Legal Writing

Scalia & Garner on writing

Posted on May 26, 2008
Flor lawyers who write for judges, and for all lawyers who want to improve, I recommend a new book by Bryan Garner and Justice Scalia:Making Your Case: The Art of Persuading JudgesLots of great advice.

Fear as a factor in nominalizations

Posted on May 15, 2008
An excellent post from a commenter acknowledges fear as a force in legal writing:I think much of the problem (to the extent it is one) with legal writing is that it is based upon fear.Young lawyers fear being wrong. They fear error as though to err is fatal (maybe fatal to your career, but not life-threatening)...

Verbs that want to become nouns--why?

Posted on May 12, 2008
One commenter has noticed that lawyers often use nominalizations when another form would sound more natural or be easier to read:Where do you think they pick up the habit?he asks.I don't know, but I have some guesses:From judicial opinions. But that just begs the question because we must now ask where the judges--who are legal writers, after all--pick up the habit...

More on nouns that want to be verbs

Posted on May 12, 2008
An able commenter has pointed out that converting to a verb form is not the only way to avoid nominalizations:Sometimes the best alternative to an abstract noun isn't a verb but an adjective. For example, is liable instead of has liability.And an additional drawback to buried verbs is that like the passive voice, they allow the writer to omit the actor...

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When verbs become nouns

Posted on May 09, 2008
Lots of legal writing contains nouns that could have been verbs. These nouns wanted to be verbs--they really did. But lawyerly habits and the default patterns of legal writing made these verbs into nouns, and only you can put them back.Nouns that wanted to be verbs go by many names: nominalizations, hidden verbs, buried verbs...

Roy Mersky has died

Posted on May 07, 2008
Roy Mersky, or "RMM" to many of us, died yesterday. He was the director of the law library here at the University of Texas School of Law. He was a giant in the field of law libraries. He was also my friend.When I wrote an article or a book, Roy would send me a note of congratulations...

What clients will pay for

Posted on May 02, 2008
Oops. I meant the title of this post to say: "For what clients will pay."Yesterday a commenter reminded me that most lawyers are too busy to polish their work as much as they should. I agreed. Today, a commenter pointed out another reason lawyers don't polish their writing as they should:Clients aren't willing to pay to have perfect work product...

The busy-ness of law practice

Posted on May 01, 2008
A commenter writes:The problem is that, ironically, legal practice discourages good writing. . . . [One] reason is that most lawyers take on more work than they can do well. It may be their own fault, but they don?t have enough time to edit and proofread their writing...

Reasons legal writing doesn't improve

Posted on April 18, 2008
A commenter writes:Writing is a fundamental skill. Law schools should put much greater emphasis on this fundamental. Those students who didn't develop good writing skills before they got to law school should take more than one or two legal writing courses...

Expectations of what I teach

Posted on April 17, 2008
Recently, a tenured professor walked into my office, holding a student-written paper. The professor was teaching an advanced course in which students had to write a scholarly paper. "I'm very upset that our students can't write," he said. "Look at this...

U.S. House passes plain-language law

Posted on April 16, 2008
The House has passed the Plain Language in Government Communications Act of 2008.It requires agencies to rely on the Federal Plain Language Guidelines or the SEC's Plain English Handbook.Yay.Hat tip to Mister Thorne of Set in Style.

Writing to Win: Plain Language Jury Instructions

Posted on April 10, 2008
I attended and spoke at Writing to Win: Plain Language Jury Instructions, sponsored by Washburn University School of Law. It was a great conference, very professionally run. Prof. Lyn Goering there was in charge, and she was superb.More and more states are thinking about plainifying their jury instructions and, of course, change has to come from, or with the approval of, the judiciary...

Legal words you'd like to banish?

Posted on March 28, 2008
What legal words or phrases would you like to banish? They can be archaic, offensive, baffling, weasel-like, or hyperlegal.I have a few, but I'll post mine later in a longer piece.

More on questions presented

Posted on March 27, 2008
In a thoughtful comment, don has raised some valuable points about writing questions presented. My post, where you can also read don's entire comment, is here.I want to address two topics he raised.First, he called my approach dogmatic. I dislike being perceived as dogmatic--on most writing issues, I'm actually quite flexible...

Defending the single-sentence question presented

Posted on March 25, 2008
A reader defends the single-sentence question presented:Focus is my #1 reason: Limiting the Question Presented to one sentence forces the writer to focus on the overall issue that is addressed in the memorandum and the key facts that determine its outcome...

I'm asking: what are the most misused legal words?

Posted on March 25, 2008
What are the most commonly misused words in legal writing?infer/imply?affect/effect?compliment/complement?counsel/council?discrete/discreet?Tell me your pet peeves or the one you see the most.

Defending the single-sentence question presented

Posted on March 20, 2008
I can't.I teach my students to use multiple sentences and construct the question as a type of syllogism, and I've been doing it for 10 years.If you teach or use the single-sentence question presented, what are its strengths? Let me cut off two before you reply...

It doesn't all transfer that easily

Posted on March 20, 2008
I read something today that made me realize that lots of folks think that if you're a good writer--if you have a strong knowledge of written English or proven success in some type of writing--then you'll make a strong legal writer.No.Even a superb grounding in writing English does not mean you'll be a good legal writer...

Summaries in legal writing, part 2

Posted on March 12, 2008
17 Austin Lawyer 6 (Mar. 2008).Every legal document should begin with a summary of some kind. In part 2 on this subject I highlight the importance of up-front summaries by quoting the experts and then offering advice based on three before-and-after examples...

Teaching Drafting conference

Posted on March 05, 2008
I will attend and participate on a panel at this conference:Teaching Drafting and Transactional Skills: The Basics and BeyondThe conference is sponsored by Emory Law School.

Jury Instructions conference

Posted on March 05, 2008
I'll be speaking at this conference, individually and on a panel:Writing to Win: Plain Language Jury InstructionsThe conference is sponsored by Washburn University School of Law.

Professor Joseph Williams has died

Posted on March 04, 2008
Joseph M. Williams, 1944-2008. Details here.I recommend his book, one of the best on writing:Style: Lessons in Clarity and Grace (9th ed.)

Text beneath point headings

Posted on February 20, 2008
A reader asks--In a brief with numbered point headings, should the text immediately after each point heading summarize the point made in that section of the brief, even if it is just a restatement of the point heading in slightly different form? Or should you start the text following a numbered point heading as if the heading itself is the topic sentence of the next paragraph?I consulted my colleagues, who are experienced teachers of legal writing and who include two former federal judicial clerks, and they all said the same thing, with which I agree:Make the first sentence beneath a point heading an appropriate topic sentence; do not rely on the point heading itself as a sort of topic sentence...

Summaries in legal writing, part 1

Posted on February 13, 2008
16 Austin Lawyer 9 (Feb. 2008)Every legal document should begin with a summary of some kind. This post highlights the importance of up-front summaries by quoting the experts and then offers advice in three before-and-after examples.All legal writing should be front loaded...

Plain-English advocate picks on lawyers. Ouch.

Posted on February 05, 2008
Why do lawyers write so that no one can understand them? They say it is because they need to be precise, and that their language has been honed by centuries of litigation. But this is baloney. The real reason is that, although they are paid for their skill with words, most lawyers are dull and clumsy writers who have not broken the bad habits they learned as students...

Choosing topics for sentences

Posted on February 04, 2008
16 Austin Lawyer 13 (Dec. 2007 & Jan. 2008) (updated from a post on Nov. 2, 2007)This piece is about dates, witnesses, and cases and their frequent appearances in topic sentences.Dates are not topicsIn reading several briefs recently, I noticed that the facts often had a series of three, four, or even five consecutive paragraphs beginning with a date...

Writing for nonlawyers

Posted on February 04, 2008
16 Austin Lawyer 13 (Nov. 2007)When writing for nonlawyers, some of us maintain a misguided sense of professionalism, which can lead to an unnecessarily formal writing style that ignores audience needs.Young lawyers, I forgive. They don't always know which legal words and constructions are necessary and which are fluff...

Mind your prepositions

Posted on February 04, 2008
16 Austin Lawyer 13 (Oct. 2007)We should write sentences that convey our meaning and keep the reader engaged. We should write sentences that flow. That can be hard in legal writing, but we can learn. This article discusses two preposition problems that can spoil engaging, flowing sentences...

All-capitals not necessarily conspicuous

Posted on February 04, 2008
?Lawyers who think their caps lock keys are instant ?make conspicuous? buttons are deluded.?In re Bassett, 285 F.3d 882, 886 (9th Cir. 2002).Hat tip to Ken Adams.

Doubling spacing?

Posted on January 30, 2008
"Double-spacing facilitates the reading and comprehension of large numbers of legal documents." State v. Riley, 605 S.E.2d 212, 214 (N.C. App. 2004).This reader of legal documents disagrees. To me, double-spacinguses twice as much paperforces me to turn the page twice as oftenmakes it hard to skim the documenttakes twice as long to scroll through on the screenSo there.

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