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."

Emphasis at the End

Using placement and subordination to create emphasis.

My books: Legal Writing Nerd and Plain Legal Writing

A criminal trial has ended and you’re at the penalty phase. If you’re Terry Chima’s defense lawyer, which would you rather hear the judge say?

  1. Terry Chima, I believe that you are genuinely sorry and sincerely committed to being a productive member of society, but the crime you committed warrants a significant punishment.
  2. Terry Chima, the crime you committed warrants a significant punishment, but I believe that you are genuinely sorry and sincerely committed to being a productive member of society.[1]

Most readers believe that example 2 is more favorable to the defense, inferring that it suggests a shorter, less drastic penalty, while example 2 implies a longer, harsher one. But why?

It’s because of placement.

Placement

Most writing experts believe that the end of a sentence is a place of emphasis. The concept stated at the end stays with the reader and receives extra punch. “End sentences with a bang, not a whimper,” according to Joe Glaser, the author of Understanding Style.[2] And the writing expert David Lambuth says that “the end is emphatic because it makes the last impression. What we hear last is usually the most vivid to us.”[3]

Ending placement is the key difference in examples 1 and 2. As the defense lawyer, when the sentence ends with “warrants significant punishment,” I get a bad feeling in my stomach. But if the statement ends with “sincerely committed to being a productive member of society,” my hopes for a lighter penalty rise.

Here’s another example. Which sentence suggests that the writer is more peeved with the judge?

3. Although the plaintiff’s lawyer lied about his client’s injuries, the judge did not sanction him.

4. Although the judge did not sanction the plaintiff’s lawyer, the plaintiff’s lawyer lied about his client’s injuries.

It’s subtle, but most readers perceive example 3 to be expressing frustration with the judge, and example 4 to be expressing frustration with the plaintiff’s lawyer. The difference arises from subordination. As Bryan Garner put it: “With subordination, the phrasing immediately shows that one clause is more important than the other. You’re amplifying the one and diminishing the other.”[4]

Subordination

As a sentence structure, subordination uses two clauses: a dependent clause that begins with a subordinating adverb, and a main clause. Some subordinating adverbs have to do with time—after, before, since, until, when, whenever, and while—but when used for emphasis, the most common subordinating adverbs are although, because, despite, even though, and though.

Although subordination can occur before or after the main clause, using subordination for emphasis typically arises from placing the idea to be de-emphasized in a beginning, subordinated clause, and the idea to be emphasized in an ending, main clause.

From example 3: The beginning subordinated clause is Although the plaintiff’s lawyer lied about his client’s injuries, and the ending main clause is the judge did not sanction him. Thus, the theory of emphasis through subordination goes like this: Typical readers give—

  • reduced emphasis to beginning, subordinated clauses,
  • extra emphasis to main clauses, and
  • extra emphasis at the end of a sentence.

So when you have two ideas to express, and you’d like to emphasize one, the recommendation is to begin the sentence with a subordinated clause containing an idea you want to de-emphasize, and end the sentence with a main clause containing the idea you want to emphasize.

Even though subordination isn’t a magic trick, it can produce subtle emphasis in a sentence.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Adapted from Patrick Barry, Good With Words: Writing and Editing 33 (2019).

[2] Joe Glaser, Understanding Style: Practical Ways to Improve Your Writing 190 (2010).

[3] David Lambuth, The Golden Book on Writing 26 (2d ed. 1983).

[4] Bryan A. Garner, LawProse Lesson #238: Are you coordinated or subordinated? (Nov. 2, 2019), http://www.lawprose.org/lawprose-lesson-238-are-you-coordinated-or-subordinated/

To Serif or Not to Serif

Advice for fonts in legal writing

What are the best fonts for legal writing? Legal text appears most often in traditional, serious documents—statutes, contracts, pleadings, and briefs—so let’s narrow our definition of “best” to professional and readable. This post defines a few terms, reports on some research, and offers some recommendations.

Serif or sans serif?

Fonts come in two broad categories: serif and sans serif. Serif fonts have small extensions at the end of each stroke, called serifs. (Below left.) Examples are Times New Roman, Garamond, and Cambria. Sans serif fonts have no serifs. (Below right.) Examples are Arial, Tahoma, and Calibri.

Most legal writers have, at some point, had to decide whether to use a serif or sans serif font. Yes, some courts and other organizations require a certain font, and you might work for someone who insists on a particular font. (A Social Security Administration lawyer told me that the U.S. Attorney for his district required that all documents filed by federal attorneys be in Arial.)

But what if it’s up to you? Generally, serif typefaces are more common in legal writing than sans serif, and they tend to look more professional to most lawyers. So my recommendation (not a rule) is to use a serif font for most legal documents.

Readability

Which is more readable, a serif font or a sans serif font? For years I heard from lawyers and writing experts that “studies show” that serif fonts are more readable than sans serif fonts.

But when I went looking for the studies, I came across an exhaustive report by a consultant named Alex Poole.[1] He reviewed more than 50 empirical studies on typography and drew three useful conclusions:

  1. There is no consensus about which is more readable, serif or sans serif, and there are many studies finding no difference at all.
  2. Any alleged differences in readability are slight. In fact, the differences are “so peripheral to the reading process that this effect is not even worth measuring.”[2]
  3. Readability and legibility are more strongly affected by the particular font and the reader’s familiarity with that font than they are by whether the font is serif or san serif.

As Poole put it, “we should accept that most reasonably designed typefaces in mainstream use will be equally legible.…”[3]

Beyond serifs

For recommendations on specific fonts, the best source is Matthew Butterick’s Typography for Lawyers, also available at typographyforlawyers.com. It’s the most thorough, comprehensive, and informed book on the topic.

Beware: Butterick dislikes some common, widely used fonts. He strongly recommends against Times New Roman, and he hates Arial, saying that he refuses to name it, but it “rhymes with Barial.”[4]

He believes that lawyers should avoid “system fonts”—those that come with Microsoft Word, for example. Lawyers should use professionally designed fonts, and he’ll sell you his, called Equity.

Still, he knows that most lawyers won’t be buying fonts, so he offers recommendations for system fonts that go from “Generally tolerable” to “OK in limited doses” to “Questionable” to “Fatal to your credibility.”[5]

On his “generally tolerable” list are several serif fonts that most legal writers will know and that I recommend for any legal document: Book Antiqua, Century Schoolbook, Garamond, and Palatino.

For email, sans serif fonts are more typical, and Calibri, on Butterick’s “OK in limited doses” list, is common.

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[1] Alex Poole, Which Are More Legible: Serif or Sans Serif Typefaces? (Feb. 17, 2008) http://alexpoole.info/blog/which-are-more-legible-serif-or-sans-serif-typefaces/.

[2] Id. citing Ole Lund, Knowledge Construction in Typography: The Case of Legibility Research and the Legibility of Sans Serif Typefaces (1999) (thesis submitted for the degree of Doctor of Philosophy, University of Reading, Department of Typography & Graphic Communication).

[3] Id.

[4] Matthew Butterick, Typograph for Lawyers 78 (2d ed. 2015).

[5] Id. at 79.

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.