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."

Literary References: Use by Judges

This post reports on research into the use of literary references and allusions by judges in judicial opinions. The research was done by Professor Kristin B. Gerdy Kyle and reported in her article, Big Brother, Othello, and Dogs that Don’t Bark: The Use of Literary Allusion in Federal Appellate Opinions.[1] First the research, then the results.

The research

Relying on lists of the most significant literary works, authors, characters, and settings from the 1800s to the 2000s, Professor Kyle searched Lexis and Westlaw databases of federal appellate opinions from 1997 to 2012. She found 470 federal appellate opinions using literary references during the 15-year period. She found that judicial writers were using the literary references and allusions in four broad ways: factual comparisons of the case’s circumstances or parties to literary circumstances or characters; borrowed eloquence—using a literary reference for variation, reader engagement, and rhetorical force; thematic introductions, which open opinions and set a tone or theme for the analysis; and as support for legal reasoning.[2]

The results

One hundred sixty seven federal appellate judges and justices used literary references during the period, with the top three users being Judge Bruce Selya of the First Circuit, Judge Sidney R. Thomas of the Ninth Circuit, and Justice Antonin Scalia of the Supreme Court. The most frequently cited authors, in order, will not surprise anyone:

  • William Shakespeare (26 different plays)
  • George Orwell
  • Sir Arthur Conan Doyle
  • Charles Dickens
  • Franz Kafka
  • Lewis Carroll[3]

And here are the six most frequently mentioned characters and settings, in order:

  • Sherlock Holmes
  • the case of Jarndyce v. Jarndyce in Dickens’s Bleak House
  • the scarlet letter from Nathaniel Hawthorne’s novel of that name
  • Lewis Carroll’s Wonderland
  • The fairytale character Goldilocks
  • George Orwell’s Big Brother[4]

The 68 literary authors referenced in the judicial opinions are a who’s who of writers, both classic and popular.[5] Besides those named above, here are some of my favorites: Agatha Christie, William Faulkner, Herman Melville, Edgar Allan Poe, J.K. Rowling, Dr. Seuss, Upton Sinclair, and Voltaire.

Should judges use literary references?

Professor Kyle rightly notes that judges may hesitate to use literary allusion in judicial opinions. Why? Three key reasons: Using literary allusion may seem to flaunt the writer’s superior knowledge—never an inviting technique for readers. In addition, their use may alienate a portion of the audience that does not understand the allusion. And some readers opine that literary allusions are too trivial and frivolous for serious endeavors like judicial-opinion writing.[6]

Still, the practice has its defenders, among whom is the legal-writing expert Bryan Garner, who says that literary allusions, “‘if not too arcane, can add substantially to the subtlety and effectiveness of writing.’”[7] Another was the renowned legal scholar Charles Alan Wright, who argued that literary allusions make the written work more interesting, as long as “‘their basic thrust [would] be understood even by readers who are not familiar with [the underlying literary text].’”[8]

Does the same advice apply to practitioner writing? Maybe, but judicial writing differs from practitioner writing in one key way: although judges may desire to persuade their readers, they are ultimately announcing a decision, whereas practitioners are engaged almost entirely in persuasion.

Next month I’ll report on research into literary references in appellate briefs and offer some advice and commentary on their use.

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[1] 2020 S. Cal. Interdisciplinary L.J. 427 (2020).

[2] Id. at 440-51.

[3] Id. at 440-41.

[4] Id. at 441 n.108.

[5] Id. at 454-55 (Appendix A).

[6] Id. at 437-38.

[7] Id. at 438 (citing Bryan A. Garner, A Dictionary of Modern Legal Usage 342 (2d ed. 2012).

[8] Id. at 437 (citing Charles Alan Wright, Literary Allusion in Legal Writing: The Haynesworth-Wright Letters, Scribes J. Legal Writing 1, 1 (1990).

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).