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."

Connecting Legal Writing

Research and recommendations for transitions

In a recent article, Professor Diana J. Simon of the University of Arizona James E. Rogers College of Law gathered results from some empirical studies on the use of “connectives” (what I’d call “transitions”) in writing. Prof. Simon’s article is called, “The Power of Connectivity,”[1] and the advice is informative and valuable to legal writers who want to write readable, easily comprehensible prose.

Research by psycholinguists and cognitive psychologists shows that transitions in writing improve reader comprehension and even speed up reading and understanding.[2] Some of the research is basic and aligns with common sense: in one study, connecting two related sentences with the word “because” resulted in faster comprehension than the same two sentences without the connecting “because.”[3]

In another study, participants were given equal time to read multiple pairs of sentences. But one group read pairs connected with “because,” one group read pairs connected with “and,” and the third group read pairs with no connectives. When asked to write down what they remembered, recall was better for those who read the “because” pairs than for the other two groups.[4]

And one study asked participants to read four technical essays and then take a 10-question quiz about the content. Half the essays contained “logical connectives,” and half did not. The test scores were higher for those who read the connected essays, leading the researchers to conclude that “logical connectives appear to aid readers in understanding expository prose.”[5]

Professor Simon then describes transitions (connectives) as mainly linking or substantive. Understanding these two kinds of transitions can help us write connected prose.

Linking transitions are the most common type, and are well known to legal writers. They connect one idea or concept to another and show relationships. Here are some relationships with examples of linking transitions: addition (further, also), causation (therefore, thus), comparison (similarly, likewise), contrast (however, but), and sequence (first, second, third). Granted that these transitions are basic, nearly all legal writing could be improved by more and better use of linking transitions.

Substantive transitions show substantive links between ideas. Professor Simon focuses on three subcategories: repetition, restatement, and roadmapping.[6]

Repetition means literally repeating a key word or phrase from a previous sentence or paragraph, and when not overdone, creates connections in the reader’s mind. For example, when writing about a claim of premises liability, it would be unwise to refer to the claim as “premises liability” and then later “premises defect,” and later “owner liability.” That’s confusing. By repeating the key term, premises liability, the writing stays connected, easing the reader’s way.

Professor Simon notes that even the way we use cases employs repetition:

When the defendant is a governmental entity, a statutory prerequisite may be jurisdictional. Key v. ABC Co., 123 S.W.3d 456, 457 (Tex. 2000). In Key, the court used a three-step test to determine what is a jurisdictional prerequisite. Id.

The repeated case name, Key, creates the connection.

Restatement means recasting a concept for efficiency and reference:

The state argues that a statutory prerequisite is jurisdictional whenever the defendant is a governmental entity. This broad argument circumvents the court’s three-step test for determining what is a jurisdictional prerequisite.

Here, “broad argument” restates, in abbreviated form, the longer phrasing of the argument, creating a connection between the two sentences.

Finally, Professor Simon discusses roadmapping, which introduces a coming idea or ideas or can “alert the reader to a shift in thought ….”[7] For example:

The applicant’s request is supported by three key facts. First, …
Two valuable public policies underlie the statutory language. These policies are …
[From earlier in this column:] Professor Simon focuses on three subcategories: repetition, restatement, and roadmapping.

The techniques discussed here can help all legal writers increase and improve their use of transitions in legal writing. After all, science backs it up.

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[1] Diana J. Simon, The Power of Connectivity: The Science and Art of Transitions, 18 Leg. Comm. & Rhetoric: JALWD 65 (2021).

[2] Id. at 66 n. 2, 3 and sources cited there.

[3] Id. (citations omitted).

[4] Id. at 67-68 (citations omitted).

[5] Id. at 78 (citations omitted).

[6] Id. at 74-75.

[7] Id. at 76.

Developing Editorial Judgment

It’s more than “read a lot” and “have a good ear.”

At a recent CLE talk, I said that implementing a certain technique would require “exercising editorial judgment.” A lawyer asked, “How do you develop editorial judgment?” In this column, I try to answer that question.

Note: This column is about words, sentences, paragraphs, and documents, not about substance and content, which are highly important in legal writing: Should I mention this fact? Should I include this topic [information, explanation, analysis, argument, counter-argument, policy, etc.]? Does my reader need more background—or less? And so on.

When you’re writing or editing a document for yourself or someone else, you end up making countless editorial decisions:

Should I use a semicolon or a dash here?
Should I use conversely, however, or but?
Is this sentence too long? If so, where should I break it?
Is this paragraph too long? If so, …
Should I use three levels of headings and subheadings—or only two?

And so on. We make most of these decisions instinctively, yet in doing so, we may not realize that we’re relying on editorial judgment: a storehouse of knowledge about the way writing works. Plus, factored into all these judgments are the context, the audience, the constraints, and the goals of the writing. That’s a whole lot of judgment to exercise.

I’ll focus on developing good editorial judgment as to the words, sentences, paragraphs, and documents you write. Here are my five key recommendations:

Look things up.

Whenever you have even a small or innocuous-seeming question or concern about words, syntax, sentences, grammar, punctuation, or style, consult a source. The internet works (I like “Grammar Girl” Mignon Fogarty[1]), but I recommend keeping at hand some good reference manuals—books—including references specific to legal writing. I’ve cited five good ones in the footnote.[2]

Read about writing.

I often see “read good writing” offered as advice for learning to write well. It’s good advice. But the reading most of us do is to learn content or to be entertained. The kind of reading you should do to improve your editorial judgment requires more effort, more focus, more planning. For me, it’s not reference manuals like those I mentioned above, but engaging, well-written books about writing well. These books inform and strengthen your editorial judgment. I’ve listed five in the footnote.[3]

Write a lot.

This idea is built-in for most legal writers. The more writing you do in a professional context, the more experience you gain, and experience contributes to editorial judgment. But if all you do is write a lot, without looking things up and without reading about writing, you tend to rest on plateaus; you write the same way you always have—particularly if you’re operating with harsh deadlines and heavy workloads. So write a lot, but improve and inform your writing judgment by looking things up and reading about writing.

Edit, edit, edit.

Subject every serious writing project to edits aimed at effectively and precisely conveying the content, clearly presenting that content in an organized fashion, and thoroughly improving the text for concision, clarity, and correctness. You could develop editing protocols and practice them consistently. You could create editing checklists and revise them over time. You could work at completing drafts early so you have more time to edit—and more time away from the document, which always improves editing.

Seek critique.

Open yourself up to suggestions, comments, and critiques of your writing offered by those you trust and whose writing you respect. One sure way to stymie your editorial judgment is to write the way you always have without seeking input from others.

Those are my best recommendations. Good luck.

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[1] https://www.quickanddirtytips.com/grammar-girl/

[2] Deborah Bouchoux, Aspen Handbook for Legal Writers; Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer; Bryan A. Garner, Garner’s Dictionary of Legal Usage; Bryan A. Garner, The Redbook: A Manual on Legal Style; Texas Law Review, Manual on Usage & Style.

[3] Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well; Ross Guberman, Point Made; Ross Guberman & Gary Karl, Deal Struck: The World’s Best Drafting Tips; Wayne Schiess, Legal Writing Nerd: Be One; Richard Wydick & Amy Sloan, Plain English for Lawyers.

Should You Use “Shall”?

In legal drafting, should you worry about using shall? Consider three examples:

Subcontractor shall comply with all Contractor safety rules.
“Seller” as used in this contract shall mean Oaker Services.
Members of the panel shall be selected by the commissioner.

Although shall is generally harmless in those examples, taking more care when using shall would be a good thing for three reasons.

1. Shall can be ambiguous.

Courts have construed shall to mean both “must” (mandatory) and “may.” Here are two statements about the meaning of shall from the Texas Supreme Court:

We agree, of course, that ‘shall’ is mandatory language.” C. v. M.B., 650 S.W.3d 428, 443 (Tex. 2022) .
“The word ‘shall’ in a statute may be and often is held as merely directory and as having been used in the sense of ‘may.’” Thomas v. Groebl, 212 S.W.2d 625, 630 (Tex. 1948).

These conflicting meanings of shall have prompted scholarly criticism in articles like “The Many Misuses of Shall,” “Shall We Proceed?” and “Shall Must Go.”[1]

2. Shall is used in multiple senses in the same document.

The preferred meaning of shall in legal drafting is to create a duty and to impose that duty on an actor:

Subcontractor shall comply with all Contractor safety rules.

Here, shall imposes a duty on the Subcontractor.

But shall is also used to mean that something will or must occur or be treated or viewed in a certain way:

“Seller” as used in this contract shall mean Oaker Services.

Here, shall is not imposing a duty; it is saying that the term “Seller” refers to Oaker Services.

This usage isn’t ideal: legal drafters shouldn’t use the same word to meaning different things—no citation needed. By the way, Black’s Law Dictionary gives five senses of shall in legal writing: has a duty to, should, may, will, and is entitled to.[2] One leading expert on contract drafting, Kenneth Adams, says that as to being used with differing meanings, “the word most abused in that regard is shall.”[3]

3. Shall is archaic.

Shall is an outdated word that, in the U.S., is rare in written or spoken English. Bryan Garner explains that today shall is usually used in only two situations: “(1) interrogative sentences requesting permission … <shall we all go outside?>; and (2) legal documents ….”[4]

Recommendations

You could limit shall to one meaning in documents by scrutinizing every shall to ensure that it imposes a duty on an actor. One good test: try substituting the phrase “has a duty to” for shall.[5] If it makes sense, you’ve used shall correctly:

Subcontractor shall [has a duty to] comply with all Contractor safety rules.

Correct use of shall.

“Seller” as used in this contract shall [has a duty to] mean Oaker Services.

This usage doesn’t make sense: How do you impose a duty on the term “Seller”?
Drop shall: “Seller” as used in this contract means Oaker Services.

Members of the panel shall [have a duty to] be selected by the commissioner.

This usage is not correct: It’s the commissioner who has a duty, not the panel members.
Will works: Members of the panel will be selected by the commissioner.
Active voice works: The commissioner shall [has a duty to] select members of the panel.

If scrutinizing every use of shall in your document would be too time-consuming and costly for your client, you could reasonably decide to leave the shalls as they are—especially if you’re drafting contracts. Although there are hundreds of cases of courts construing shall, nearly all of them concern statutes, not contracts.[6]

Finally, if you’re drafting simple agreements for nonlawyers (residential leases, consumer notices, website disclaimers), steer away from shall. For those, you could simply use “agrees to,” and if “agrees to” doesn’t make sense in a certain sentence, then shall likely wouldn’t have been correct, either.

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[1] Joseph Kimble, The Many Misuses of Shall, 3 Scribes J. Legal Writing 61 (1992); Alex MacDonald, Shall We Proceed? Ebbs, Flows, and Futility in the Debate over Words of Authority, 20 Scribes J. Legal Writing 81 (2022); Michele Asprey, Shall Must Go, 3 Scribes J. Legal Writing 79 (1992).

[2] Shall, Black’s Law Dictionary (11th ed. 2019).

[3] Kenneth A. Adams, A Manual of Style for Contract Drafting 9 (2013).

[4] Bryan A. Garner, Garner’s Modern English Usage 825 (4th ed. 2016).

[5] Bryan A. Garner, Garner’s Dictionary of Legal Usage 952 (3d ed. 2011).

[6] 39 Words & Phrases 173-239 (2006).

What I Did Last Summer

Gathering opinions on new legal writers

In summer 2022, I had lunch meetings with five local attorneys. My goal was to gather input from practicing lawyers about ways I could improve my teaching of legal writing. Before meeting, I asked my “consultants” to consider three questions:

What do you think of the writing abilities of the new lawyers you work with?
What do you think of new lawyers’ ability to manage research and writing projects?
What are some changes or additions to law-school legal-writing instruction you would recommend?

1. Writing abilities of new lawyers

I was pleased to learn that, according to my consultants, the writing ability of new lawyers these days is okay. No one was gushing about it—after all, new lawyers need lots of practice and experience to become skilled legal writers. But I was pleased that I didn’t hear any “the sky is falling” or “sound the alarm” reports.

I think that’s partly because formal legal-writing instruction in U.S. law schools, once almost non-existent, has been transformed in the last thirty years. At many schools, legal writing has moved from a low-credit, pass-fail course taught by teaching assistants to a graded course taught by full-time faculty.

Still, there’s room for improvement, and the most-common concerns expressed about new lawyers’ writing fell into three categories: tone, concision, and organization.

Tone: My consultants said that new lawyers sometimes write too formally, in a tone that is stiff or stilted. They guessed that new lawyers might be trying to sound … lawyerly. This is understandable, of course, and it’s a phase nearly every lawyer passes through. You’ve entered a learned profession, and you’ve become a licensed attorney, so you want to sound like one.[1] Yes, writing with an unduly formal tone is a flaw, but it’s not a major one. With some good feedback about audience and purpose, new lawyers will adapt to expectations and begin to adopt a readable tone.

Concision: New lawyers’ writing is sometimes wordy and verbose, my consultants said. They see long sentences, complex structures, and big words. But mostly, they said, they see documents that are too long. A memo the assigning lawyer thought would be five pages is ten; email messages that could be two or three paragraphs are five. New lawyers need to weed out extraneous details and unnecessary background and deliver the key information or analysis efficiently.

I agree that concise writing is a challenge for new lawyers, and my perspective as a teacher of first-year students makes me aware of a risk to keep in mind. If you apply pressure on novice legal writers to be concise, they might cut useful or necessary content just to achieve concision. In other words, to get the five-paragraph email down to three paragraphs, the beginner might just cut two paragraphs—perhaps removing a key legal standard or an important piece of the analysis.

What we want, of course, is for the writer to carefully edit all five paragraphs, removing a few words here, dropping an unnecessary comment there, and then consolidating so that we end up with three paragraphs. Ideally, they learn to achieve concision by a series of small edits that add up.

Organization. Even a concise piece of legal writing that uses the right tone still needs to be well organized, and in this area my consultants had two key comments: First, they wanted more up-front, bottom-line summaries in nearly everything thing they read. Spill the beans: get to the point first and put the background second, they said. It’s a common recommendation for all legal writing.[2] Second, the rest of the document should be sensibly ordered, with headings if necessary and strong topic and transition sentences.

These two key comments—the need for an up-front summary and the importance of a sensible, discernible order—highlight the reality of law practice: Lawyers are busy. These two techniques help busy lawyers read and understand efficiently.

2. New lawyers’ ability to manage research and writing projects

The responses to this question fell into three categories: Getting assignments, following up, and following through.

Getting assignments

I practiced law before the Internet, cell phones, and email, so the way I got assignments was almost always to go into someone’s office with a pen and pad in hand. I sat and took notes on what I was told.

It turns out that’s still a good idea, according to my consultants.

If possible, assigning attorneys and assignment-receiving new attorneys would meet in person to discuss the assignment. The new attorney should have something to write with—probably not just a cell phone.

Even when getting an assignment by email (the most common method, according to my consultants), it’s usually a good idea to drop by and talk. New attorneys should ask about the assigning attorney’s expectations on timing, depth, length, and so on to be sure they understand the assignment. Then, after some initial work, they should check back to be sure they’re on the right track.

Following up

New lawyers and law students tell me they sometimes avoid following up with questions because they don’t want to look inept or uninformed. But my consultants said that, in fact, not following up with the assigning attorney is a bigger problem than asking too many questions.

Although it doesn’t happen frequently, it’s a serious problem to do the research and write up a project that isn’t what the assigning lawyer wanted. Of course, it’s best to follow up only after you’ve done at least some research, so you’ll have something useful to say when you check back.

Sometimes the new lawyer gets a project and can’t find anything or, at least, anything that seems responsive to the assignment. When that happens, it’s important to follow up, but it’s just as important to be able to report back with “here’s what I did.” For example, it’s great if new attorneys can say, here are the research queries I submitted, or here are the types of authorities I consulted, or something like that.

Following through

According to my consultants, new lawyers should aspire to do more than merely answer the question; one recommendation is to include a short report on the best cases for and against the outcome predicted. In addition, new lawyers should invest in the problem: ask about it, care about it, try to get involved.

Some new lawyers make the mistake of assuming that it’s a senior attorney’s job to get them involved and pull them into projects. But getting involved is a new attorney’s job. New attorneys should become invested in the problem, ask follow-up questions, and care about the result for the client.

3. Recommended changes or additions to law-school legal-writing instruction

My consultants had lots of ideas, and I’ve listed some below. There are some great suggestions, but given that my focus is on first-year legal writing courses, I’ve categorized them into two groups: (a) good ideas that my colleagues and I are already doing, are hoping to do more of, or are planning for the future; and (b) good ideas that might become part of an upper-division course or clinic but that would be difficult to implement in the first-year legal-writing course.

(a)

Oral assigning of projects
Assignments given and responded to by email only
Assignments that ask, “The client has done [or wants to do] X. What do you recommend?”

(b)

Assignments to adapt a template motion or brief into a motion or brief on a different topic
Assignments to find motions, briefs, and other pleadings prepared by opposing counsel
Training in transactional drafting
Assignments to boil down a complex transaction into a concise report

Overall, it was a great summer project that I hope to do again in a more systematic and expanded way.

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[1] Wayne Schiess, The Sound in Your Head, Austin Lawyer 6 (Nov. 2009).

[2] Wayne Schiess, Legal Writing Nerd: Be One 25-29, 30-36 (2018).

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.