Wednesday, June 29, 2005


On hiatus until July 8.

Brutal rewriting

Thorstein Veblen & Keynes LLP makes this site available as a service to clients and friends. It is not intended to be a solicitation or to render legal advice. Some pages provide links to other information resources on the Internet. These sites are not endorsed or supported by Thorstein Veblen, and the firm does not vouch for the accuracy of the information provided therein. The State Bar Rules require that a single attorney accept responsibility for this site. Thorstein Veblen designates John Maynard, General Counsel.

Flesch readability score = 45 (fairly difficult); grade level = 10

This one is better than most. But it's so stodgy.

Try this
We at Thorstein Veblen & Keynes LLP run this site as a service to clients and friends. We do not use this site to seek clients or to give legal advice. Some pages on our site have links to other sites. But we don't recommend or support those sites, and we can't guarantee the information on those sites. State Bar rules require us to name a single lawyer who is responsible for this site; that is John Maynard, our General Counsel.

Flesch readability score = 78 (very easy); grade level = 6

I'm brutal, aren't I?

Tuesday, June 28, 2005

Another law firm example

The materials contained on this website are provided for general information purposes only and do not constitute the legal or other professional advice of Schiess & Associates LLP and affiliates (Schiess & Associates). Neither Schiess & Associates nor any other Schiess & Associates entity accepts any responsibility for any loss which may arise from reliance on information contained on this site.

I'm sorry, but this is not good writing. Passive voice, nominalizations, unnecessary defining, a "which" error.

Schiess & Associates runs this website. We give only general information, and nothing on the website is legal or professional advice. We and our affiliates are not responsible for any loss you sustain from relying on this website.

Monday, June 27, 2005

Simplifying legal language--an example

Here is the original:

The materials on this Web site are made available by Law Firm for informational purposes only and are not legal advice. The transmission and receipt of information contained on the Web site do not form or constitute an attorney-client relationship. Persons receiving the information on this Web site should not act upon the information without seeking professional legal counsel.

Flesch readability score = 29 (difficult); grade level = 12.

I've seen a lot worse. But try this:

Law Firm runs this Web site for information only. What you read here is not legal advice. You cannot form an attorney-client relationship with us by visiting this Web site or by reading the information here. Don't act on what you read here without talking to a lawyer.

Flesch readability score = 64 (easy); grade level = 7.

Thursday, June 23, 2005

No one promoted the Bluebook

One more comment on Eric Shimamoto's piece criticizing the ALWD Manual.

Yesterday I mentioned that the Bluebook had a monopoly on legal citation for many, many years. In that context, Shimamoto's comments about marketing the ALWD Manual are funny:
    The ALWD Manual is published and marketed by Aspen Law & Business, a division of Aspen Publishing, Inc. The publisher will be at the 2005 meeting of the National Conference of Law Reviews, hawking the book to law review editors from across the country. Historically, The Bluebook has had no one to do this.
Eric Shimamoto, Student Author, Comment: To Take Arms Against A See Of Trouble: Legal Citation and The Reassertion Of Hierarchy, 73 UMKC L. Rev. 443, 459 (2004).

Of course no one was hawking the Bluebook to law reviews. It was the only citation manual.

ALWD Manual is about hierarchy?

Why did the Association of Legal Writing Directors create the ALWD Citation Manual to compete with the Bluebook? I thought I knew, but I just read a competing viewpoint.

In a symposium issue of the University of Missouri at Kansas City Law Review, a student wrote a pointed critique of the ALWD Manual, in particular the reason it was created. I could paraphrase his point, but he makes it clearly, so I'll quote him. For context, remember that the ALWD Manual is created by legal-writing professors and that the Bluebook is created by law-review students at Columbia, Harvard, Penn, and Yale:
    This Comment argues that the attempt by legal writing professors to wrest control of legal citation from law students is a blatant expression of the most obvious form of hierarchical control in legal education. It asks whether the dissemination of competing citation systems is the best way to address the dispute at hand, or whether the publication of the ALWD Manual simply represents an attempt by one group, situated toward the bottom of the law school teaching hierarchy (legal research and writing faculty) to exert what power the hierarchy gives them over one of the few groups situated below themselves (students).
Eric Shimamoto, Student Author, Comment: To Take Arms Against A See Of Trouble: Legal Citation And The Reassertion Of Hierarchy, 73 UMKC L. Rev. 443, 444 (2004).

This view of the situation is spin. Shimamoto has spun the situation to match his viewpoint. I disagree with his spin, and I can think of three other valid ways the ALWD Manual could be spun.
  1. The three law professors who were most visible in creating the ALWD Manual were Jan Levine of Temple, Richard Neumann of Hofstra, and Darby Dickerson of Stetson. All three are named in Shimamoto's piece. So one way to spin the ALWD Manual would be as less-powerful law schools fighting against the more powerful law schools whose students publish the Bluebook--Columbia, Harvard, Penn, and Yale. Talk about your "blatant expression of the most obvious form of hierarchical control in legal education," as Shimamoto put it. Well maybe the less-powerful schools were tired of having the big shots control legal citation.

  2. The Bluebook was the only source for legal citation for many, many years. It had a monopoly on legal citation--there is no other way to describe it. One way to spin the ALWD Manual would be as an effort to introduce competition into a monopolized market. (And I think it worked because the Bluebook has changed and improved in response.)

  3. Many consider the Bluebook to be poorly written and poorly designed, besides being a terrible teaching tool. One way to spin the ALWD Manual would be as an effort to create a better product that is more useful to the people who have to use it and teach from it.
Of the four possible spins, I find Shimamoto's the least persuasive.

Wednesday, June 22, 2005

Plainer jury instructions

I've been hired as the plain-language drafter for the Texas Pattern Jury Charges Plain Language Task Force. I am starting by revising the admonitory instructions. It's interesting.

I am using a more conversational tone, adding previews and lead-ins, simplifying the language, and re-ordering for logic and flow.

But I'm dreading the job of working on the negligence charges. Doctrinal faculty here at Texas are telling me about all sorts of substantive problems in the charges for negligence and other torts.

I can't do much about that. If we're going to make significant substantive changes to the charges, we'll need substantive experts--lots of them--because the charges cover every legal issue that arises in lawsuits.

For now, all I'm doing is revising the existing charges into plain English--to the extent I can.

Wish me luck.

Monday, June 20, 2005

Bringing back some classic legalese

Two little legal words are falling out of favor, and I’d like to do something about it. No, the words are not chad and tax. The two little legal words I am referring to are said and same, and they’re getting a bad rap.

We lawyers used to sprinkle these words into our letters, briefs, and agreements to give them that distinctive legal flavor, that unmistakable, musty odor that said, “A lawyer wrote this.” Or, in the more appropriately formal, and passive, construction:
  • The document was drafted by a lawyer. Said document is therefore the work product of such lawyer and can be withheld by same.

Unfortunately, most of us don’t write like that anymore. What a shame.

If more of us would take up the quill and apply ourselves diligently to the task, we might see a revival of Elizabethan usage. Indeed, we could see a return to the day when anyone could simply glance at a piece of writing and know that a lawyer had a hand in its preparation.

“Sure,” you’re saying, “I use said and same; I use them all the time.” I’m grateful. I thank you, as do young Legalese Revivalists everywhere. But let’s be clear: Are you using same as a pronoun and said as a demonstrative pronoun? Anyone can use said and same in their current senses, like this:
  • At trial, the witness did not say the same thing that he said in his deposition.
That’s easy. You don’t even have to be a lawyer to write that. What I’m talking about is the more sophisticated and lawyerly use of said and same, like this:
  • At said trial, said witness did not testify to the said identical said thing that he recounted in said deposition. Said testimony differed from same.
Now that’s the kind of usage I’m looking for. Maximize the legalese. Make it dense. Pack in so many uses of said and same that no one can doubt that you are well versed in law.

My effort to revive said and same has three phases.

Phase one: Silence the critics
A growing number of so called “writing experts” are trampling on said and same. These naysayers toss out words like “modern” and “contemporary,” and they get awfully pushy about using today’s English. Here’s a sampling of their comments:
  • Said should be rigorously eschewed . . .” (Garner)
  • [s]aid is . . . . useless.” (Wydick)
  • Same . . . is avoided by all who have any skill in writing . . .” (Fowler)
I respond that there will always be a place for the classics, for tradition, and for obfuscation. These words, said and same, link us to the past, to the grand traditions of the common law, to livery of seisin, to trial at nisi prius, and to dower and curtesy (I think).

So as part of phase one, I urge you to turn a blind eye and a deaf ear to the plain-English extremists who are pushing you into 2002. Stay rooted in the grand traditions of English in 1952. Or 1852, if you prefer.

Phase two: Bring in the next of kin
Once we have gotten said and same back into current usage, we can build on that success by introducing a new use for same and by bringing back one of said’s relatives. In the next model text, we can see that same is moving from direct object to subject—a more prominent and appropriate place for this venerated word. We have also introduced aforesaid, said’s neglected older sibling.
  • At the aforesaid trial, the aforesaid witness had not testified to the aforesaid identical aforesaid thing that the aforesaid witness recounted in the aforesaid deposition. Same differed from the aforesaid same.
And once we bring back aforesaid, we can take the big step to the grand-daddy of classic legalese, aforementioned.

Ultimately, I’m thinking even beyond these two words. I’d like to see other arcane and little-used words make a come back, so we can once again freely use witnesseth, instanter, and herebywithin without getting strange looks. And if we stay the course, we might even see the day when vel non is used again, or even simpliciter, though it’s probably just wishful thinking.

Phase three: Expand to speech
Once you’ve welcomed said, same, aforesaid, and aforementioned back into your written work, it will be a small step to include them in conversation. Of course, at first, you’ll have to restrict yourself to using them in court:

Judge: Counselor, please rephrase the question.

You: I acknowledge that the aforementioned question was poorly worded, your honor, and I will rephrase same as per your order.

But soon you’ll be using them at the office:

Boss: Have you finished that memo on toxic mold? I need it before my depositions tomorrow.

You: Said memo is nearly completed, and I’ll have same on your desk within the hour, although the aforementioned depositions are not actually scheduled until next week. I just noted same on my calendar.

Eventually, you’ll probably be able to work them in almost anywhere:

Spouse: Honey, would you care for more salad?

You: The aforementioned salad was delicious, and I would, indeed, enjoy more of same.

That may seem like an unreachable goal right now, but hang in there. Stick with it. Said and same are back, and they’re back to stay.

Thursday, June 16, 2005

Unnecessary fancy writing

I overheard this conversation:

"Given the popularity of this event, might we provide for enhanced capacity?"

"I don't know about that, but we do need you to set up more chairs."

Why do we talk this way? And why do we write this way?

Original: "In reviewing potential infringement of the right to alienate property, the controlling question is whether a contested action amounts to direct and total deprivation of the above protected property interest. A direct and total deprivation of the right to alienate is a decisive step above the simple impingement of said right."

Revised: "To decide if the government has infringed on the right to sell a car, we have to answer this question first: Was the seller denied the right to sell? Or was the right to sell simply limited in some way? Being denied the right to sell is worse than having the right to sell limited in some way."

So show off your big vocabulary in your diary; in public, write so we can understand you quickly and easily.

Tuesday, June 14, 2005

Flesch on vocabulary and plain language

Rudolf Flesch (my hero) quoted a popular magazine on the topic of vocabulary building and then added his comments:
    '[E]ach new word you learn will increase your mental power. There may be other ways to success, but vocabulary building is the easiest and the quickest one.' Unfortunately, this just isn't so, and the cash value of words like minions and panegyric is practically zero.
Flesch continued:
    Language is not as simple as all that and we understand words not by way of 'vocabulary building' but by way of their contexts. If this were not so, simple writing--or any writing, for that matter--would be very easy: you cut out the big words, and there you are.
Rudolf Flesch, The Art of Plain Talk 205 (Collier 1951).

But writing, and writing in plain language, is not that easy. Plain language is about a lot more than words--even if we don't all know it yet:
    [One] thing to say about plain language is that it has a problem. It has a bad name among some lawyers. This is usually because they don't understand enough about it to judge it properly.
    . . .
    Plain language drafting is more than just a matter of using simple words. Less than half this book is devoted to words. The rest looks at writing for your audience, choosing the appropriate tone, planning, structure, design and layout, readability, devices to help your reader find things, testing, and some "philosophical" matters.
Michèle M. Asprey, Plain Language for Lawyers 11, 197 (2d ed., Federation Press 1996).

Monday, June 13, 2005

Comments on plain language

Much legal writing is produced with only lawyers or the courts in mind. One result is that the parties to the document become almost irrelevant, ignored as outsiders or tourists.

It is consistent with plain language principles to argue that legal language which is unintelligible to its readers may be a species of fraud. Some poorly written legal documents are evasive or clandestine or purposely garbled. The bulk of poor legal writing, however, is merely inept, hackneyed, and poorly organized.

Christine Mowat, A Plain Language Handbook for Legal Writers 14, 28 (Carswell 1998).

Thursday, June 09, 2005

Avoid unnecessary Latin

I have a bias against Latin in legal writing. I think Latin makes legal writing sound more complicated than it is, and it excludes nonlawyers. To me, it serves only to brand writing as legal and writers as lawyers. Those aren’t goals I support. So I generally condemn Latin.

But not everyone agrees with me.

In fact, several of the Latinisms on my hit list below appeared in a 1997 article called Latin in Legal Writing, by Peter R. Macleod. Macleod’s student note surveyed the use of ten Latin phrases--and none is a term of art--from the written opinions of three courts: the United States Supreme Court, the California Supreme Court, and the Massachusetts Supreme Judicial Court. He found that over the previous ten years, these nonessential Latin terms did not fade away; they either held steady or actually gained in use in judicial opinions.*

I find that odd, and I wonder why it should be so. Do judges feel that using Latin enhances their sense of belonging to a learned profession? Perhaps. But one thing is clear, their use of Latin does not enhance the clarity of their written opinions. My position is this: if there is an everyday English equivalent, even if it is longer, use it instead of Latin

So here’s my list, with comments.

ab initio
“From the beginning.” That’s a better phrase, so use it.

a fortiori
“Even more so.” Use that English phrase or revise around the Latin.

“For the sake of argument; for arguments’ sake.” These English phrases are longer, but better.

de minimis
“Minimal; insignificant.” Both are better than the Latin phrase.

inter alia
“Among others; and others.” Pompous twaddle. I’ve never used it. Ever.

sua sponte
“On its own; on its own motion.” The English is longer but better.

sub judice
“Before the court; under consideration here.” This phrase is even worse than “instant case” because it’s not only fancy, it’s Latin. Try “this case,” “our case,” or restate the proper name: “the Peterson case.”

vel non
“Or not.” Use the English.

*Peter R. Macleod, student author, Latin in Legal Writing: An Inquiry Into the Use of Latin in the Modern Legal World, 39 B.C. L. Rev. 235, 236, 239 (1997).

Monday, June 06, 2005

Eats, Shoots & Leaves

Have you read the popular book Eats, Shoots & Leaves by Lynne Truss? The subtitle is The Zero Tolerance Approach to Punctuation. It's about correct punctuation. Or at least it's supposed to be.

I have read it, and I read it outside my "writing teacher" role; I simply read it to be entertained. And I was. It's funny, clever, and lively.

Then I read a review that pointed out the many punctuation mistakes in the book. So I looked at the book again. The review was right. And I remembered that I had been confused about a few of the punctuation choices in the book. Hmm. A book about correct punctuation that contains a bunch of punctuation mistakes.

Well, judge for yourself. Here are two reviews to read. One is positive:
  • James Speta (law professor a Northwestern Univ. School of Law) wrote a review in 13 Perspectives: Teaching Legal Research and Writing 156 (2005).
And one is not:
  • Bryan A. Garner, Don't Know Much About Punctuation: Notes on a Stickler Wannabe, 83 Tex. L. Rev. 1443 (2005).

Thursday, June 02, 2005

Commas in a series

In legal writing, we use a full set of commas for items or phrases in a series. We do not omit the comma before the conjunction.

"The court hears arguments, pleas, and requests."

Many sources on legal writing say so. In fact, it's difficult to find any source that doesn't say so:
  • "In legal writing, place a comma at the end of each item listed, including the item listed immediately before the and." Mary Barnard Ray & Jill J. Ramsfield, Legal Writing: Getting It Right and Getting It Written 86 (4th ed., West Group 2005).
  • "[I]t is a good idea to put a comma before the last item in a series . . ." Barbara Child, Drafting Legal Documents: Principles and Practices 398 (2d ed., West 1992).
  • "Although the comma before the final and in a series is sometimes described as 'optional,' legal writers should make it a habit to include it . . ." Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer 245 (2d ed., Aspen L. & Bus. 2005).
  • "Some writers treat [the serial comma] as optional . . . but the safer practice is to use it consistently." Bryan A. Garner, The Redbook: A Manual on Legal Style 3-4 (West Group 2002).
  • "Use a comma to mark each separate element in a series; that is, put a comma after each item and before the conjunction." Lynn Bahrych & Marjorie Dick Rombauer, Legal Writing in a Nutshell 129 (3d ed., West 2003).
  • "When a sentence contains a series of three or more items joined with one conjunction, put commas after each item except the last." Richard C. Wydick, Plain English for Lawyers 92 (4th ed., Carolina Academic Press 1998).
  • "Place commas between all items in a series." Terri LeClercq, Expert Legal Writing 152 (U. Tex. Press 1995).
  • "Although informal and journalistic practices permit a writer to omit the comma that precedes the conjunction before the last element in a series, the better practice is to use it[.]" Elizabeth Fajans, Mary R. Falk, & Helene S. Shapo, Writing for Law Practice 156 (Found. Press 2004).
  • "In a series of three or more terms with a single conjunction, use a comma after each term except the last." William Strunk, Jr. & E.B. White, The Elements of Style (4th ed., Allyn & Bacon 2000).