Category Archives: Teaching Legal Writing

The 10th MoUS changed everything

Yesterday a former student visited me to say hello and catch up. He is an appellate lawyer with the Department of Justice. Gradually, the memories came back, and I remembered that he had taken my advanced legal writing class. He reminded me also that I had supervised his work for credit when he and some  classmates revised the Texas Law Review Manual on Usage and Style (MoUS). They produced the 10th edition.

Under this student’s leadership, the 10th MoUS became, in my view, a much better product. It was thoroughly revised and updated. The revisers weeded out myths and superstitions or labeled them as such. They created better examples. They modernized the layout and style. My contributions were limited—they, and my former student in particular—deserve the credit.

Ever since spring 2005, when that 10th edition came out, I have unreservedly recommended it. Although it is not a comprehensive legal-style manual, it is a good one: inexpensive, accessible, and reliable. The 11th edition came out in 2008, and those revisers—with my former TA among them—made further improvements to the MoUS. Two students are currently working under my supervision on the 12th edition, due out in 2011, and again a former student is one of them.

I take no credit. I review their work and make suggestions—that’s it. These students work hard, and they deserve credit, both figuratively and literally. And my former student, the driving force behind the 10th MoUS, was the one who laid the foundation for it all. Well done.

Why the single-sentence issue statement?

A commenter asks:

[In writing questions presented and issue statements] is there any historical or legal reason why (some) lawyers try to cram everything into one sentence? I have noticed that this unfortunate custom prevails also among lawyers from other, non-English-speaking jurisdictions, which appears to indicate that there must be some method to this this madness.

Wayne says:

I was taught to do it that way in law school, and I taught my students to do it that way for several years. It is also a common convention in legal writing today.

So we were taught that way because it was a convention, and it was a convention because we were taught that way.

But why?

Student essay

Another of my favorite student essays:

Thoughts on Legal Writing

When it comes to legal writing, the writing part I get—it’s the legal part that worries me.

I think I’ve always been pretty good at writing. In fact, “Jeffrey, you’re a great writer,” is a phrase I probably heard a hundred times growing up. Sure, my parents accounted for just about all of those instances, but I still like to think there is at least some truth to it. I used to prefer math to English, but after I joined my high school newspaper and math became more than simply who in the class could calculate 7 x 8 the quickest (56, but the trickiest of the times table, right?), that was no longer the case. Grammar, too, used to be the bane of my existence, until my college roommate, a creative-writing major, showed me how powerful and effective language could be when harnessed properly. Top that off with the emerging popularity of stream-of-consciousness writing in prime-time television comedies (e.g. The Office, 30 Rock, Modern Family), and writing had gained its newest, biggest fan in me.

I used to roll my eyes at people who told me, “You don’t answer the phone and say, ‘This is him,’ you say, ‘This is he.’” Now, however, I’m the one who says, “No, no, no, it’s fewer, not less,” and who gets upset every time people spell the opposite of win, as “l-o-o-s-e” (Seriously, it happens all the time). More troubling than all of the grammatical errors is that nobody seems to care. I wouldn’t be as concerned as I am if, when I corrected people (which isn’t that often—I do let some things slide), I were met with the reply, “Ahhh yes, thank you,” as opposed to, “Oh. Whatever.”

But now I am entering my second year of law school, all too quickly approaching the point where I have memo upon memo to research and write, and my only thought is, “my bosses won’t care.” Honestly, are my supervising attorneys going to care if my internal memos are free from grammatical errors? Well, maybe—but will they care as much as I think they should? Doubtful. Even if I turn in writing that would make every English teacher smile, if I have left out even one case relevant to the subject matter or failed to draw the correct analogy, I’m screwed.

The writing aspect of legal writing is of course important, but not nearly to the extent that the legal part is. Grammatical errors are just short of guaranteed to be caught by someone before the letter goes to the client or the motion goes to the judge, and even if they’re not caught: (a) it won’t alter the substance of what I’m saying and (b) the recipient probably won’t care (if they notice at all). But if I cite a case that has been overruled or try to apply a rule that doesn’t really apply, I’m in for a long talk with my boss.

Yes, I know what you’re going to say, “Jeff, just do both—not only research meticulously and write persuasively, but also turn in well-written documents.” Okay, fair enough, but the point remains that comparatively, writing mechanics just aren’t as important as the legal argument. Time is money, and for lawyers, their time is a lot of money. They don’t have much incentive to spend 15 minutes editing a document that has already been written and can no longer be charged for when that 0.25 hours could be spent researching for (and billing) another client.

Maybe I’m being dramatic. After all, in what other profession does one spend upwards of 50 and 60 hours on a three-page motion? Clients pay for more than just finding the law; clients pay for the eloquent conveyance of an idea. They pay for persuasion, clarity, and neatness—and they pay well. The client and judge don’t want to see a comma splice any more than a supervising attorney or judge does. Sure, they may not know it’s called that, but they’ll be able to tell the sentence doesn’t read well. If it doesn’t read well, it doesn’t argue well. If it doesn’t argue well, the judge isn’t convinced. And, if the judge isn’t convinced, well, then my client will loose.

Student essay: Patents

A student essay I really liked:

Some nights, I wake up distraught with a demon of meaningless words and terrible run-on sentences frantically circling my brain. This monster comprises of a plurality of semicolons and a non-transitory signal. I can’t escape it, and I surrender, accepting that my brain still bears scars from a foray into the wonderful world of patent prosecution.

The first painful experience I encountered when beginning patent prosecution was vocabulary. Patent prosecution, as can be expected of a form of legal writing, has its own vocabulary. A dictionary consisting of the vocabulary would contain obscure words with usage unique to the patent prosecutor. For example, an embodiment of the invention—for no good patent prosecutor ever allows a single claim to be the invention—might include a hard drive. However, that hard drive is no mere hard drive. Instead, it is a storage medium. Since a storage medium can sometimes take the form of a transitory signal, though, and since transitory signals are non-patentable subject matter, this storage medium must be a non-transitory signal. “Wherein” is another example of the vocabulary of a patent lawyer. “Wherein” is used to provide limitation and description to the element directly preceding it. However, when elements require multiple limitations, serial “wherein” clauses might appear, wherein each clause contains an additional limitation, wherein each limitation is simply painful to read. However, the dictionary would be incomplete with mere definitions and usage instructions.

The new patent prosecutor would also need knowledge of the forbidden words of the patent world. For example, the word “may” adds a level of ambiguity that no good patent lawyer should ever write into a patent application. Accordingly, a Patent Examiner could annihilate any claim containing the word “may” as being too indefinite to be patentable. Similarly, “the invention,” when not accompanied by “embodiment of,” is a phrase to be avoided at all costs. When a Patent Examiner sees “the invention” by itself, he assumes that is the only thing being claimed.

Another rule that all patent lawyers must learn is the strict requirement for using the word “the.” Whenever “the” is used in describing a particular element of a claim, that element must have been mentioned at some point prior to the claim. Regardless of how strange it might look and regardless of whether the element appears only once in an invention, “a” or “an” must be used if it is the first mention of the element. However, vocabulary is not the only source of pain in patent prosecution.

Because of a strange quirk in the way the first patent statutes were drafted, every claim must be one sentence. No matter how many elements are claimed and no matter how long the sentence, the claim must be one sentence. This strict adherence to an idiosyncrasy of drafting leads to an amazing amount of unreadability in patent applications. In addition, letters and numbers, which would provide a sense of stability and structure, are often not used, because they might imply order. The use of commas is inconsistent—Patent Lawyers seem unable to decide whether they want to overuse or underuse this wonderful punctuation mark. Semicolons, on the other hand, are definitely overused. Independent clauses, dependent clauses, words, letters—nothing is safe from the Patent Lawyer’s semicolon. The ridiculous required structure and obscure vocabulary couple to create one of the most torturous treatments of human language that exist in the known world.

Though I have experienced a mere six weeks of reading patents, it is already too late. The specter of patent prosecution haunts me. However, Intellectual Property Law is my chosen path. Therefore, I must accept the realities of the situation and move on. This is an area where a writing expert could truly shine a light of revelation. I hope that one day an expert does.