Effective Legal Writing · The fewer the words that can be made to convey an idea, the clearer and the more forceful that idea. And The fewer the words that can be made to convey

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Effective Legal Writing

Wayne Schiess | TexasLaw | Legalwriting.net

“The preferred style is assertive, but reasoned and even a little understated.”

Louis J. Sirico & Nancy L. Schultz, 

Persuasive Writing for Lawyers 

and the Legal Profession 28 (2d ed. 2001).

1. Reconsider intensifiers

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The State clearly had legitimate reasons for excluding the two panel members herein discussed. The trial court was clearly of the opinion that in both cases the State exercised its peremptory strikes in a racially neutral manner. The matters quoted above clearly demonstrate that there were very good nonracial reasons that the State would not wish to have either panel member on the jury. Because the trial court’s ruling is clearly well supported by the record, its decision should not be overturned.

What are intensifiers?

blatant egregious substantiallycertainly highly totallyclearly manifestly verycompletely obviously whollyextremely plainly undoubtedly

Intensifiers aren’t wrong …

clearly erroneoushighly offensive egregious harmsubstantially outweigh

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“Clearly” is king

“[Clearly] is so overused in legal writing that one has to wonder if it has any meaning left.”

“Doctrinaire adverbs such as clearly and obviously are perceived as signaling overcompensation for a weak argument.”

“[C]learly lulls legal writers into a false sense that they’ve given substantive, persuasive reasons for a legal conclusion.”

Mark Cooney, The Mismatch, 90 Mich. B.J. 50, 50 (June 2011).Anne Enquist & Laurel Currie Oates, Just Writing 123 (3d ed. 2009).

Bryan A. Garner, The Winning Brief 523 (3d ed. 2014).

Other criticism of intensifiers

“When most readers read a sentence that begins with something like obviously, undoubtedly, . . . and so on, they reflexively think the opposite.”

“When you cut the intensifier, your phrasing usually gains intensity.”

“Perhaps it’s counterintuitive, but intensifiers . . . tend to weaken prose, not intensify it.”

Joseph M. Williams, Style 123 (9th ed. 2007).

John R. Trimble, Writing with Style 70 (3d ed. 2011).Wayne Schiess, Writing for the Legal Audience 8 (2d ed. 2015).

Data

A recent law-review article suggests that overusing intensifiers is bad—very bad. In a study of U.S. Supreme Court briefs, the authors found that increased intensifier use was correlated with losing, especially for appellants. The authors allege no causal connection—they couldn’t prove it was the intensifiers that lost the cases—but the correlation is interesting.

Lance N. Long & William F. Christensen, Clearly, Using Intensifiers Is Very Bad—

Or Is It? 45 Idaho L. Rev. 171, 180 (2008).

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1a. Drop them.

Clearly, an attorney is not an expert on what is a “Doberman,” and there is no showing in the affidavit that Squires is an expert on Dobermans. It clearly is a fact issue for the trier of fact.

An attorney is not an expert on what is a “Doberman,” and there is no showing in the affidavit that Squires is an expert on Dobermans. It is a fact issue for the trier of fact.

Appellant’s position clearly ignores the Supreme Court’s decision in Michigan v. Mosley, 423 U.S. at 120.

Appellant ignores the Supreme Court’s decision in Michigan v. Mosley, 423 U.S. at 120.

1b. Replace them.

very smallvery sureextremely smartvery largequickly wenthighly capablecompletely wrong

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The first paragraph of the claimant’s Statement of Facts from the bottom of page nine to the top of page ten is completelywrong.

The first paragraph of the claimant’s Statement of Facts from the bottom of page nine to the top of page ten is incorrect.

Upon first reading, this statute appears to place a very large burden on the Commission.

Upon first reading, this statute appears to place a large burden on the Commission.

Upon first reading, this statute appears to place a massiveburden on the Commission.

Instead of this: Write this: Instead of this: Write this:

very afraid terrified very loved adored

very angry furious very neat immaculate

very bad atrocious very old ancient

very beautiful exquisite very poor destitute

very big immense very pretty beautiful

very bright dazzling very quiet silent

very capable accomplished very risky perilous

very clean spotless very roomy spacious

very clever brilliant very rude vulgar

very cold freezing very small tiny

very conventional conservative very strong unyielding

very dirty squalid very stupid idiotic

very dry parched very tasty delicious

very eager keen very thin gaunt

very fast quick very tired exhausted

very fierce ferocious very ugly hideous

very good superb very valuable precious

very happy jubilant very weak feeble

very hot scalding very wet soaked

very hungry ravenous very wicked villainous

very large colossal very wise sagacious

very lively vivacious very worried anxious

44 Ways to Avoid Using Very, https://writerswrite.co.za/45-ways-to-avoid-using-the-word-very/

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1c. Use a dash.

Obviously, no witness other than the employee knows exactly what occurred on the occasion in question.

No witness—other than the employee—knows exactly what occurred on the occasion in question.

Using the dash—basics

Calhoun’s statement (which was false) sought to blame Scoville Industries.

Calhoun’s statement, which was false, sought to blame Scoville Industries.

Calhoun’s statement—which was false—sought to blame Scoville Industries.

On the video, Medina is shown traveling at a very high rate of speed down a public highway for a considerable distance and completely disregarding a stoplight.

On the video, Medina is shown moving quickly [racing, rushing, speeding, zooming] down a public highway for a considerable distance—and disregarding a stoplight.

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1d. End strong.

The exclusion of this evidence clearly warrants reversal under the court’s test.

Under the court’s test, the exclusion of this evidence warrants reversal.

It is extremely significant that Clayton had no opportunity to speak with counsel, or his family, in the thirteen hours before he agreed to make a formal statement.

In the thirteen hours before he agreed to make a formal statement, Clayton had no opportunity to speak with his family or his lawyer.

1e. End strong—with a dash

In the thirteen hours before he agreed to make a formal statement, Clayton had no opportunity to speak with his family—or his lawyer.

No witness knows exactly what occurred on the occasion in question—no one other than Appellant.

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1f. Try bullets.

The evidence was undoubtedly critical to the defense because it concerned a third-party confession to the crime and an explanation as to why other witnesses might have testified that Appellant was the shooter, in addition to suggesting a motive for Garza to lie about Appellant’s degree of involvement.

This evidence was critical to the defense:• It concerned a third-party confession to the crime.• It explained why other witnesses might have testified that

Appellant was the shooter.• It suggested a motive for Garza to lie about Appellant’s

degree of involvement.

2. Edit for concision

Why care about concision?

The fewer the words that can be made to convey an idea, the clearer and the more forceful that idea.

And

The fewer the words that can be made to convey an idea, the less time it will take the reader to read the idea.

David Lambuth, The Golden Book on Writing20 (2d ed. 1983).

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Why care about concision?

A lawyer asked permission to submit a brief in excess of the page limits. Denied. He submitted his over-long brief anyway. Rejected. So he submitted a brief within the page limit, but he had shrunk the typeface and narrowed the margins. Result?

The court dismissed the case.

White Budd Van Ness P'ship v. Major‐Gladys Dr. Jt. Venture, 811 S.W.2d 541 (Tex. 1991).

Why care about concision?

Counsel asked the court for permission to exceed the word limit on a brief for rehearing (4200 words) and simultaneously filed the 5500-word brief. He said the original draft was 8000 words and had been “extensively reviewed with the intent to reduce the length.” The court stated, “We gather that these efforts were not entirely successful.”

The court struck the brief, ordering it rewritten and resubmitted.

U.S. v. Molina‐Tarazon, 285 F.3d 807 (9th Cir. 2002).

Why care about concision?

A lawyer certified his brief at 13,877 words, just under the limit of 14,000, yet the court’s count showed 18,000. He admitted that his brief was too long but said he accidentally counted only the words in the body text, despite the requirement to include headings, footnotes, and quotations.

The court chastised the lawyer in its opinion, denied the motion to file an oversize brief, and dismissed the appeal as frivolous.

Abner v. Scott Mem'l Hosp., 634 F.3d 962 (7th Cir. 2011).

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However, the company points out that assistance will be provided by the management team in order that project completion may be achieved by the employees.

However, assistance will be provided by the management team in order that project completion may be achieved by the employees.

However, management will provide assistance in order that the employees may achieve project completion.

However, management will assist in order that the employees may complete the project.

However, management will assist the employees so they may complete the project.

But management will help the employees finish the project.

2a. Cut throat‐clearing phrases.

It is important to note that a recent case addressed the question as to whether an employee suing for retaliation must have encountered the retaliatory action himself.

A recent case addressed the question as to whether an employee suing for retaliation must have encountered the retaliatory action himself.

More throat‐clearers

It is clear that …It is important to point out …It would appear to be the case that …A key aspect of this question, which must not be overlooked, is …Appellant would respectfully draw to the court's attention that …

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We note that section 2 of article 3445c specifically requires one board member to be a Registered Nurse who is actively involved in an educational program.

Section 2 of article 3445c specifically requires one board member to be a Registered Nurse who is actively involved in an educational program.

2b. Assess passive voice.

On April 4, 2008, Yasar alleged that in a conversation, he was told by his supervisor, Russell Dunagan, that if Yasar continued to pursue the complaint, Dunagan would have to discipline and possibly terminate a fellow Muslim and co-worker of Yasar, James Lira.

On April 4, 2008, Yasar alleged that in a conversation, his supervisor, Russell Dunagan, told him that if Yasar continued to pursue the complaint, Dunagan would have to discipline and possibly terminate a fellow Muslim and co-worker of Yasar, James Lira.

Where's the actor?

Mistakes were made.

The email was deleted.

Your client will be deposed.

The files have been deleted.

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Useful passive voice

The actor is unknown or irrelevant: • The police were notified (we don't know or care by whom).

Your focus is on the object: • Treyco’s account was frozen, not Anderson’s.

You seek to avoid the appearance of responsibility: • All the claim files had been lost.

But passive voice is always longer—

… for the same information:

Treyco’s account, not Anderson’s, was frozen by the bank. (9)The bank froze Treyco’s account, not Anderson’s. (7)

All the claim files had been lost by Southwest Insurance. (10)Southwest Insurance had lost all the claim files. (8)

Assess passive voice.

The expenditures made by the supporter would count toward the candidate’s expenditure limits if the expenditures were authorized by the candidate.

The expenditures made by the supporter would count toward the candidate’s expenditure limits if the candidate authorized the expenditures.

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2c. Revise unnecessary nominalizations.

Isam Yasar, a firefighter and a Muslim, brought suit against his employer, the District of Columbia, for retaliating against him for opposing the practice of applying limits to the amount of time Muslim employees could take for prayers.

Isam Yasar, a firefighter and a Muslim, sued his employer, the District of Columbia, for retaliating against him for opposing the practice of limiting the amount of time Muslim employees could take for prayers.

What are nominalizations?

They are nouns created from verbs. When you use the noun form, you need additional words to get your meaning across.

make a payment payenter a settlement settleprovide assistance to assist help

By the way—

nom.hidden verbsburied verbszombie nounsvampires

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Common nominalizations in law

be dependent uponbe in violation ofbring suit againstcome to a resolutionconduct an analysisconduct an examinationengage in a discussiongive notice tomake a payment

make a recommendationmake an argumentmake an assumptionmake an inquirymake an objectionperform a reviewplace emphasis onprovide an explanationtake into consideration

Why do we nominalize?

Because we often think conceptually.

We think of things, so we write using nouns that name the things. That’s fine, and nominalizations aren’t incorrect, but scrutinize them when you revise and try the verb form instead.

Revise unnecessary nominalizations.

The drafter’s expectation was that the lawyer for the seller would make an objection.

The drafter expected the lawyer for the seller to object.

The drafter expected the seller’s lawyer to object.

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2d. Shorten compound prepositions.

The District sought summary judgment on the basis that Yasar had not suffered a materially adverse action because the threats were not directed at him but at a co-worker.

The District sought summary judgment, alleging that Yasar had not suffered a materially adverse action because the threats were not directed at him but at a co-worker.

More compound prepositions

by means ofby reason ofby virtue ofduring the course offor the purposes of in accordance within order toin relation toin terms of

in the event thatin the nature ofon the basis ofsubsequent towith a view towith reference towith regard towith respect to

Shorten compound prepositions.

The senior attorney said that she wanted to discuss Kenton’s work in connection with the disclosure statement with a view toward improving his writing.

The senior attorney said that she wanted to discuss Kenton’s work on the disclosure statement so he could improve his writing.

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2e. Diminish verbal sesquipedality.

A recent case addressed the question as to whether an employee suing for retaliation must have encountered the retaliatory action himself.

A recent case addressed the question as to whether an employee suing for retaliation must have faced the retaliatory action himself.

Diminish verbal sesquipedality.Use simpler words.

Instead of Consider

accede to grant, allow accompany go with accomplish do, achieve accordingly so, thereforeaccumulate gather, get, haveadditional more, added, otheradditionally and, also adjacent to close to, near, next toadminister manage advantageous useful, helpfuladvise tell, recommend afford give

Joseph Kimble, 80 Michigan Bar Journal 72 (Aug. 2001)

Instead of Consider

allocate give, divide, set asidealter change alteration change alternative other, other choiceanticipate expect append attach apprise tell, inform approximately about, almost, roughlyascertain find out, learn, assist help assistance help attain reach, become attempt (verb) try

Big words and brainpower . . .

“So if you have a big vocabulary and know a lot of rare and fancy words, that’s fine. Be proud of your knowledge. It’s important in reading and in learning. But when it comes to using your vocabulary, don’t throw those big words around where they don’t belong. … It’s a good rule to know as many rare words as possible for your reading, but to use as few of them as possible in your writing.”

Rudolf Flesch, How to Write Better 25, 35 (1951).

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Use simpler words.

In the third quarter, National will commence utilizing the revised methodology for billing statements reflected in its February 2016 policy release.

In the third quarter, National will start using the revised method for billing statements stated in its February 2016 policy release.

2f. Opt for light transitions.

Therefore, whether Yasar and Lira had a close enough relationship that retaliation against Lira was materially adverse to Yasar was a genuine dispute as to a material fact.

Thus, [So] whether Yasar and Lira had a close enough relationship that retaliation against Lira was materially adverse to Yasar was a genuine dispute as to a material fact.

Beginning a sentence with . . .

*and (furthermore, moreover, additionally)*or (conversely, on the other hand)*nor (on the contrary)*so (therefore, as a result, consequently)**but (however, nevertheless)**yet (however, nevertheless)

*Not wrong; just informal.**Should be fine, but check with the boss.

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Opt for light transitions.

However, these alternative lines of inferential argument bear their own problems.

These alternative lines of inferential argument, however, bear their own problems.

“But these alternative lines of inferential argument bear their own problems.”Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1724 (2017) (Gorsuch, J.)

3. Block that block quotation!

One judge sarcastically says:

“Block quotes, by the way, are a must; they take up a lot ofspace but nobody reads them. Whenever I see a block quote Ifigure the lawyer had to go to the bathroom and forgot to turnoff the merge/store function on the computer. Let’s face it, if theblock quote really had something useful in it, the lawyer wouldhave given me a pithy paraphrase.”

Hon. Alex Kozinski, The Wrong Stuff, 

1992 B.Y.U. L. Rev. 325, 326 (1992).

3a. Be sure you need the block

Anything you decide to block-quote must be vitally important.

If you harbor doubts about how vital the full-text quotation will be, don’t use a block quotation. Paraphrase and summarize.

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3b. Cut, cut, cut

First, try to shorten it to below 50 words, so you won’t to need to block quote.

Second, try to shorten the block quotation itself: One thing more annoying than a block quotation is … a long block quotation.

3c. Invite the reader to … read

Lead-in to the block with an inviting, persuasive lead.

The lead should—• show why the quoted language is important or • assert something the quotation will prove.

It’s entirely acceptable to paraphrase the key point of the block quotation and use that as a lead-in. The lead-in should make the reader think this:• “Hmm. Is that so? Well maybe I should read this block

quotation to be sure.”

3d. The lead‐in

Adequate but average:• The court stated as follows:• The statute provides the following:• The hearing officer made the following ruling:

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3e. A better lead‐in

The State intervened in operating Lincoln County Schools, and the Superintendent thus acted under authority of the Education Code, which states as follows:

The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state superintendent to fill positions of administrators and principals.

[citation]

The State then intervened in operating Lincoln County Schools. Upon that event, the Education Code granted the Superintendent the right to make personnel decisions for the vacant principal positions:

The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state superintendent to fill positions of administrators and principals.

[citation]

3f. Follow The Bluebook?

Are you going to strictly follow The Bluebook’s rule on length?

In rule 5.2, The Bluebook says you must block only quotations of 50 words or more.

I say you can treat that rule as a recommendation, not binding authority. If you have a shorter quotation you’d like to highlight, you may set it off as a block if you wish.

4. Don’t be cute

4a.As part of the joint appendix submitted to the appellate court, counsel had included a photocopy of the trial court’s opinion on which someone had made handwritten margin notes stating “WRONG” next to various of the trial court’s findings.

The court considered this “indecorous and unprofessional” and stated its hope that it “would not recur.”

Allen v. Seidman, 881 F.2d 375 (7th Cir. 1989).

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4b.In the brief, instead of spelling out one of the arguments, the appellants referred the Texas Supreme court to “the arguments made on this issue in their responses to [the appellee’s] motions for summary judgment.”

The court correctly pointed out that “[w]ere we to approve this tactic, appellate briefs would be reduced to a simple appellate record reference to a party's trial court arguments.” And the tactic “would be an open door for parties to circumvent the appellate brief page limitations.”

Thus, the court held that it would consider only the arguments that were actually in the appellants’ brief.

Guerrero v. Tarrant County Mortician Servs. Co., 977 S.W.2d 829 (Tex. 1998).

5. Be nice

5a.

A lawyer wrote the following about the trial judge:

• “Was this case the pursuit of madness to a friendly court?”

• “It is submitted that something far off and out of line had to be involved to block what should have been a clear and obvious decision.”

• “[The trial judge’s] “cockeyed and absurd and demonstrated a most startling absence of legal knowledge and irrational decision-making . . . .”

Appellate court referred the lawyer to the state bar.

Shortes v. Hill, 860 So. 2d 1 (Fla. Dist. App. 2003). 

5b.One attorney attacked … everybody. The attorney wrote that—

The Bankruptcy judge conducted himself in a manner of “impermissible advocacy of a litigant’s cause,” and his decision was “utterly absurd [and] transcends the bounds of an ordinary error, evincing . . . fundamental ignorance.”

The sale at issue was “judicially sanctioned grand larceny.”

“The Bankruptcy Trustee committed fraud, deceit, defalcation, and malfeasance.” The Trustee was an “idiot.”

“The Trustee and others are thieves and liars acting in concert with thieves and liars under the approving nod of a sympathetic court.”

$5000 sanction from the appellate court.In re E. 80th St. Eqs., Inc., 218 F.3d 109 (2d Cir. 2000).

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6. Read up on it (TRAP)

“Here, it is evident that [the attorney] did not sufficiently review the Texas Rules of Appellate Procedure or the legal issues involved. Instead, she raised seventeen issues—far more than the three issues raised by the other appellants—many of which were incoherent, illogical, and inadequately briefed. She should not have filed a brief that so unnecessarily burdened appellees and this Court and, being a lawyer, she should have known that the issues wee either inadequately briefed or meritless.”

The court imposed sanctions for filing a frivolous appeal.

Dillon v. Rosalie Dahl Estate Trust, 2003 WL 1565959 *8 

(Tex. App.—Houston [14th Dist.] 2003 no pet. hist.). 

7. Stand firm on literally

The firm is literally printing money.

We literally bombed them for 52 points.

I was so scared I literally died.

Fitzgerald: He literally glowed.

—The Great Gatsby, 1921

Dickens: “Lift him out,” said Squeers, after he had literally feasted his eyes, in silence, upon the culprit.

— Nicholas Nickleby, 1839

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Hurray for these:

Read literally, this sentence makes little sense, as it is obvious that the Government was under no contractual obligation to indict the defendant.

When Cantrell stated that he “kicked Lester off the job site,” he did not mean he literally kicked him.

The quoted sentence, read literally, fails to indicate when the confidential informant observed Naylor in possession of methamphetamine.

Based on the Government's accusations, however, Ms. Falcone's allegedly false statements were literally true at the time that they were made.

Wayne Schiess

Email: [email protected]

Website: Legalwriting.net

Blog: LEGIBLE

Book: Legal Writing Nerd: Be One

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