Legal Writing Nerd — Tips for Exceptional Writing Skills

Episode Notes

Transcript

State Bar of Texas Podcast

Legal Writing Nerd — Tips for Exceptional Writing Skills

03/12/2019

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Rocky Dhir: We would like to thank LawPay for their support of this show. LawPay’s online payment solution was developed specifically for lawyers to correctly separate earned and unearned fees so you can accept credit cards in compliance with ABA and IOLTA Guidelines. A proud member benefit of the State Bar of Texas, LawPay is trusted by more than 50,000 lawyers and integrated with more than 30 practice management solutions. Schedule a demo today at lawpay.com/texasdemo.

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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice, with your host Rocky Dhir.

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Rocky Dhir: Hi and welcome to the State Bar of Texas Podcast. So good to have you with us. Let me ask you something. Do you do a lot of writing in your work, legal writing perhaps? Are you pretty good at it? Could you maybe use a few tips?

Well, have I got a great guest for you today, Professor Wayne Schiess, he writes. He writes a lot. I mean a lot. He writes monthly column on legal writing for “Austin Lawyer” magazine. He has written five books, including his latest book called, “Legal Writing Nerd: Be One.” And luckily he is generous with his gifts. You see Wayne teaches legal writing at the University of Texas School of Law.

So, Wayne Schiess, welcome, welcome to the podcast.

Wayne Schiess: Thank you for having me.

Rocky Dhir: So Wayne, great to have you on here. You know, you really are a nerd like a real-life one. I was reading up on your bio, you went from being a bankruptcy lawyer to being a legal writer, so it’s like one kind of nerdship on the LilyPad to another one. What made you go from being a bankruptcy lawyer to a legal writer?

Wayne Schiess: Well, I did enjoy bankruptcy practice, but I wasn’t quite as happy in the practice of law generally as I thought I was going to be. And I actually undertook a series of self-assessment exercises that I found in a book, and through completing those exercises I changed career path.

Rocky Dhir: So, even the transition from bankruptcy to legal writing, that transition itself was nerdy, like I’m seeing this whole nerd theme in your life, Wayne.

Wayne Schiess: Yes, it’s probably true. The exercises were a series of questions that you answer.

Rocky Dhir: Yeah.

Wayne Schiess: So that’s taking a test, right, that’s nerd.

Rocky Dhir: Right, of course.

Wayne Schiess: And I had to write little essays, they would say, think about a moment in your past or an experience where you were, you felt very good, write that down, then you had to share these essays with others to get their feedback on what they taught you should be doing with your life. It was a very nerdy process.

Rocky Dhir: Now, because you have this, this underlying — you have this underlying in you, presumably even back then, did you go back and revise your essays and likely re-read them and proofread them before you share them with others or did you just take them as is and let people read what you had?

Wayne Schiess: It’s funny you asked that, because one of the people that I decided to send my essays to was my mother, and needless to say, my mother was an English teacher.

Rocky Dhir: Oh boy.

Wayne Schiess: So the answer to your question is, yes, particularly when I decided to send them to my mom, I went back through them for revising and editing.

Rocky Dhir: Well, and if was an English teacher than I assume she revised and edited them for you as well.

Wayne Schiess: Yes.

Rocky Dhir: Okay. I am trying to picture the dinner table conversations when you’re with your mother. This may be a whole another podcast, Wayne. We will have to have your mom back and we can have the two of you talk about grammar and diction. I think we’ve — guys, you heard it here first, with Wayne Schiess, we’ve figured this out.

And I am actually starting to think, Wayne, that the story you’re telling, I don’t know if I believe all of it, I think maybe this is not your shtick and maybe it’s like an elaborate cover story, because you are like a secret spy or something, and this is — the CIA just wants to make you sound really nerdy, so nobody suspects you.

Wayne Schiess: Maybe so.

Rocky Dhir: Okay. So he is refusing to answer. I am going to take that as an objection non-responsive. So, let’s get serious for a second because you are touching on something that this topic, legal writing, that some lawyers think they’re really good at it, some lawyers are really good at it, and others of them just don’t enjoy it and don’t really want to improve. Why do you think legal writing is so important to what we do as lawyers?

Wayne Schiess: I often say that lawyers, many law students don’t realize that lawyers are professional writers, and I do think that I wish somebody had made that a little more clear to me, because once I finish law school and landed in a law office, I was doing so much writing and I think every, almost every lawyer realizes that, you are doing so much writing.

Rocky Dhir: Sure.

Wayne Schiess: And because you are doing so much and because you are getting paid for it, I think you are a professional writer.

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There are two other little pieces that I usually throw in. So number one, you are getting paid. Number two —

Rocky Dhir: You are getting paid.

Wayne Schiess: The subject — right, somebody is paying you to write that.

Rocky Dhir: Of course, right.

Wayne Schiess: And number two, it’s usually about something that’s complex and tricky; and number three, there is a lot on the line, it could be mostly money, but if you are writing in a criminal context, liberty and license could be on the line. So for those reasons, I think that’s why it’s so important.

Rocky Dhir: Do you think overtime — you have been teaching legal writing for, I think what is it now, 27-28 years, it’s been a minute, right?

Wayne Schiess: 27 years.

Rocky Dhir: 27 years, well congratulations. So, as you look back and you kind of start from the beginning of your legal writing professorship and you go to today, do you think that we are as a profession putting less emphasis on legal writing in law schools? Do you think the quality of legal writing has kind of stayed the same, has it gone down, has it improved? What’s your kind of professor’s eye view of this?

Wayne Schiess: There is really two questions there. One is, does the way law schools approach legal writing? Has it changed? And the answer to that is a 100% yes, and it’s almost perfectly coincided with my career.

And the second question is, do I think writing is getting better? But — and I can tell you what I think in a minute, but back to the first one, at many American law schools there was no legal writing instruction until the 1970s and 1980s, there literally was no instruction.

Rocky Dhir: Wow, okay.

Wayne Schiess: So you would take contracts but you have never learned how to write a contract, you take Civil Procedure, but never learned how to write a memo or a pleading. That was all supposed to be picked up as an apprentice in the real world.

Rocky Dhir: Through mentorship, I guess, right?

Wayne Schiess: Absolutely. And who knows I would be speculating but moneymaking in commercial law firms started to say, we don’t want to have to mentor these people, teach them how to write before they get here, I don’t know. But, legal writing instruction began and it began primarily with teaching assistants and adjuncts.

And by the time I arrived, that was slowly being transformed into full-time professional instructors, and today, we have a full staff of a very talented full-time legal writing faculty.

So, it really has — the ways law school provide the instruction has changed tremendously in the last 27 years.

Wayne Schiess: But it’s interesting because if you talk to a lot of say, more senior practicing lawyers, they feel like the overall quality of legal writing has gone down, with fresh graduates or even people that have been practicing for a while. Do you share that view or do you think maybe they’re just — their perspective may be a bit tainted?

Wayne Schiess: I tend to, I don’t want to make myself unpopular, but I do tend to be a little skeptical when the older generation tells the younger generation, you can’t do it like we used to do it.

Rocky Dhir: Right.

Wayne Schiess: So, I do have some perspective which is that the caliber of my students’ writing ability has either stayed the same or picked up ever so slightly in 27 years. I am not going to say they are getting so great, but I haven’t seen a decline.

Now, I am fortunate to be at a top law school and I have a very high caliber of student, but —

Rocky Dhir: Sure.

Wayne Schiess: So I sometimes find myself wondering, are we old people feeling obsolete and we therefore need to say, well, the young people these days, they just don’t write well anymore. I don’t know. I will say this, Rocky, I one time got a little stirred up on the topic and I went and did some research on it, and I was able to find quotations from senior lawyers, criticizing the writing of younger lawyers, dating back to 1921.

Rocky Dhir: Oh, that’s interesting.

Wayne Schiess: So it’s a common theme that the younger people coming into practice today don’t write as well as we did when I came into practice, for example. I am a little skeptical of the claim. That does not mean there is not room for improvement of course.

Rocky Dhir: Sure, sure. Well, if there wasn’t then they wouldn’t need legal writing professors, right? So there is —

Wayne Schiess: That’d be out of a job.

Rocky Dhir: Absolutely. There is always room for improvement. So let’s talk for a second, Wayne, about the profession as a whole and you were going to give us your assessment of whether as lawyers, as a legal profession is our writing getting better or staying the same or is it getting worse overtime?

Wayne Schiess: I don’t read as much current writing by lawyers as I do student writing, but I do read some, and my assessment is the same. There has been a push in the United States that we would call the Plain English Movement.

Rocky Dhir: Right.

Wayne Schiess: And it’s spotty, it’s stop and start, but it has made a difference in some small ways, and then I do believe that the improved instruction in US law schools has helped. So I wouldn’t say it’s in decline.

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I am not prepared to say that we’re dramatically improving the writing ability among practicing lawyers, but I would say it’s ever so gradually increasing or at least staying the same.

Rocky Dhir: So then let’s kind of talk for a second about what we as lawyers need to accomplish when we write? I think I read this in your book where — in the latest one, “Legal Writing Nerd”, where you said, as lawyers, we need to write for lawyers. We are ultimately doing legal writing and it is a type of writing, but then you get others who say, well, it needs to be in plain English, it needs to be understood.

And I have a feeling there may be some lawyers who get confused by that. They say, am I doing legal writing or am I writing for a non-legal audience that can understand me? How would you approach that question?

Wayne Schiess: I definitely agree with you that there is some confusion on the topic and very much because this is just my opinion that we often fail to distinguish between the two very different audiences for some legal techs.

Many legal techs, let’s say a brief writ in front of Appellate Court.

Rocky Dhir: Sure.

Wayne Schiess: The only people who were ever going to read that are lawyers. The clerks, the opposing counsel, the judge, I suppose your non-lawyer client might read the brief you wrote on that client’s behalf but that isn’t even always true.

Because let’s say, you are closing a $150 million contract, the opposing party is represented by lawyers, and again, legal writing for other lawyers. So a lot of what we do is writing for other lawyers in which I think we can assume. They understand the terms of art, they understand that insider jargon we are using, they are used to reading this kind of content.

Rocky Dhir: Or they will Google it.

Wayne Schiess: Or they will Google it, or they will assign a junior attorney to go look it up. But there are types of writing intended for the general public and for consumers. 99% of this, you click on when you agree to something online. They should know that there was a grid by ordinary humans without JD law degrees and that kind of stuff ought to be.

So I don’t say all legal writing has to be plain English. I say if you know the primary audience is non-lawyers or just ordinary consumers, that ought to be in plain English. If you know your primary audience is somebody with a JD that doesn’t mean you can’t improve it or write it more plainly than you are currently are, but it’s not the same as writing it at a seventh grade level for the general public. That’s my view.

Rocky Dhir: So would it be fair to say that your view would be as follows; that there is no such thing as the perfect writing style. It all depends on who your audience is and what the goal is, is that fair statement?

Wayne Schiess: Yes, and if you don’t mind a shameless plug, a book I wrote was called “Writing for the Legal Audience”, and each chapter poses that you are writing for a different type of audience and what should you do when you’re writing for that audience.

Absolutely, know your audience is fundamental to all writing and lawyers tend to be busy, we tend to default to a certain approach over-and-over, that’s normal, and I do it. But often if you are able to sort of pause and think who am I writing to and what are their expectations and what do they already know and not know, that will inform the writing.

Rocky Dhir: So I am going to share with you a little — a challenge that I faced. So when I’m not podcasting, my colleagues and I, we write legal briefs for other lawyers and one of the challenges we face is that we take the feedback from the leaders in legal writing, the guys like you, who say, here’s some new tips, and here’s some new things we can use, and new paradigms.

And then when we try that out on briefs that we are writing for clients, the clients, not always, but they will sometimes push back and say, you know, no, I much prefer having the wherefores in the premises considered and all those things that we kind of take is as old and outdated. They still want those in there, or better yet, they will say this judge will want that in there. How would you kind of navigate that tight wire?

Wayne Schiess: It’s very tricky and I don’t have a simple solution. First of all, there is a fairly decent body of literature from not a widespread group of judges, but from enough judges that suggest, no, I don’t really like the wherefore premises considered. I don’t need anymore hereins, herebys and therebys.

So judges do tend to talk the talk of write plainly for me, so I can understand it and abandon this archaic legalese. So to the extent, clients and lawyers say, well, the judge wants it that way, you can’t completely discount that, but you can’t — when I do read what judges say about legal writing, they tend to say write it plainly so I can understand it and without all of the legalese. But then you pose the second question, what about the client who is reassured by the sort of formal traditional sound and look of those things?

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Gosh, that’s a tough one because I think you should try to meet client expectations when you can.

Rocky Dhir: Absolutely.

Wayne Schiess: On the other hand, part of what they’re paying you for is your expertise and if your expertise says, in this court, we will be better off if we avoid those archaic flourishes, and I hope the client would respect that.

Rocky Dhir: You used the term “archaic flourishes” and I kind of — I like that. I have not heard that but I like that term and I think it’s very descriptive. Talk about archaic flourishes and how to address them? I took a CLE from you back in 2001, you probably wouldn’t remember me but around the turn of the century, as it were, it’s scary that we can say that now. But, when I took this, one of the things that I took away from that CLE and I still use it to this day when a client will allow me to use it, it’s called the Bold Synopsis. Can you tell us about the Bold Synopsis?

Wayne Schiess: You are kidding me.

Rocky Dhir: I am not kidding you. I love the bold synopsis.

Wayne Schiess: That is fantastic to hear, Rocky, and thank you for saying it. It is an idea that I sort of came up with when I began to encounter the boilerplate comes now opener that is very common in Texas, especially state court pleadings. All right, comes now the defendant by and through counsel of record and filed its motion for summary judgment and would respectfully show into the court as follows. And sometimes, it would respectfully show into the Honorable Court as follows.

Rocky Dhir: Right, right.

Wayne Schiess: I wondered given that judges tend to be busy that you’re not always certain they read your pleading or you’re filing before you showed up for the hearing anyway; whether that wasn’t just a waste of valuable space, given it’s the opening paragraph until I —

Rocky Dhir: Right on the front page.

Wayne Schiess: — you write a very short one-page summary of the key what do I want and why should I get it essentially? And then put it in boldface type to make it stand out.

Well, I have talked about that at CLE over the years and needless to say, I will receive some pushback. I have had a handful of conversations. I will wrap up my remarks and exit the room, and there I will encounter a couple of lawyers who want to tell me why they want to use the Comes now opener.

And most of the time, it connects back to what you asked earlier. Most of the time they say, I’m worried that if I don’t have the Comes now opener, the judge at such and such a county court, will look at it and say, well, this lawyer doesn’t know what he is doing, because he didn’t open with the Comes now. And my response is you got to put the Comes now if you think the judge is going to look funny at you because you didn’t have it.

I wonder if we are not exaggerating how many judges are really doing that. But back to my earlier reaction, Rocky, I’ve had maybe, you are probably the third, it’s possible you might be the fourth lawyer to tell me that he has tried the bold synopsis, so it hasn’t caught on widely but thank you for your efforts.

Rocky Dhir: Well, and no, absolutely and thank you for introducing me to the bold synopsis. I love it when I’m allowed to use it and what I recall at least from 2001, was that it wasn’t a full page it was like a paragraph like four sentences and it was set off like — it would look like a block quotation, single-spaced and it’s kind of indented on both sides, so it stands out, and you basically say the defendant is moving for summary judgment, here’s why and it’s three to four at most five sentences and it just really relays it and tells the story in pithy fashion, and it forces you as a writer to actually understand what you are asking for and why, what’s the gravamen of your argument?

So I enjoyed that part of it, but the fact that it hasn’t caught on, that’s why I asked you the question earlier that how do we as a profession move forward in our writing if we’re not willing to even try things like the bold synopsis. What’s your answer to that?

Wayne Schiess: Well, one of the jokes I sometimes make is, well, we just have to wait for a bunch of older lawyers to die. That’s not practical, that’s just not, nobody can take that seriously.

But I will say I had hopes, right, you can obviously tell my hopes were that it would catch on and it would become the norm, and that’s an unrealistic dream. What I have settled into is, look, it’s enough to make small improvements gradually because overtime and over a long time, things will improve.

So that’s the approach I have had to take. I have had to stop believing that I could make a big difference in all trial court pleadings filed in the State, which was never going to happen anyway, and start to hope I can make a difference in a few pleadings written by a few lawyers and that it would catch on.

(00:19:58)

If you don’t mind my jumping to something you said, Rocky, the idea of it was partly that in a busy trial docket, the judge may have not read the motion in the first place and maybe it’s open on a screen or a folder on the bench and the judge grants us down, that bold synopsis should stand out and can give the judge a quick summary of what you want and why should get you it.

You also said, you can’t write an effective one until you really understand your own case; that is just so true. You don’t write it first, even though it’s at the top of the pleading, you don’t write it first. You make sure you have a well-written trial brief or motion and then, once you are really drilled in on what you want and why you should get it, then you go write your bold synopsis, and I think it’s a reader benefit and a writer benefit.

Rocky Dhir: And let’s talk for a second about the process of understanding what you are going to write. In “Legal Writing Nerd”, you invoke Robert Caro, he is absolutely a great writer. I’ve read a couple of his books. But, tell us who Robert Caro is and what you learned from him?

Wayne Schiess: He wrote a series of biographical books about Lyndon Baines Johnson and they were lengthy but engaging, and at one point, “Texas Monthly” magazine — some magazine profiled him and interviewed him about the process of completing these books. And as I read that, what I realized was this isn’t just a narrative of an author’s approach to writing, there is a process here. He developed a process for how he would go from the core ideas, incorporate to research, build a rough draft and so on in that chapter of “Legal Writing Nerd”, where I talked about it.

I think I boiled his steps down to a process that a practicing lawyer could use on a demanding more sophisticated or lengthy document. It’s a little involved but it would certainly produce a quality piece of writing if you ask me.

Rocky Dhir: And when I read, it was like 10 steps I think that you had in there and what I remember thinking when I read that was what happens when you are in a rush. I mean so much — especially in trial practice, so much of what we would write is not being done over a series of weeks, it’s being done maybe with a five-hour window in which you have to write a brief or maybe of a day, but these are done very quickly, very truncated time crunches, how do you write in a rush like that?

Wayne Schiess: Yeah, this is another reason that the legal writing is so hard is that it is often done under harsh deadlines in which a lot of complex material has to be produced fairly quickly, and not only that, you’ve got three or four other projects right, all at the same time.

Rocky Dhir: Or in some cases 60 or 70, it depends on the type of law practice right? So.

Wayne Schiess: Right. That’s another reason that if a legal writing is improving at all, it is ever so gradual. I have just a couple of suggestions. First of all, we all know that a lot of legal writing can be template-bound or form-bound, right? You are writing the same kind of document and the same kind of situation and maybe you started with a template, that’s both bad and good.

Right, if it’s a great template that you’ve worked on and revived until it’s really effective, that’s great. If it’s not, then the same things that we are hamstringing the original document are going to hamstring yours. So one would be develop good templates or forms that if you do use them that you consistently go to.

Second would be that you can’t go to the Robert Caro 10-step process on every piece of writing, you got it, boil it down to maybe two or three steps and say, at a minimum, I am going to do this level of edit on anything that I send out with my name on it.

You have to cut corners somewhere. Here is another thing that I think sometimes helps, at least it helps me. I sort of subscribe to this idea of having a high writing like you, right? Learn stuff about writing, read stuff about writing, maybe once in a while go to a CLE about writing as a way to improve that first draft. Nobody produces perfect work on the first draft. We all know we need editing. All I am saying is the more you know and the more educated you are about good techniques, may be the first draft is a little better, requires less editing time, gets filed a little more quickly or meets the deadline a little more easily. So, those are my suggestions.

Rocky Dhir: So in essence, practice makes at least closer to perfection, if not absolute perfect, so go ahead.

Wayne Schiess: Essentially if you combine practice with a little additional learning; practice-learn, practice-learn, that’s a good cycle.

Rocky Dhir: Well, I guess that’s why in your book you say it’s so important for us to always be trying to improve. You have to keep learning about legal writing, sounds to me just learn once since they are and I know it. So I guess that ties back to what you are saying here. You have to keep practicing and learning and practicing and learning.

(00:24:58)

So may be a couple of more questions for you here that I kind of wanted to get your thoughts on. Are there hallmarks of great legal writing? Things that we can seek consistently that make really, really good legal writing or is that kind of undefined still?

Wayne Schiess: Let’s see. Since there are so many genres within legal writing, let’s talk about persuasive analytical writing. I would say a hallmark, these are my opinions, you may not agree but a hallmark for me is obvious transitions and connections. Every time I start a new paragraph, it’s very easy for me to see how this relates to what is said in the previous paragraph. And then when I read the next sentence, it’s easy for me to make a connection between the previous sentence and this sentence.

So most of us do those things moderately well, but I certainly think we could all improve our ability to make smooth transitions quickly so that the document doesn’t read like a series of disconnected ideas. It’s connected. So I am big on transitions, I’m big on flow and orderly organization that leads the reader through. So I think that’s one hallmark of it. Is this a hallmark, Rocky? The absence of grammatical and mechanical errors?

Rocky Dhir: One would hope that’s a baseline, but you never know.

Wayne Schiess: One would hope. If you file a 60-page brief, there’s bound to be a glitch or two, but if you allow it to go out with 12 errors or — so, those are to the absence of mechanical errors and smooth transitions in flow, those are two good hallmarks.

Rocky Dhir: What about the Don’t Column? What are the cardinal sins of legal writing that maybe lawyers make but they don’t realize they are making them?

Wayne Schiess: I would say that we need to be more sensitive to layout and format than we have been, and it’s really starting to happen but we haven’t been as sensitive to it as we should have. And so we still have government agencies mostly but even some private lawyers filing documents in courier, using, emphasizing text in all capitals, all of the points hitting in the brief are in all capitals text. So that’s one thing. I think we could improve the way our documents relate out in format, and may be court rules and local rules need to push this in that direction.

I would say I’m a fan of the short paragraph. A lot of legal writing I read has long paragraphs and I feel like you are just bogging your reader down.

Another one for me anyway is abstraction. We are smart, we are lawyers, we tend to think conceptually, so let’s write about concepts when often it’s more persuasive and forceful and engaging to write about actions and things that happen rather than concepts or abstractions.

That’s another hallmark right there. The writing is concrete whenever it can be and abstract only when it needs to be, you are talking about real people, real actions, real things happening, that’s much more engaging than abstractions. But by the way, you have to write about abstractions if you are going to be doing legal writing. I am not saying you don’t, but to the extent you can be concrete and specific, I think it is more engaging.

Rocky Dhir: Well, Wayne, I could talk about this all day. This is a fascinating topic. Legal writing sounds so dry but it is actually — it’s got a lot of little intricacies to it that are just so, so interesting, so I appreciate you sharing your insights with us.

If somebody wants to get a hold of you, they got a legal writing question or they want to get a hold of your book or whatever. What’s the best way to get a hold of you?

Wayne Schiess: I have a website called legalwriting.net, and if you go there, you will see some references, some links to my blog, to my book, to other things. If you were to just Google “Legal Writing and Wayne” or “Legal Writing and Wayne Schiess”, you’d find my blog and my website thereto, and I welcome questions. I absolutely love to get questions from practicing lawyer to deal with the real-world challenges of legal writing.

I don’t believe I’m living in an ivory tower here in Academia but it can be a little isolating to reach student writing repeatedly, and I love it when practitioners give me ideas. I get ideas for columns from practitioners occasionally. I always take their recommendations and write a column so it’s a lawyer who says, I have this question or concern and I think you should write a column about it. I almost always do.

Rocky Dhir: Well, I hope there is at least somebody out there who listens and is inspired to maybe come see you at UT Law School. This year’s State Bar Annual Meeting is going to be in Austin and so that would be a great chance to come meet some other lawyers and stop in and talk to Wayne.

But Wayne, I want to thank you so much for being with us today and for — and if I may say for sharing your eminent nerdiness with us.

Wayne Schiess: Thank you. Happy to do it, thank you.

Rocky Dhir: This was great. Well, that is all the time we have for today. I want to thank my guest, Wayne Schiess, for joining us and of course, I want to thank you for tuning in. This podcast is brought to you, thanks to the generous support of LawPay. So thank you LawPay.

(00:30:02)

If you like what you heard today, please rate and review us in Apple Podcasts, Google Podcasts, or your favorite podcast app. And until next time, remember life’s a journey, folks. I’m Rocky Dhir signing off.

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