Thursday, August 30, 2007

Begin well

Before

On January 31, 2005, WyTech Sales, Inc. (the “Borrower”) entered into an agreement with Nuttall Systems & Technology Transfer, Inc. (“NSTT”) under which all of the Borrower’s accounts receivable (“Receivables”) of which you are the obligor have been pledged to NSTT. The Borrower has established a lockbox (the “Lockbox”) for collection of Receivables. Accordingly, you are hereby instructed to remit all payments of Receivables of which you are, or have been, the obligor to:

* * *


After


This letter contains instructions for you to begin paying any accounts you owe WyTech Sales, Inc. to Nuttall Systems & Technology Transfer, Inc.

Background
On January 31, 2005, WyTech Sales, Inc., the borrower, agreed with Nuttall Systems & Technology Transfer, Inc. to give Nuttal all its accounts receivable as collateral. You are the payer on some of these accounts. From now on, pay those accounts to a lockbox the borrower has established here:

* * *

Prepositions, ending with

I wrote--

I guess that's part of what blogs are for.

I meant to write--

I guess that's part of for what blogs are.

Self-indulgent blather, part 3

I feel rather vulnerable having exposed my inner feelings about my two professional worlds. But I also feel a sense of unburdening from the self expression. I guess that's part of what blogs are for.

If you are tempted to feel sorry for me, please don't. If you are tempted to conclude that I'm wallowing in self pity, reconsider. I'm not wallowing in it; I'm just taking a dip. I've got it pretty good. In my files, I have the resumes of six people who would love to teach legal writing at Texas.

Off to class.

Self-indulgent blather: My two worlds, part 2

I live in two professional worlds.

I know I am not unique. We all live in many worlds. All I am trying to say is that in my job, I live in two very different worlds. Here is how I would describe my second world.

In my second world, I am a senior lecturer. I have a three-year contract for my job, with no possibility of tenure. I do not have the title "Professor." When someone calls me "Professor Schiess," I wonder if I should correct it. In my second world, I teach law students how to do legal citation, how to format a legal memo, and how to find legal authorities. I do not teach substance or doctrine; I am a skills trainer. My salary, after 15 years, is 80% of the salary a first-year law professor makes at my law school.

In my second world, my employer forms a task force to evaluate the legal-writing program but does not invite me to join the task force; the task force has no legal-writing instructors. Five years later, my employer charges a committee to evaluate the legal-writing program. Again, neither I nor my colleagues who teach legal writing are invited to participate.

In my second world, my knowledge of writing generally, and my knowledge of legal writing specifically, are not valued. My knowledge is not considered unique or special, because all law professors consider themselves to be knowledgeable about writing and legal writing. In my second world, I write a book and the law school does not mention it on its website. A tenured professor writes a book, and it is announced on the website; a reception is held.

In my second world, I am a child, not a grown-up.

Self-indulgent blather: My two worlds, part 1

Professionally, I live in two worlds.

Now, I don't mean to say I'm unique. We all live in many worlds. You may have a domestic world, a social world, and a professional world. I do too. All I'm trying to say is that in my job as a legal-writing teacher, I lived in two very different worlds.

I don't really know what to call these worlds, but here is how I would describe my first world.

In my first world, I am the Director of Legal Writing at a top-20 law school. My job carries with it prestige. I get respect. In my first world, I have written and published two books. The few people who have read them, liked them. In my first world, I get unsolicited invitations to write books and articles. In my first world, I am almost considered prolific because I maintain a blog, write and publish articles, and write and publish books.

In my first world, I am in demand as a seminar speaker. Lawyers pay me to talk about legal writing. Law firms hire me to tutor young attorneys on legal writing. In my first world, lawyers and law students like my classes. Sometimes they even rave. In my first world, I turn down speaking engagements because I don't have the time.

In my first world, my colleagues consult me with questions about writing. Lawyers email me questions about writing.

In my first world, companies hire me to rewrite their documents in plain English. State organizations ask me to apply my expertise to jury instructions. Students ask me to review their writing samples and to supervise their scholarly writing. Several students have asked me to supervise their work revising a legal-style manual.

In my first world, I am a capable, professional, legal-writing expert with the respect of my peers and of the practicing bar. My mother is proud of me. In my first world, even I sometimes have to pinch myself when I contemplate that a smart-aleck kid from a rural town--where the high school did not have advanced-placement courses--is now the director of legal writing at one of the finest law schools in the nation.

But my second world is different.

Wednesday, August 29, 2007

Party of the First Part podcasts

Adam Freedman of Party of the First Part, which I recommended recently, also provides legal-language podcasts.

You can get them on iTunes, here.

Tuesday, August 28, 2007

Article on "comma dispute"

The legal-drafting expert Kenneth Adams, author of A Manual of Style for Contract Drafting--which I recommend--wrote this account of a legal dispute in Canada. The dispute seemed to hinge on a comma, and one of the parties retained Ken as an expert. I think it's fascinating. But I'm a writing nerd.

Here is the article.

Monday, August 27, 2007

Recommended: Party of the First Part

I'd like to recommend Party of the First Part, an entertaining and useful website and blog by Adam Freedman:
  • http://www.partyofthefirstpart.com/
You may also want to consider submitting an entry for his Golden Gobbledygook awards.

Friday, August 24, 2007

Funny phrases

As people kept piling onto an airport-parking shuttle, the driver had to tell some of them to wait for the next shuttle: "I had to draw a line in the sand somewhere."

In commenting on a professional golfer's tendency to play poorly under pressure, a sports commentator said, "We'll have to see how he does when the chips are on."

My new website

My website is here:

and my blog is here:

shall query

Some have a love affair with shall.

For example, they change this statement "A Service Award is credited to the account of a participating member" to "A Service Award shall be credited . . ."

Here's another example: "Eligible members earn Service Award points" becomes "Eligible members shall earn . . ."

Is this good drafting?

Beg the question

"Beg the question" does not mean "raise the question." Or at least it should not be used to mean that. I fear we have lost on this one, though.

Sunday, August 19, 2007

Overdeleting that

Have you ever heard the advice to delete unnecessary thats? It's good advice unless you make it a fetish. If you overdo it, you give readers constant miscues like these:
  • The judge held the glass was not a deadly weapon.
  • Mr. Li acknowledged being a minority made him more sensitive to discrimination.
  • The defendant argues eventually the housing supply will increase.

If you don't know where that belongs in these sentences, check out Garner's Dictionary of Modern Legal Usage under "Miscues" and "that."

Friday, August 17, 2007

Do jurors understand "unanimous"?

According to Judge Buchmeyer in his Texas Bar Journal column in May 2007, a jury submitted this question:
Question #5 states:

"If you unanimously answered Question #1 YES, then answer the following question."

Does "unanimously" mean all 12 jurors, or can it mean if we answered Question #1 with a vote of 10 jurors?"
The answer is that it requires all 12.

But I saw the same confusion in mock jurors when we tested our revised Texas Pattern Jury Charges in Dallas County in spring 2005. We must face the fact that not all jurors understand the meaning of unanimous. We must face the fact that when we tell them that on some questions 10 of 12 is enough, they may assume that 10 becomes unanimous.

In my revision, I changed "unanimous" to "all of you" or "all 12."

Book recommendation

I wrote the foreword for this book. It's a good book:

Eclectic

Eclectic does not mean eccentric.

Thursday, August 16, 2007

A new book on legal writing

Check out this new book on legal writing:

Wednesday, August 08, 2007

Preaching against passive voice--passively

Verbatim text from a writing guide. Directly before the recommendation to avoid the passive voice, there are nine style pointers. Six are in the passive voice, and a seventh is perhaps a "whiz" deletion that is passive (in bold):

Numbers
Spell out all numbers from one to nine, except in the cases of percentages and references to report chapters, sections or exhibits, which are generally rendered numerically.

Addresses also are rendered as numbers, unless the number is part of a building's formal name.

Numbers that begin a sentence are spelled out.

Never use the percentage symbol in text.

All numbers featuring decimals should be rounded to a single place.

Decimal numbers less than one are preceded by a zero.

Fractions of a dollar are written as cents.

In text references to numbers of a million or more, use the words "million" or "billion" rather than writing the entire number out.

Omit unnecessary zeros. Never use the word "dollars" with a dollar sign. Thousands take a comma unless they represent years or numbers attached to legislation.


Passive voice
Avoid it.

* * *

Sounding scholarly--or not

I said in an earlier post that the desire to get published and earn tenure probably causes legal-writing teachers to mimic the stuffy, stilted writing style of traditional legal academia. Because legal-writing teachers are often on the fringes of the legal academy, we may feel all but compelled to "sound scholarly."

A commenter responded:
  • Sounds like a hopeless situation. So what's the answer? Will our chances for tenure improve if we write a natural-toned article that is substantively sound but was rejected by the law review journals? Will the tenure committee take into account a system that is outdated and out of touch?
This question reflects excellent insight. My thoughts:

I don't see the system changing soon, so no, I don't think most tenure committees will take into account the outdated system. Nor do I think most student-run law reviews will accept crisp, plain, readable articles. With all humility, I've had two such articles rejected by multiple law reviews.

But it's not hopeless because of The Scribes Journal of Legal Writing, Perspectives: Teaching Legal Research and Writing, Legal Writing: The Journal of the Legal Writing Institute, and the Journal of the Association of Legal Writing Directors.

Friday, August 03, 2007

Sentence problems? Help me out.

I have been asked to comment on these sentences. I find myself thinking they are okay. What do you think?

In disagreeing with the ALJ's finding, the Plaintiff argues that the ALJ failed to adequately evaluate the claims of disabling pain and limitations.

In conducting this inquiry, the ALJ considers objective medical evidence from treating or examining physicians, as well as other factors such as information from the claimant.

Thursday, August 02, 2007

Austin Lawyer magazine: Changes in legal writing

Changes in Legal Writing
By Wayne Schiess (Originally appeared in Austin Lawyer, July 2007)

I stay current on legal writing the way you stay current on your practice area. I keep up on the trends in legal writing. Yes, trends. Are you surprised legal writing changes and evolves? It does, and here are three areas that are changing right now.

1. Legal citation is changing.
The 18th edition of The Bluebook is out--are you still using the edition you got in law school? Well things have changed in the world of citation. The new Bluebook is different from earlier editions: for one thing it's more reader-friendly. That's because it has competition from a new citation manual. It is called the ALWD Citation Manual. Visit .

Another trend is vendor-neutral or medium-neutral citation. This means using citations that do not rely on commercial products. For example, citations to the South Western Reporter necessarily rely on proprietary, Thomson West products. Medium-neutral citations rely on government-produced or noncommercial sources. The use of the Internet to publish legal documents is making medium-neutral citations possible and practical. The American Association of Law Libraries has produced a guide for medium-neutral citation called the AALL Universal Citation Guide. Visit and click on “Product and Publications.”

2. Legal drafting is changing.
The way transactions are documented is the subject of more research and scholarly writing than ever before; we're seeing an explosion of books and articles on legal drafting. If you draft transactional documents, check out Transactions: The Tennessee Journal of Business Law, which has run a series of articles that present annotated deal documents. Get Kenneth Adams's book: A Manual of Style for Contract Drafting, the most comprehensive and authoritative guide to correct drafting language. Consult Negotiating and Drafting Contract Boilerplate, edited by Tina Stark. It's an exhaustive treatise on standard provisions with preferred language.

Many law schools now offer a course on transactional drafting, and those courses use new, sophisticated textbooks from Thomas Haggard, George Kuney, and Tina Stark. So fewer young lawyers will face that daunting first contract-drafting assignment with the fearful thought that “I've never even seen a contract, let alone drafted one.”

In these courses and in these textbooks, students learn the drawbacks of relying too heavily on outdated, unquestioned forms that have been around since 1907--which brings me to the third change in legal writing.

3. The readability of legal writing is changing.
More and more lawyers accept that legal text need not be much different from other professional writing. More and more clients and government agencies insist that legal writing be understandable to nonlawyers. And fewer and fewer lawyers, clients, and judges accept gratuitous jargon, hyperformality, and unnecessary density in legal writing.

What about you? Do you, as much as possible, write in a natural style that is readable and clear? I want to show you how. More to come.

Academic writing by legal-writing teachers

I have said that "I am often disappointed in the quality of writing published by legal-writing teachers." A commenter asked me to elaborate. To be clear, I am talking about academic legal writing in law reviews, not about short, practice-oriented pieces. I'll start with the problems I see in traditional academic legal writing:

Excessive nominalizations
Excessive passive voice
Long sentences
Excessive abstraction
Hyper-formality
Lack of a natural-sounding voice
Sprinkling of grammar, punctuation, and word-usage mistakes
And in general, a lack of reader focus.

These problems are understandable for many reasons.

First, law professors haven't had any more training in professional writing than other lawyers and judges, so we shouldn't expect academic legal writing to be any better than typical legal writing.

Second, many law professors consider themselves highly intelligent, and they sometimes try to show off that high intelligence with a stuffy, intellectual-sounding writing style.

Third, many law review articles are written only to earn tenure or accolades within legal academia; they need not appeal to a larger audience, so they need not be reader-focused. In fact, I cynically suggest that many law-review articles are read only by the hiring, promotion, and tenure committees at law schools. And they read them only because they have to. With no need to engage readers, writers produce mediocre writing.

Fourth, those who choose articles and prepare them for publication are students. Often they are extremely smart, but very few have the substantive knowledge to discern quality scholarship or the editorial knowledge to make the writing readable.

Fifth, because most law-review articles are stuffy and intellectual-sounding, writers assume that if they want to get published, they must sound stuffy and intellectual.

Now to my point: I have read many, many law-review articles written by legal-writing professors, and I think the majority are just as poorly written as law-review articles by other law professors. I think we should be able to do better. But we are probably influenced most heavily by my fifth cause above: to get published, we think we have to sound stuffy and intellectual--all the more because our status and tenure chances are low.