers would benefit from writing with a broad audience in mind. For example, The Wall Street Journal, though writing for an educated and wealthy audience, caters to over 42 million unique visitors per month as of 2017.[3] With an audience that large, newspapers and newspaper schools are quick to teach journalists to write simply and give ample, and, if possible, objective, context to their stories.[4]

Lawyers, however, write for a significantly smaller circle; many legal writing assignments go to a supervisor, client, or judge; these people are intimately connected to the legal community. While other lawyers or clients can make up the bulk of the people who read legal work, lawyers should also note who might else read their writing, including students of all disciplines who read legal writing for assignments, journalists who translate lawsuit-related documents into news articles, and people who research legal problems on the internet and stumble across a law firm’s blog. By anticipating a wide audience, lawyers can train themselves to make their writing more accessible, and they can read newspapers for examples of writing style and structure that incorporate accessibility.

Second, lawyers should study the typical news article structure, also known as the inverted pyramid. General, hard news stories employ the “inverted pyramid” by containing the most essential information in the lede, the necessary context in the second, nutshell paragraph, and details organized from most to least important in the rest of the article.[5] Though the practice originated with journalists nervous about losing a story as it was transmitted over telegraph, current journalists also recognize that readers might not finish the entire story as they scroll through a website or social media channel.[6] The inverted pyramid allows readers to get the most essential elements of the story, even if they don’t finish the article.

Lawyers should implement this structure in select situations. In informal memos and other non-templated legal writing assignments, lawyers can style their writing so that the most important argument or topic comes first, with less relevant information near the bottom. Texas Law promotes this style of writing with its emphasis on the “short answer” at the top of assignments, not only because it prevents confusion if someone stops reading early, but because it also presents a more persuasive, coherent argument.

Finally, news articles provide examples of how to play with details. Legal writing is necessarily detail-oriented, but journalists are tasked with writing 500-word articles that contain essential details while generalizing the rest. Studying what journalists choose to write about and why, versus what they choose to keep out or save for a feature piece, could help lawyers determine how to communicate with the public or a judge through a brief with a tight deadline, informal blogs, LinkedIn posts, tweets, and more. Though many cases come down to the smallest details, most blog posts and other public-facing sites address general topics and issues, and lawyers who read news articles can mimic the level of detail needed to fully convey ideas to a wide range of people.

But lawyers should take journalists’ writings with a grain of salt when studying them for writing techniques—after all, most journalists do not have a J.D. and thus do not know how to write about strictly legal issues. But reading well-respected newspapers and magazines serve a dual purpose: they keep lawyers current on events and allow them to investigate and expose themselves to different types of writing. Lawyers can study how to write for a wider audience, mimic or remix a typical hard news structure, and play with the level of detail in assignments to evolve and shift their style for various needs.

[1] Bryan A. Garner, A Tale of 2 Associates: How Polish and Attention to Detail Can Win the Motion, ABA Journal, June 2014, at 1, 4.

[2] See id.

[3] WSJ.com Audience Profile, Dow Jones & Co., Inc. (2017), https://images.dowjones.com/wp-content/uploads/sites/183/2018/05/09164150/WSJ.com-Audience-Profile.pdf (noting that readers’ average household income was over $242,000 and 81% of readers graduated college).

[4] Journalism and Journalistic Writing: Introduction, Purdue Online Writing Lab, https://owl.purdue.edu/owl/subject_specific_writing/journalism_and_journalistic_writing/index.html; How to Write Like a Journalist: 8 Tips, MasterClass, Sep. 8, 2021, https://www.masterclass.com/articles/how-to-write-like-a-journalist.

[5] The Inverted Pyramid Structure, Purdue Online Writing Lab, https://owl.purdue.edu/owl/subject_specific_writing/journalism_and_journalistic_writing/the_inverted_pyramid.html.

[6] Id.; Jasmine Roberts, Writing for Strategic Communication Industries (2016), https://ohiostate.pressbooks.pub/stratcommwriting/chapter/inverted-pyramid-style/#:~:text=In%20general%2C%20news%20stories%20are,or%20stop%20reading%20the%20story..