Thursday, March 31, 2005

"s" apostrophe

I listened to 21 student oral arguments in the last three days, and heard only two uses of "blatant." Still, I'm a bit tired.

Is this correct apostrophe use?

The Boston Red Sox' manager (from the Austin American-Statesman)

I think not, just as I think these are wrong:

Wayne Schiess' book
The Schiess' house
The class' grades

I would prefer--

Wayne Schiess's book
The Schiesses' house
The class's grades (one class)
The classes' grades (multiple classes)
The Boston Red Sox's Manager

Has the rule changed, or is it just widespread incorrect practice?

Tuesday, March 29, 2005

The word "blatant"

Is "blatant" ever effective in legal writing?

Especially in persuasive writing, I'm starting to put it in the same category as "clearly" and "obviously." It does not persuade. It only draws attention to itself as an effort to sound persuasive. Anytime a word draws attention to itself, it's not good. And the attention it draws is therefore usually negative attention. I won't use it in my writing.

I'm sensitive to it right now as I read student briefs, some of which contain the word "blatant" or "blatantly." I must say, though, that I'm not seeing as much of it as I once did. I guess my preaching in class about the adverse effects of hyperbole and exaggeration are getting through a little.

What do you think of "blatant"?

Monday, March 28, 2005

Legal journal: Clarity

One reader (I have at least two) pointed out another place to find articles on legal writing: Clarity, the journal of the international movement to simplify legal language. Its website is here:

I read this journal regularly.

If you read Clarity, you'll be seeing the cutting edge of plain legal language. Every issue is full of stories and examples of people working to convert legal documents into plain legal English. No aspect of legal drafting is too inconsequential; Clarity authors tackle them all. For example, the latest issue (November 2004) contained pieces on these subjects:

1. The use of initial capital letters for defined terms in a legal document. The author's position is that we should stop doing it, especially in public documents. Richard Castle, Definitions and Capitals: Where are We? 52 Clarity 31 (Nov. 2004).

2. The use of numerals instead of text for numbers in all contexts--two articles (or should that be 2 articles?). One article was criticizing an earlier article that had advocated legal drafters' using numerals in all contexts. Richard Lauchman, 0 Ate 2 of Jill'r Pairs, 52 Clarity 34 (Nov. 2004). The other article was a response, Robert Eagleson, The Doleful Grip of Convention, 52 Clarity 37 (Nov. 2004), from the author of the first article. Robert Eagleson, Numbers: Figures or Words: A Convention Under the Spotlight, 50 Clarity 32 (Nov. 2003).

Clarity is a wonderful resource for ideas that are pushing the boundaries of what counts as legal drafting.

Saturday, March 26, 2005

Scribes to use ALWD

The Scribes Journal of Legal Writing will be switching to the ALWD Citation Manual for its citation form. I'm happy about it because I'm an associate editor for the Journal. In terms of citation work, this will not really make my job that much easier. In fact, what it really means is only three things:

(1) no more small caps,
(2) more abbreviations, and
(3) same citation form for magazines and scholarly periodicals.

But because the ALWD Manual is so much easier for the novice to use, and because it is so much easier to teach from, I applaud anything that favors it. I concede that for scholarly legal writing, the Bluebook is not a real problem to use, but for teaching students, it's terrible.

Not familiar with the Journal? If you are interested in legal writing, you can pick up any of the 9 volumes and find fascinating reading. Visit the organization's website.

I consider the Journal the premier scholarly journal on legal writing, although there are only three others:

(1) The Journal of the Association of Legal Writing Directors
(2) Legal Writing: The Journal of the Legal Writing Institute
(3) Perspectives: Teaching Legal Research and Writing

Am I missing any?

Friday, March 25, 2005

WS Fan Club

Of the 21 briefs due yesterday for my Brief Writing class, 19 were in on time, 1 was late, and 1 has an extension. Now I must read and rank them.

Yesterday was the last day of class for my other class, the first-year Legal Research and Legal Writing course. Twenty of my 105 students have formed the Wayne Schiess Fan Club, and they wore T-shirts with that phrase on the chest. On the back, they quoted me saying "I, on occasion, foster a following." It was only a little embarrassing; mostly I took it as a compliment. Later they presented me with the same T-shirt.

We'll see how happy they are about me when I hand out the research memo assignment Monday.

Thursday, March 24, 2005

Briefs due today

A reader pointed out that newspaperman Bill Walsh acknowledged the need for the full set of serial commas--at least sometimes--in his book, Lapsing Into a Comma, at page 81. For a journalist to acknowledge this is getting somewhere.

Lapsing Into a Comma is a good book, entertaining. Do any readers recommend Walsh's second book, The Elephants of Style? I haven't read it.

My students have an appellate brief due today. I'm getting all sorts of last-minute questions about format, citation, and the word limits. But I must say I feel lucky. The students I work with here at Texas are of high caliber. They generally write well. They're generally responsible. They make my job a pleasant one.

But I will not enjoy applying the law school's rigid grade curve to these 20 briefs. No matter how good the briefs are, I must give some students low grades: they are, after all, competing against each other, and the competition is tough.

Wednesday, March 23, 2005

Serial commas

More sports-commentator-isms:

"He can really elevate [jump]."
"They've got a fast-break situation [a fast break]."
"He just can't get untracked [on track]."

Anyway . . .

Do any lawyers reading this dislike using a full complement of serial commas? For example--

1. The court heard arguments, evidence, and objections.
2. The court heard arguments, evidence and objections.

If you prefer number 2, can you explain why?

Journalists prefer number 2. Can anyone tell me why that is?

I just looked it up in 5 legal style books, and all 5 recommend a full set of serial commas--that is, a comma before the "and" or "or" in a series.

Tuesday, March 22, 2005

Errors by sports commentators

Garner's Modern American Usage is not as hard on "individual" as I was yesterday. But as a universal substitute for "person," we are in agreement that "individual" is not strong. GMAU at 447.

If you were watching the men's NCAA basketball tournament and saw Bucknell defeat Kansas, perhaps you noticed that the color commentator kept referring to Bucknell as the by-sawn. The word is Bison, pronounced by-sn. (Imagine there's a little schwa--upside-down "e"--between the "s" and "n"). It is NOT by-sawn. I laughed out loud it was so funny.

I believe you will hear more English-usage errors and word gaffes in sports commentating than anywhere else. First, they have to talk a lot. Second it's all extemporaneous. Third, some of them are just not that smart.

Care to share an example? Here's one:

"There's a three-second differential between the game clock and the shot clock." How about just a "difference"?

Monday, March 21, 2005

The word "individual"

Is "individual" a synonym for "person"? I've encountered this usage a lot lately, and it strikes me as "business talk" or "corporatese."

"If this individual is here, please raise your hand."

"I want to speak to every individual on this list."

I dislike this usage. It's pretentious and ignorant at the same time. The writer or speaker is simply trying to find a fancy word for "person," right? I always thought "individual" was an adjective--rarely used as a noun:

"We were served individual meals."

"Courts do not directly make public policy; they decide individual cases."

I am away from my usage dictionaries and writing guides, but I'm sure that the use of the word "individual" in place of "person" is not preferred.

A quick Web search turned up this quotation from H.W. Fowler's The King's English in 1908:

"An individual is not simply a person; it is a single, separate, or private person, a person as opposed to a combination of persons . . ."

Stop using "individual" to mean "person," okay?

Wednesday, March 16, 2005

Article on Texas style manual

I just finished this article: James Lindgren, Fear of Writing, 78 Cal. L. Rev. 1677 (1990). It is a harsh critique of the Texas Law Review Manual on Style, 6th edition. The same issue of the California Law Review has a response from the Texas Law Review and a follow-up by Lindgren.

If you are a legal writing person, like me, you'll probably enjoy it. Where else can you see a scholarly debate over the word "where"? And if you take a dim view of student-run law reviews, as I do, you'll enjoy it all the more because the law review students get the worst of it. (Disclosure: In law school, I wasn't on law review.)

But I'm particularly interested in it because I am currently acting as the faculty adviser to three students who are revising the 10th edition of what is now called the Texas Law Review Manual on Usage and Style (the "MOUS"). These are three very bright students, two of whom are former students of mine, and I think they are doing a superb job. I think Professor Lindgren would not object to the 10th MOUS.

But another theme in his piece was the rigidity with which student editors applied the manual. On that point, no matter the changes to the MOUS, I do think all law review editors ought to be more open to legitimate English prose style and not blindly or rigidly apply the MOUS.

Monday, March 14, 2005

Book: Word Myths

I am reading, and am surprisingly entertained by, the book Word Myths: Debunking Linguistic Urban Legends by David Wilton. I am generally interested in words, though I doubted I would enjoy a whole book about them. I tend to read books about writing. But I also enjoy books about urban legends, and have read several. (Check out anything by Jan Harold Brunvand.) I have also read several books that debunk things, like paranormal claims. (Check out anything by James Randi).

So when you combine words, urban legends, and debunking . . . well, I'm there.

For example, the word OK did not come from a misspelling of "all correct" as "oll korrect" (and hence OK) by president Andrew Jackson, or from "Old Kinderhook," a nickname for president Martin Van Buren. Both those theories contain some truth, though. It originated as an abbreviation of "oll korrect" as a joke in the Boston Morning Post newspaper in 1839 and caught on in the 1840 presidential election in which Van Buren ran.

Friday, March 11, 2005


Is it okay to eliminate phrases like WHEREFORE PREMISES CONSIDERED and other such verbiage from the prayer in a complaint? And what is the proper substitute?

Yes, it is okay to eliminate these words. In fact, I highly recommend it.

First, let's be clear that there is no need to put the phrase in ALL-CAPS. Legal-writing experts agree that the use of ALL-CAPS hampers readability. Bryan A. Garner, A Dictionary of Modern Legal Usage 130 (2d ed., Oxford U. Press 1995); Irwin Alterman, Plain and Accurate Style in Court Papers 17-18 (ALI-ABA 1987).

Second, the phrase is not necessary. Alterman, Plain and Accurate Style in Court Papers at 56. It's just archaic baggage. And its use in the phrase you've asked about is inarticulate: "one who writes 'wherefore premises considered' in the prayer of a court paper would be hard pressed to say what the premises are, other than everything that has gone before." Garner, A Dictionary of Modern Legal Usage at 685.

Third, there are simple substitutes. Alterman suggests "Plaintiff requests the court . . ." Alterman, Plain and Accurate Style in Court Papers at 55. "The plaintiff asks . . ." may work as well. Some omit the phrase and use a heading like "Prayer" without any further lead-in.

Thursday, March 10, 2005

Garner on legal lexicography

I attended a lecture last night by Bryan Garner. He's a leading teacher and scholar on legal writing, legal usage, and English usage, and he is also the editor in chief for Black's Law Dictionary. Last night he discussed the 8th edition of Black's and shared his thoughts on dictionary-making.

I concluded that I do not want to make dictionaries. It seems to be exhausting work.

Yet it is a fascinating enterprise. He talked about how to decide what words belong in a legal dictionary--no easy task. He talked about where he gets examples and definitions for words: he rarely uses judicial opinions and relies on a broad range of legal texts. And he revealed that Black's is perhaps the most widely cited legal source today; appellate courts in the United States cited it nearly 2500 times last year.

He later asked if the law school was going to put me on the tenure track. I laughed.

Wednesday, March 09, 2005

Undergrad writing vs. legal writing

In the Winter 2005 issue of Perspectives, Professor Anne Enquist writes about undergraduate writing and legal writing. Anne Enquist, Talking to Students about the Differences Between Undergraduate Writing and Legal Writing, 13 Perspectives: Teaching Legal Research and Writing 104 (2005).

It's the best summary on the subject I've ever seen. I'm going to require all my first-year students to read it.

She points out that in undergraduate writing you are often rewarded for creativity, self expression, and length. But in legal writing you are rewarded for clarity, directness, and brevity. And her insights on the audiences are excellent. In undergraduate writing, she says, "[t]he writer is usually the novice in the subject matter, and the reader is the expert." But in legal writing, "[t]he writer is the expert writing for a less informed reader." Id.

The urge among my students to show that they know more than others is, I think, a direct result of undergraduate writing. On a typical legal writing assignment, all the students will find and use the same sources. Their grades will depend not on how many sources they find or on how clever their legal theories are; their grades will depend on how well they write about the authorities they--and everyone else--will find.

Tuesday, March 08, 2005

Tenure for Memphis's Romantz

The listserv for the Legal Writing Institute carried posts today about the granting of tenure to Professor David Romantz of the University of Memphis Cecil C. Humphreys School of Law. He is a legal writing professor.

Congratulations to David.

He wrote a very good article a couple of years ago that I recommend to anyone in this field (teaching legal writing): David S. Romantz, The Truth about Cats and Dogs: Legal Writing Courses and the Law School Curriculum, 52 U. Kan. L. Rev. 105 (2003).

In his article, he makes this excellent point:

"[L]egal writing courses teach key practical skills, together with analytical skills, that add both relevance and breadth to the law curriculum. As such, legal writing courses ought to enjoy the same significance, curricular importance, and institutional support as their doctrinal counterparts." Id. at 146.

Monday, March 07, 2005

Persuading in close cases

Say you're writing a persuasive document, such as a motion or brief. Suppose you think one of the legal issues is a close call: objectively speaking, it could go either way. What's the best approach to take? In other words, which is more persuasive?

Approach 1: Downplay the adverse authorities (without ignoring them), emphasize the authorities that support you--even if they do so indirectly or weakly, and phrase your argument in the most favorable terms you can. (You're not fudging on the law or the facts, and you're not using hyperbole or exaggeration.)

Approach 2: Concede that it's a close call and that the authorities don't support a clear outcome in your favor. Show how the authorities can be construed to support the result you seek.

Let me be clear: this is not a question merely of tone. I advocate a balanced, "neutral sounding" tone no matter the approach. I just want to know what lawyers and judges find persuasive: a forceful argument that says "I'm right and here's why," or a more balanced presentation that says "it's a hard case and here's a reason to go my way."

This question came up in my class today, with students on both sides. Click on "Send me a comment" and give your view.

Friday, March 04, 2005

New weblog on legal writing

I've turned my website in to a weblog. I hope to post here regularly on subjects related to writing and legal writing.