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Wayne Schiess's legal writing blog @ Legalwriting.net is moving to a new URL:

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Wayne Schiess's blog is moving

Wayne Schiess's legal writing blog @ Legalwriting.net is moving to a new URL:

http://blog.legalwriting.net/

Please point your browser to the new location or update your syndicator. Thank you.

Sorry for the inconvenience. This new blog has more features and is no longer hosted on the University's server.

A blog of note

You might enjoy this blog:

Contract Lawyering Made Easy

In particular, check out the posts on legal writing.

Teaching Fellows as legal-writing teachers

At the (new) legal writer, Raymond Ward posted about law schools that use aspiring young legal scholars to teach legal writing. I posted the following comment.

Yes, a few law schools still do this. It is not so much an initiation for the fellows to pass through. It's more like this:

Gosh, here we have aspiring young legal scholars. It sure would be great if our law school could help them get started in academia; then we'd be known as a feeder school for young legal scholars. But these folks are young and inexperienced. What can we have them do to justify a salary while their main focus is writing that first article, networking, and defining their scholarly interests? I know. They can teach legal writing!

Of course, these fellows are smart, and most probably could teach legal writing. But there are three main problems:

1. Their hearts aren't in it. It's not what they want to do, ultimately.
2. Their focus, naturally, is on their own (scholarly) writing, not on teaching legal writing.
3. They turn over every year or two.

I once applied for a job as director of legal writing, and in one interview a professor told me he wanted to start a fellows program like the one described here. He asked me what I thought. I swallowed hard and said "It's a good way to develop young scholars, but it's not a good way to teach legal writing."

For an insider's view of exactly what the post and my comment are talking about, read this article:

Ilhyung Lee, The Rookie Season, 39 Santa Clara L. Rev. 473 (1999).

My abstract of the article:

Story of a job as a legal-writing instructor for one year. This author had practiced law and was trying to enter legal academia. The job was in a "fellows" program, and the author did get a faculty appointment at another school after one year. As a fellow, the author had 75 students. Particular points: overwhelmed by the work load, especially critiquing papers; a bit surprised at the disdain for the subject of legal writing. Upon getting a doctrinal job, was told "welcome to the academy." But remembers thinking, "I thought I was in the academy already." No. It was only legal writing.

Citation percolation

The citation discussion has percolated nicely, with lots of good comments. Before I chime in with my take, I'd like to ask a question:

In judicial opinions, the citation form is almost always wrong. Why?

Because judges often have their own idiosyncratic preferences that do not match the current Bluebook?

Because judges and their clerks are only human and are no better than the practicing bar at citation form?

Because the publishers of judicial opinions alter the form before we see it?

Why? Send your answers to me or post a comment.

Role of citations in legal writing--responses

The student essay about citations and their importance or lack of importance prompted three thoughtful responses:

Commenter #1:
This is a great essay and it perfectly illustrates what you've called the "tyranny of the inconsequential." But looking at the other side of the issue, though, the lesson here is that legal employers have high standards for substance and form. Hey, maybe that's why the top firms are willing to pay over $160,000/year to first-year associates! The citation-fixated associate in the story may have needed perfect citations because judges and clerks make a big deal out of it, and he was going to cut and paste the citations from the memo into a brief or other court document. So long as judges and other important legal audiences put a high premium on citation form, I don't think legal employers are so unreasonable to expect proper citations.

Commenter #2:
I've been writing briefs, trial court and appellate, since 1977. I started very early in my career not worrying about citation style. In my mind, the purpose of a brief or a memo is to communicate and persuade. If the writing accomplishes that function, then it has done its job.

The "elephant in the room" question is whether "bad" (really just non-standard) citation format distracts from the communication/persuasion function. I suppose that it could get so bad that it becomes a distraction and must be dealt with. However, short of that, I've never seen it as a problem. In 30 years of writing briefs and doing oral arguments, I have never had a judge, trial or appellate, say one word about citation format. This is a business of ideas. Communicate those, and you've got it made in the shade.

Commenter #3:
For what it's worth, I think the essay would have been more valuable if the student realized that legal writing is about both form and substance--that's why old briefs and motions contained the heading "Arguments and Authorities." If your substance cannot be independently verified through the citations, it's not worth much. This is especially so when you are arguing a tough position for a tough client. As a law clerk, I read the cases cited by each side in evaluating the merits of their arguments. And I especially scrutinized the arguments made in a sloppy brief with sloppy citations.

What's interesting here is that neither associate grasped the duality of legal writing. I wonder what practice fields they were in and if that made a difference.

Guest blogger--Cheryl Stephens

Cheryl Stephens, of Building Rapport, the plain language blog, is a leader in the field of plain language communication, and provides training and workshops to clients all over North America. She is making a guest appearance today promoting her new book, Plain Language Legal Writing.
__________

Wayne, a few days ago you wrote about being a professional writer. I'd suggest you are not just a professional writer, but a writing expert. Same for the others who write and blog about legal writing.

I want to make that point because I believe every lawyer should see himself or herself as a professional writer and problem solver.

I am sure that your students do not see themselves as preparing for careers as professional writers -- but they are. Lawyers in practice areas that are heavily paper-based are writing (or signing off on) more pages in a day that a novelist hones in a week.

The Legal Writing Prof Blog reported on a presentation to the Legal Writing Institute about the skills training gap between law school education and real-world practice needs.

One presenter, Mr. Mike Cavanaugh, despaired of new associates who lack competent writing skills and those who also lack in basic English skills. Another, Professor Kathleen Dillon Narko, spoke of meeting the needs of the client receiving the memo or client letter. Ms. Kris Butler spoke about clients' expectations of lawyers: to get to the conclusion right away, and to edit a document for conciseness.

Young lawyers ought to think about the physical product they deliver to clients -- the letters and other paperwork. This stuff is kept, circulated, and even shown to other lawyers who form their opinions on the quality of it.

Recognizing themselves as professionals, writers, and "published" authors of legal paperwork, young lawyers and law students might take their writing skills a little more seriously.

Then, they will see that plain language sets a standard for their writing. We ask that they use good grammar, standard English, no jargon, and well-formed sentences expressing well-formed thoughts.

The best legal-writing sources--a series #3

Your indoctrination into the movement for plain legal writing could begin here:

Lifting the Fog of Legalese: Essays on Plain Language by Joseph Kimble

Professor Kimble is the foremost expert on plain legal writing in the United States, and this book collects his best writing. All of us would do well to follow his advice and mimic his clear, direct, and readable writing style.

Student essay--role of citations in legal writing

“I don't even know where my Bluebook is,” the young associate told me as she looked over the sea of red ink on the motion she had asked me to “proofread.” “Really?” I asked, quite perplexed as I tried to cover up my carefully tabbed and slightly tattered Bluebook. I thought legal writing was all about the citations.

I had always considered myself a good writer, even a great writer at times. So when it came to legal writing, I focused almost completely on having correct citations after each and every sentence. I was already a good writer--all I needed to make it good legal writing was citations, right? Apparently I was wrong.

The next day the young associate called me into her office to go over a memo I had drafted a few days earlier (before I realized she didn't care about citations). When we sat down to discuss it, she actually had concerns about my legal analysis. This had never happened to me before--not in my legal-research-and-writing class, not in my brief-writing class, not when I was working on my student note. My analysis was always sufficient--it was those pesky citations (or lack thereof) that got all of the comments. Evidently “sufficient” analysis was not good enough anymore. The young associate was able to look past the citation game I had been playing and actually read the words I put down on the paper.

This realization lifted quite a burden, permitting me to focus on analysis and clear writing rather than on the tedious work of citation checking. The results were amazing! The next memo I turned in to the young associate had flawless legal analysis. It had citations where necessary for my analysis, but I didn't waste time checking every abbreviation or en-dash. She was impressed, quickly passing on the results of my research to a partner working on the same issue. Forgetting citation form was the best thing that had ever happened to my legal writing.

About a week later, I turned in a short memo to another associate. This time, I did not waste any time checking my citations. When I went to the associate's office to go over his comments, I was surprised to see a sea of red on my memo. It was clear that he was not impressed with my new and improved focus on legal analysis or my careful synthesis of the relevant case law. He did not have any substantive changes or comments about my analysis or legal conclusion. However, he had gone through, Bluebook close at hand, and checked every single citation in the entire memo, carefully marking it up as if he were a law review editor. After going through and explaining every single place where I had failed to use small caps or had an incorrect abbreviation, he gave me an “important” piece of advice. “Legal writing is all about citations.”

All comments will be moderated

As some of you are realizing, I have changed the settings for this blog so that all comments must be moderated before they can be posted. I had to do this because of the high volume of "comment spam" I was getting. This site is hosted on a university server, and the computer people insisted that I find a way to cut down the spam.

I will moderate your comments, of course, but feel free to email me here:

wayne@legalwriting.net

Underlining: a postscript

A reader adds:

One thing to consider (and I find this reason compelling) is that a lot of text is being published on the Internet. Underlining text on Web pages is always a no-no since underlining signifies a hyperlink. When documents are published on the Internet (which they almost always are these days), existing underlined words will only cause confusion since they are not hyperlinks.

A good point.

In favor of the serial comma

I favor using a full complement of serial commas:

The flag is red, white, and blue.

I put a comma before the conjunction in a series of three or more items. I haven't found any legal-writing source that says you can omit that comma. And I haven't yet been persuaded that including that comma ever causes a problem, though some have tried to persuade me.

Here's an example in which omitting it causes a miscue:

For property owners to be liable, they must know of a danger, the danger must not be apparent to the public and the owner must chose not to warn others of the danger.

Did you catch the miscue?

In defense of underlining

A reader writes:

Regarding the emphasis of words as a matter of document design, what’s so bad about underlining? Surely the fact that underlining happened to be possible with a typewriter does not by itself warrant exile to realm of “witnesseth” and all caps. In my experience, underlining stands out more than boldface and far more than italicizing--especially when we’re talking about shorter phrases (I don’t think I’d use it for an entire section). Perhaps I am unique or in the minority on this. Any thoughts on this weighty issue?

Yes.

First, that it was available on a typewriter is not the problem. The problem is that it was used on a typewriter to simulate italics, which is what professional printers used. It was a second-best make-do.

Second, it does add clutter to the text--another element for the eye to deal with--and it partly obscures any descending letter, like this: g, j, p, q, y.

Still, the reader has a point: it isn't so bad, and there are far worse writing faults.