Schiess’s biggest pet peeves: legal drafting

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Here are my biggest pet peeves in legal drafting—primarily contracts and statutes. I’ve already posted my list for analytical writing here. This isn’t a list of the biggest problems in legal drafting, just the ones that bug me.

Sentence length

  • Sometimes sentences in a contract run to hundreds of words in length. A former student sent me a change-of-control provision that was a single sentence of 379 words.

Witnesseth

  • Huh?

Archaic words that are not terms of art.

  • whereas, herein, said

Shall

  • It’s not just the word you use whenever you feel the sense should be “mandatory.”

Doubling text and numerals

  • This practice has annoyed me for nine (9) years.

Unnecessary or redundant word strings

  • right, title, and interest
  • transfer, convey, and set over

Which that

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In my writing, I observe the distinction between that and which, using that for restrictive modifying clauses and [comma] which for nonrestrictive clauses. I try to teach my students the difference, but I do not make it a topic of intense focus in the first-year legal-writing course.

When you see mistakes, the mistake is almost always using which without a comma. Thus, the reader is not entirely sure if you intended a restrictive clause but misused which or a nonrestrictive clause but neglected the comma. Like this:

The lawnmower which is broken is in the garage.

This could mean—

The lawnmower that is broken is in the garage.

  • I have more than one lawnmower, and the broken lawnmower is in the garage.

or

The lawnmower, which is broken, is in the garage.

  • I have one lawnmower. It is in the garage. By the way, it is broken.

Are you still with me?

Well, yesterday I read this sentence. The writer used [comma] that for a nonrestrictive clause—something you almost never see:

  • Agent Diaz said he engaged in a conversation with Mrs. Hanover through a window at her apartment and delivered, to her husband, a copy of the subpoena, that  Mr. Hanover placed on the kitchen table.

Perhaps of interest only to writing nerds.

Schiess’s biggest pet peeves: analytical writing

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Here are my biggest pet peeves in analytical legal writing—primarily memos and briefs. I’ll have another list for legal drafting. This isn’t a list of the biggest problems in legal writing, just the ones that bug me.

Abstraction

  • Three rules for legal writing: specify, specify, specify.

Lack of up-front summary or preview

  • I’m busy and impatient. Don’t start with background—tell the point, then give the background.

Double-spacing

  • No, it doesn’t make text easier to read. No, it isn’t good use of white space. Please, for the love of eyes and trees, stop double spacing.

All-CAPS

  • Banished from my writing many years ago, even for titles and headings. ALL-CAPS is for shouting in email and for license plates.

Run-on sentences with however

  • You seem to know how to write a sentence, however, you do not seem to know how to punctuate it.

Over-deletion of that

  • Mr. Lee admitted being a minority . . . made him sensitive to comments about race.

Over-creation of defined names

  • (the “over-defining syndrome”)

Unnecessary dates

  • On September 30, 2010 . . .

Why the single-sentence issue statement?

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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?

A tough criminal jury instruction

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From an opinion of the Texas Court of Criminal Appeals, I quote the following instruction used in a criminal case in Texas:

“You are instructed that any evidence which, in your opinion, mitigates against the imposition of the Death Penalty, including any aspect of the defendant’s reputation, character, or record, or any of the circumstances of the commission of the offense which have been admitted in evidence before you, may be sufficient to cause you to have a reasonable doubt as to whether or not the true answer to any of the special issues is ‘yes’; and in the event such evidence does so cause you to have such a reasonable doubt, you should answer the issue ‘no.’”

That’s tough to follow, isn’t it?

For what its worth, here’s some data:

  • 96 words per sentence
  • 23 Flesch Reading Ease Score (out of 100; 60 is plain)
  • 22 Flesch-Kincaid Grade Level (10 years beyond high school)

But it would be tough to revise, too. Revising jury instructions isn’t easy, and revising criminal jury instructions can be really tough. Or so I’ve been told by a law professor who was working on the committee to redraft California’s jury instructions.