Author Archives: Wayne Schiess

About Wayne Schiess

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."

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:

  1. What do you think of the writing abilities of the new lawyers you work with?
  2. What do you think of new lawyers’ ability to manage research and writing projects?
  3. 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.

 

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: hereinabove … hereinbefore … hereinafter ….”[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

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[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.