Law-review writing: an example

Is this good writing?

• For some, globalization promises peace and prosperity on an unprecedented scale; for others, it portends injustice, inequality, the demise of community and self-government.

Drafting Legal Documents nonlawyers Can Read and Understand (DLD)

Too many legal texts intended for the general public are dense, dry, and unnecessarily complex. They contain typical legal drafting: legal jargon, legal terms of art, long sentences, and complicated syntax. To the extent they are unreadable or difficult to understand, the drafters--and their clients--are vulnerable to assertions that the text should not apply because the intended audience could not understand it. What's more, these texts often contain mistakes of English or of substantive law, both of which are harder to spot and fix if the text is typical legal drafting. And ultimately, the texts fail of their essential purpose: to communicate binding legal content to the nonlegal audience.

Despite the many and obvious failings of so much text intended for nonlawyers, too many lawyers still produce text that only other lawyers can fully understand. Yet more and more legal documents must be read and understood by the general public:

Employee manuals and handbooks
Basic contracts
Credit-card agreements
Software licenses and user agreements
Website disclaimers
Insurance policies
Wills
Public notices
Consumer regulations
Releases

And more. All these have as their primary, intended audience, the general public--nonlawyers. So why do so many lawyers fail to draft in ways nonlawyers can read and understand?

Maybe they haven't been taught. I surely wasn't taught the skill in law school--almost no lawyers were. And even today I teach it to only a small percentage of law students, those who take my advanced courses.

So this book aims to teach you how to prepare legal documents nonlawyers can read and understand. It will focus on 10 principles for clear drafting, from knowing the audience and adopting a "consumer" style, to words, sentences, paragraphs, design, and readability. The book will contain lots of practical advice for consumer drafting and numerous before-and-after examples.

Plain English: will it ever conquer all?

A reader asks--

Why is it that despite 40 years or more of unbroken efforts to improve legal writing and a constant drumbeat of "Write plain English!" (at least one book a year is published that preaches that message), few lawyers seem to get the idea? By and large, it's as if none of it ever happened. Legal writing remains dreadful.

Plain English: a reason to repeat conjunctions

How nonlegal readers read is sometimes not how legal readers do. Here's an example that shows that even though a lawyer would know that a list of tabulated items is disjunctive because there is an or before the last item, that is not obvious to nonlegal readers.

I received this question:

Consider this statute:

(e) Except as provided in subdivision (d), [blah, blah, blah] unless the agent has met the applicable standard of conduct by:
1. A majority vote of a quorum consisting of directors who are not parties to such proceeding;
2. Approval of the members with the persons to be indemnified not being entitled to vote thereon; or
3. Approval of the court in which such proceeding is or was pending.

Is the statute to be interpreted as "1 and 2 or 3"?

Or is it to be interpreted as "1 or 2 or 3"?
____________

This realization hit me again when I was testing jury instructions, and it became clear that the jurors were reading

a,
b,
c, and
d

As "any one of a, b, c, or d."

What to do? We started putting an and after each item:

a, and
b, and
c, and
d

It worked. In the next test, we could hear them discussing how "all these things have to be proved."

Word usage: "lower court"

A reader reports--

I clerked for a federal district court judge who did not like to be referred to as the
"lower court." As a result, I try to avoid that term in all of my legal writing.

Writing in law practice: a student says . . .

Partners receiving assignments tend to critique associate writing less on its effectiveness or accuracy and more on its similarity to the partner's own habits, however bad.

The memo: uses; tone and style

Uses for the memo
Another thing to keep in mind is that your memo may be put to a variety of uses once it's done. We've already discussed the idea that others at the office might read it or that it might go to the client. The memo might also be used as a building block for a court document such as a motion or brief. It might be the basis for a letter to opposing counsel or to a client. Or it might be make part of a report to a government agency. Because of these potential uses, you should take care that everything you put in your memo is accurate, clear, and thorough. Others will be relying on it.

Tone and style
All the information in this chapter so far should make it clear that the memo is a serious work product in a law office. As informal and easy as it may sound when someone asks you to "just get me a draft memo," or "just get me something in writing," you should take all memo projects seriously.

Even if someone says to turn in a "draft," that does not mean "rough draft," according to D. Robert White in The Official Lawyer's Handbook. Always assume the senior attorney wants a polished product.* No matter how informal you feel the assignment is, you should write in a professional and moderately formal way.

I say "moderately formal" because you do not need to adopt an artificially legalistic tone. But you do need to be sure you avoid anything the senior attorney might consider too informal, slang-y, or flippant. This is not a book about correct legal style; for that, I recommend The Redbook by Bryan Garner. But I can offer a few safe generalizations here. In a legal memo you should generally

• avoid the first person
• avoid contractions
• avoid trendy slang or nonlegal jargon
• use scrupulously correct grammar, punctuation, and word usage

If you have weaknesses in grammar, punctuation, and word usage, I recommend Woe Is I by Patricia O'Conner.**


*Bryan A. Garner, The Redbook: A Manual on Legal Style (2d ed., Thomson West 2006).

**Patricia T. O'Conner, Woe is I: The Grammarphobe's Guide to Better English in Plain English (Riverhead Books 1996).

The memo: objective analysis

Predictive, objective analysis
The traditional memo is usually objective. That is, it does not advocate a position. Rather, it explains the law in a neutral way and applies that law to a problem to predict the likely result for the problem. Thus, the legal memo contrasts with the legal brief (not to be confused with the case brief):

The brief takes a position and then marshals authority and arguments for that position in order to persuade a decision-maker.

The memo answers a question and then explains and applies authority in order to inform a decision-maker.

But some memos are different. Some are just research reports that do nothing more than give information about what the law is or what the law requires. I wrote many of these in my career. Here are the kinds of questions you might see in a research-report memo:

• What are the elements of an age-discrimination cause of action?
• Does Ohio law allow a self-proving affidavit for the witnesses to a will?
• What are the current regulations covering maximum interest rates in Texas?

Even the traditional memo, which raises a scenario and gives an analysis, comes in many varieties. You may be ask to--

• give just an answer to the question and forgo the written analysis
• give just the analysis and forgo the other parts of a traditional memo
• discuss the possible arguments for or against a certain position

It's your job to ask enough questions to be clear on exactly the type of memo you are to prepare--and whether you are to put it in writing.

Just a note: when I was told, as I often was, to "just give me an answer" or "just give me the analysis," I found that I did a much better job if I actually produced something close to a traditional memo for myself. You'll find that the process of writing up the entire memo is an excellent way to deepen your understanding of the material and find gaps in your reasoning. Besides, that memo can always go into the file or the database for later use by you or someone else. And about half the time I was later asked to "put what you told me in writing." So I had a head start on that.

The memo: audience--secondary

Audience--secondary
Many lawyers forget it, but nearly all memos have a large, potential secondary audience. The secondary audience includes other junior attorneys who might need to read your memo to learn the basic facts or law before doing a related assignment. The secondary audience includes other senior attorneys who are working on the same matter and who need to get up to speed on the legal issues. It includes future attorneys who find your memo in the database and want to rely on it or use it as a starting place for their own research.

The secondary audience sometimes includes the client, who may or may not be a lawyer. I once worked on a large bankruptcy case in which every memo I wrote went to the general counsel of the client, and she was a former partner at my firm. And the secondary audience may also include the hiring or advancement committee at your office.

Many of the formal aspects of a traditional memo are there to aid the secondary audience: the question presented and the facts especially. But other parts aid the secondary reader, too. Yet my former students regularly report that a full, traditional memo is often not what the senior attorney wants. I think some senior attorneys discount the needs of the secondary audience or fail to see the potential benefits of the fully developed memo. But as with anything in this book, your boss's preferences control.

The memo: audience--primary

Audience--primary
The primary audience for your legal memo is the person who assigned it to you, usually a senior attorney at your office. You should assume this person is busy and has many important client matters to work on. You would therefore be wise to produce a legal memo that is efficient and effective--—one that does not waste the senior attorney'’s time. Many parts of this book will be aimed at helping you do that.

You may also assume that the primary audience is knowledgeable about the law generally, but does not necessarily have a detailed knowledge of the area your memo addresses. So you may take general concepts of law for granted, but you should spell out fine points that are specific to the area you are writing about. (Exactly what is generally known and what is a fine point are things you must learn from experience.)

Knowing the primary audience and meeting its needs is crucial. For example, your primary audience may have very specific preferences for the way the memo looks, the way it is written, and the way it approaches the legal problem. It is your job to find out these preferences. One of my former students described that job this way:

After a while I began to realize that legal writing is not merely a matter of personal style. If you are writing a memo for a person who hates footnotes, you should not use footnotes. This may seem like common sense, but it is a lesson I learned the hard way. After a few of my memos received "constructive criticism" for being nontraditional, I began trying to determine a particular attorney's preferences before I began writing. I found that this could be accomplished in a couple of ways. If the person was somewhat intimidating, the best route was to find--on the firm's serve--—documents he or she had written and see what they looked like. If the person was more approachable or laid-back, I simply asked about his or her preferences. I began to see that while some people didn't care one way or the other, some had very strong opinions things.

Producing a memo that meets the expectations of the primary audience is always your most important responsibility in writing a memo. As Mark Herrmann, a law-firm partner put it in his book, The CurmudgeonÂ’s Guide to Practicing Law:

When you work with me, you can make yourself valuable or you can make yourself irrelevant. . . . I will read your work and fix your mistakes. This, however, is not my job.*

*Mark Herrmann, The Curmudgeon's Guide to Practicing Law 3, 27 (ABA 2006).

AALS program on jury instructions

At the Association of American Law Schools annual meeting in Washington D.C. this coming January, 2007, Scribes will sponsor a program: Writing Jury Instructions in Plain English

Presenters:

• Justice James Ward (chair of California's Committee on Civil Jury Instruction)
• Justice Carol Corrigan (chair of California's Committee on Criminal Jury Instructions)
• Professors Peter Tiersma, Wayne Schiess, and Joe Kimble (who have written about and been involved in jury-instructions projects)

Date and Time: Saturday, January 6, 10:45 a.m. to 12:15 a.m.

Place: Marriott Wardman Park Hotel, Hoover Room, Mezzanine Level

Brief writing: a student's view

One of my students interned at a court last summer and spent a lot of time reading and checking on briefs. She then wrote this advice. I couldn't have said these better, so here they are:

My intern partner and I came up with a few rules for brief writers based on our reading experience:

1. Always read through your work. If you have a typo on the first page that spell check would have caught, you are already behind in the count.
   
   
2. You think colorful language adds flair, but the interns think you're being ridiculous. One morning we spent an inordinate amount of time trying to find the meaning of "Kafkaesque conundrum," which perhaps shows that our vocabulary is lacking, but also suggests that if no one in a room full of law students knows the term off the top of his head, it probably shouldn't be used.
   
   
3. ALWAYS use pinpoint citations. The reader does not look favorably on the proposition you're attempting to support if that reader has to sift through the case to try to find where it might support your proposition. In fact, while looking for the cited proposition, the reader might find something that is damning to your client and use your case for that proposition instead.

Guest blogger: The serial comma and the summer job

This essay is by Ryan Gorsche, a law student at the UT Law School:

For ten minutes, the two assigning attorneys had championed my memorandum. Twenty-seven excellently written pages of hard-hitting legal analysis detailing exactly why, under the Trust Indenture Act of 1939, some underwriter a block down Wall Street needn't refile a Form T-1. Given their excitement, the short answer section might well have read "and by adding two drops of potassium tetra-iodide, we've cured cancer." I mean, have you ever seen two white-shoe, Wall Street lawyers bump chests? It's an odd sight because those tailored Jermyn Street shirts don't give much--but it's doable. But then: "Whoa, whoa, whoa, what is this? This is totally unacceptable"--like I'd somehow slipped the F-word into the memorandum. What is it about the presence of the serial comma that makes unusually calm lawyers lose their minds?

E.B. White and William Strunk's Elements of Style states: "In a series of three or more terms with a single conjunction, use a comma after each term except the last." And then, right before the reader passes to Rule 3--Enclosing Parenthetic Expressions Between Commas--they say: "This is also the usage of the Government Printing Office and of the Oxford University Press." The government, a prestigious English university, a Cornell English professor, and E.B. White--of whom James Thurber said "No one can write a sentence like White"--all support the serial comma. Why don't lawyers? Purposeful ambiguity.

Of all the serial comma's virtues, rhetorical proportion and accompanying precision is paramount. Read aloud the test sentence: "The flag is red, white, and blue." No doubt the reader notices that three colors compose the flag: it is red; it is white; it is blue. But without the serial comma, poor white and blue are relegated to some afterthought: the flag is red; oh, yeah, also white and blue.

Further, the serial comma saves the reader time. Upon reaching the second comma, the reader understands the writer is articulating a series. But without the serial comma, upon reaching the first comma, and noticing the pronounced absence of the second comma, the reader's mind no longer understands the sentence as a series. The reader is duped into expecting some sort of parenthetical clause--e.g., The flag is red, white and blue having left town together, in honor of blood. But the clause never comes, and the reader becomes the rereader.

But the lawyer's goal is precisely this ambiguity and confusion. Read this test sentence from a recent imaginary prospectus: "The high-yield bonds, being offered by the issuer and underwritten by the underwriter, maturing at some certain date and time and having been approved by the Securities Exchange Commission are likely to situate you as a 'good catch' amongst the opposite sex, to make your bank account overflowing with cash and enshrine you amongst your friends as the savviest investor since Jay Gould." Some commas might make plain exactly what the issuer promises.

But that's the point. When the impecunious investor, now the laughing-stock of his friends but dating plenty of women through pity, sues for securities fraud, those crafty lawyers will say: "Tut, tut. We never made such promises; we merely promised you dates. The clause regarding your friends' appreciation merely modified filling your own bank account with cash--which you have failed to do." Defendants win.

So how did it turn out? Partnership prospects be damned, all of my summer associate memorandums contained the serial comma. I still got the offer.

The memo: what is it?

What is a memo?
The legal memo is a written document produced mostly by less-experienced lawyers for more-experienced ones. It is the written presentation of the work done on a legal problem or assignment. It can be many things, but most often it is either--

1. a report of information acquired through legal research (a research report), or
2. an analysis, based on legal research, that supports the answer to or prediction for a legal problem (predictive legal analysis).

Both these types of memos often contain recommendations or advice, and both may be highly formal and formulaic or highly informal, even to the point that the "memo" is not a written document at all, but an email message or an oral report. This book is concerned with type number 2: predictive legal analysis presented in a formal, written document. This type of document is sometimes referred to as a traditional memo.

A traditional memo can have many purposes, but its primary purpose is to inform a decision arising from a legal problem. It is thus a decision-making tool, and many of its traits arise from this function. Careful lawyers keep that function in mind and regularly ask themselves, If I were handling this legal problem and making this decision, what would help me? What would I want to know?

Legal drafting: the drafter must understand it

A commenter writes--

• I have seen many instances of lawyers using boilerplate language that they could not explain--that they did not understand. I consider this malpractice in drafting.

The commenter is right. The legal-writing expert Bryan Garner says this:

If you don't understand a form provision--or don't understand why it should be included in your document--try diligently to gain that understanding. If you still can't understand it, cut it.

Bryan A. Garner, Legal Writing in Plain English: A Text with Exercises 117 (U. Chicago Press 2000).

Plain English: do you understand what you're writing?

He that busily hunteth after affected words and followeth the strong scent of great swelling phrases is many times at a dead loss of the matter itself.

The memo: reader aids

To make the text easier to read and skim, you may decide to break up the formal parts of a memo with numbering and headings. For example, if your memo addresses two issues, you should separate and number the issues. The brief answer or conclusion should then have the same numbering:

Questions

1. Under Federal Rule of Evidence 701 . . . ?

2. If Rule 701 does not apply, then . . . ?


Brief Answers

1. No. Applying Rule 701 will not cause . . .

2. Probably. If a court decides that Rule 701 does not apply . . .

In my view, to separate and number the questions and then to fail to match that with parallel structure in the brief answer is a serious flaw in a legal memo.

You may also use headings to separate and organize the discussion section of a memo. In fact, the longer and more complex the discussion, the more important it is to use headings to help the reader. Remember, the reader of a legal memo is usually busy and is often skimming the memo for key information. Headings will make that easier.

I suggest short, topic headings for major sections of the discussion. For example, in a memo addressing an issue that requires you to report on federal and state enactments as well as state case law, you might use these topic headings:

1. Federal regulations
   
2. Texas statutes
   
3. Texas case law

I suggest longer, explanatory headings for subtopics and subissues within larger topics and issues. In fact, you may write explanatory headings that are complete sentences:

1. Minors over age 14 are held to an adult standard for negligence and can be held negligent per se.
   
   
2. Minors under 14 are not held to an adult standard for negligence and are not held negligent per se.

Two things to remember: First, you can overuse headings and make the document cluttered. I have seen a legal memo in which every paragraph in the discussion had a heading. When every paragraph is emphasized in this way, nothing stands out. Second, you can underuse headings and leave the reader to negotiate long blocks of text. The goal is in the middle: enough headings to ease the reader's way but not so many you clutter up the text.

Better Legal Writing
Writing for the Legal Audience

The memo: formal parts

The traditional parts of a memo
In traditional legal memos, the text is usually divided into these formal parts:

Issue Presented (or Question Presented or just Issue or Question)
Short Answer (or Brief Answer)
Facts
Discussion
Conclusion

All these parts serve key functions and will be discussed in detail later. But the parts and their order vary. I have my students use the Conclusion to replace the Short Answer. When I practiced law, the firm preferred to have the Facts first. Use the preferences of your employer.

A Dean's mistakes

In a recent essay in the Texas Bar Journal, Baylor Law School's Dean, Brad Toben, committed a writing error twice. Can you spot it? (The first text is a sentence fragment that appeared as a heading, so that's not the error, and that's why there's no period.)

1. Burka's concern that the law's animation by larger societal and policy ends are largely ignored
   
   
2. However, apart from the benefit of clinics and field placements providing real client experiences, another approach -- well-conceived simulations -- offer advantages that collectively can surpass clinics and field placements.

The problem is that a verb does not agree in number with its subject:

1. law's animation . . . is [not are]
   
   
2. another approach . . . offers [not offer]

How do writers make mistakes like this? One way is by separating the subject from its verb with intervening words. In number 1, six words intervene between subject and verb; in number 2, three words intervene.

Generally, keep the verb close to its subject. But on the many occasions when words legitimately intervene, be sure the verb agrees with its subject.

Better Legal Writing
Writing for the Legal Audience

The memo: title and caption

Nearly all legal memos are titled "Memorandum." Beneath the title, most memos contain a simple caption that usually has four parts, like this:

To:
From:
Date:
Re:

Your employer may have specific preferences for these items, but if not, the first three are self-explanatory.

The Re line might contain client, file, or matter numbers and should state the subject of the memo. State the subject thoroughly but briefly. Your goal is to make it easy for someone not familiar with the subject matter to quickly decide whether to read this memo. Generally, be concrete and specific.

Instead of this:

Williams Industries issue

which is too general, or this:

Issue of Andrea Williams, President of Williams Industries, Inc., retaining money received from guests who rented company-owned condominium when the period the condominium was rented was Williams's company-granted timeshare

which is too detailed and long, try this:

Williams Industries--director's renting company condo to guests

The memo: page numbers, footers

You should make sure your memo has page numbers. I like the page number centered at the bottom of the page, but you have other options and your employer may prefer something else. It is traditional, but not crucial, to omit the page number from page one.

Many law offices place standard footers on all legal documents. When I was in law practice, every document created at the office had a footer containing numbers showing the lawyer who created the document, the typist who prepared it, the version of the document, and an identifying code that could be used to retrieve the document from the computer database. Even before you get a job, you might consider using a footer to show the file name of the document so it will be easy to find.

For court documents, many lawyers use a footer that gives the name of the document and page number out of the total pages, like this:

• Defendant Anderson's Motion to Dismiss page 1 of 9

This isn't as common in interoffice legal memos or transactional documents, but it can be helpful if the pages of a stapled document ever get separated.

You can use a header for page numbers and document information, but it isn't as common.

Latin: commenters speak

I have received these comments about my criticism of Latin in legal writing:

• In response to the suggestion that vel non can be translated as "or lack thereof": yes, it could be so translated, but that is a much more cumbersome phrase than the concise vel non.
  
  The main problem with the use of latinisms is the shocking decline in education in the last two centuries. Whereas Dr. Johnson's fluency in Latin conversation was notable but not unusual, few students today can translate their school mottos. Perhaps law schools should ditch their trendy [topics] in favor of three years of remedial Latin.
  
  
• I sense behind so much of the hostility to legal Latin the insecurity of the ineducated. Just because one doesn't understand Latin (even so blindlingly obvious a phrase as "inter alia"!) is no reason to strip law of one of its enduring traditions. So sorry you had to actually crack a book to look up something you didn't know before law school. Must have been quite a hardship.
  
  Why should the profession change to accommodate your ignorance? This selfish attitude is regrettably common and has gone hand-in-hand with the precipitous decline of the respectability of the profession. The law can do quite well without linguistic Jacobins like you, thank you very much.

Three random responses from Wayne Schiess:

1. Adults have been saying for centuries that the younger generation isn't as well educated "as we were." Maybe it's true. But as a matter of pure brainpower, the students I teach today are considerably smarter than I was and than my peers were and than the students I taught 15 years ago were. About all you can really say is that they don't study the same things you did.
2. When I hear a good reason for perpetuating the use of a dead language in law practice in 2006, I'll consider changing my mind. "It's traditional" is not a good reason. It was traditional for only men to practice law. Some traditional things should go. And "it's less cumbersome than or lack thereof" is unconvincing to me. I think all Latin is itself cumbersome. Besides that, I would never use the archaic phrase or lack thereof.
3. Although I concede that the experts aren't always right, all the experts who write books on legal writing say we should avoid Latin words that are not terms of art. All.

By recommending we avoid Latin, perhaps I reveal that I am "ineducated." But by defending it because it's traditional or because some older, well educated people understand it, you can end up sounding arrogant.

Legal Writing: 8 things you can do

The 8 best things you can do to improve your legal-writing style.

This advice is for analytical and persuasive writing, not for legal drafting. And I must add, thanks to a commenter, that these relate to mechanics, not to substance:

1. Avoid heavy connectors.
   
2. Minimize passive voice.
   
3. Consistently apply connections and transitions.
   
4. Use words precisely and consult the best sources to be sure you’re right.
   
5. Master the comma, the semicolon, the colon, and the dash.
   
6. Choose the vigorous, the crisp, and the conversational over the abstract, the stuffy, and the formal.
   
7. Choose the succinct over the verbose.
   
8. Seek critique.

Better Legal Writing
Writing for the Legal Audience

Plain English: it's possible

[Lawyers] are perfectly capable of verbally communicating the essence of a document to the client sitting across the desk but feel that they are undertaking a formalistic task requiring different skills when they attempt to put the same thing in writing.

—Sidney F. Parham, Jr., The Fundamentals of Legal Writing 73 (Michie Co. 1967).

[I]t is possible to write any legal document in the sort of language we use every day.

—Michele M. Asprey, Plain Language for Lawyers 2 (2d ed., Federation Press 1996).

Better Legal Writing
Writing for the Legal Audience

The memo: text layout

The default margin settings on your word processor are probably one-inch margins at the top and bottom and one-inch margins on the left and right. These settings are fine for the traditional legal memo, and you can use them unless those you work for tell you to change them.

The typeface probably defaults to Times New Roman, 12-point, and this is also acceptable for the legal memo.

Your line-spacing default will be single-spacing, but most legal memos are double-spaced. Double-spacing leaves room for the reader to write notes between lines, but it also uses up twice as much paper or takes twice as long to scroll through on the screen. It also makes it difficult to skim the document. Still, double-spacing is a tradition in legal writing.

If your supervisor allows you to use a modern approach, try a single-spaced document with larger type and larger margins: 13-point type with 1.3-inch margins.

You will need to choose between underlining and italics for parts of your legal citations, and I strongly recommend italics. Underlining is what we used to do when we used typewriters because typewriters couldn't do italics. You will also need to choose between ALL-CAPS and boldface for emphasis; this is usually for headings. Here again, you have a choice between what we used to do on typewriters (ALL-CAPS) and the modern printing practice (boldface). I recommend boldface.