Some examples and a new view This column summarizes two kinds of legal-writing plagiarism and then presents a recent article that proposes a new view of plagiarism in law practice. Law school plagiarism In In re Zbiegien, a student who committed plagiarism in a law-school seminar paper was confronted, admitted the plagiarism, and accepted the law school’s penalty: a grade of F. Although he disclosed the plagiarism and penalty on his bar application, he was denied admission. He appealed to the Illinois Supreme Court, which granted him admission, stating, “He has been punished; he is ashamed ..read more

Two empirical studies This post discusses two studies of appellate-brief writing that reached different conclusions and call for different explanations. The first study scored nearly every merits brief submitted to the U.S. Supreme Court from 1969 to 2004 using four readability-assessment tools,[1] two of which are described here. The Flesch Reading Ease Scale: uses sentence and word length to assess readability and assigns a score: zero to 30 is “very difficult,” while 90 to 100 is “very easy,” and 60 is “plain English.”[2] The Flesch-Kincaid Grade Level: reports the number of years of for ..read more

Passives, apostrophes, and commas Legal writers should always aim for grammatically correct prose. Why? To me, the key reason is to establish and maintain credibility: When readers see that you know how to write correctly, they are also likely to believe that you stated the facts and law correctly and presented accurate, valid arguments, explanations, or advice. But occasionally, grammar itself becomes an issue in a case. Here are some grammatical matters that made it into caselaw, including one that made headlines. For the first three examples below, I thank Professor Diana Simon and her exce ..read more

I like to use the Navigation Pane in Microsoft Word to help me with large-scale organization. Here’s a step-by-step guide and then an example. First, you need to be using Styles in Word. Here’s my brief guide to using Styles. Now, open a document in which you’ve used Styles to create headings. Then— 1. Click the View tab 2. Look for the option that includes Ruler, Gridlines, and Navigations Pane: 3. Check the box for Navigation Pane, so your screen should look like this: 4. Focus on the left-side Navigation Pane, which shows all the headings you’ve created in your document. It’s clickable an ..read more

The power, the magic, and the charm of three Anecdotal evidence suggests that when trying to persuade, presenting three concepts is better than presenting two. Or four. Or more. We see examples of memorable, powerful threes in advertising, in literature, and even in the Declaration of Independence: snap, crackle, and pop I came; I saw; I conquered life, liberty, and the pursuit of happiness Yes, I just gave three examples. Do you have a sense of the importance of three in writing? Did you ever learn to write a “five-paragraph essay”? You present an introduction and a conclusion, but in betwe ..read more

Research and recommendations for transitions In a recent article, Professor Diana J. Simon of the University of Arizona James E. Rogers College of Law gathered results from some empirical studies on the use of “connectives” (what I’d call “transitions”) in writing. Prof. Simon’s article is called, “The Power of Connectivity,”[1] and the advice is informative and valuable to legal writers who want to write readable, easily comprehensible prose. Research by psycholinguists and cognitive psychologists shows that transitions in writing improve reader comprehension and even speed up reading and und ..read more

It’s more than “read a lot” and “have a good ear.” At a recent CLE talk, I said that implementing a certain technique would require “exercising editorial judgment.” A lawyer asked, “How do you develop editorial judgment?” In this column, I try to answer that question. Note: This column is about words, sentences, paragraphs, and documents, not about substance and content, which are highly important in legal writing: Should I mention this fact? Should I include this topic [information, explanation, analysis, argument, counter-argument, policy, etc.]? Does my reader need more background—or less ..read more

In legal drafting, should you worry about using shall? Consider three examples: Subcontractor shall comply with all Contractor safety rules. “Seller” as used in this contract shall mean Oaker Services. Members of the panel shall be selected by the commissioner. Although shall is generally harmless in those examples, taking more care when using shall would be a good thing for three reasons. 1. Shall can be ambiguous. Courts have construed shall to mean both “must” (mandatory) and “may.” Here are two statements about the meaning of shall from the Texas Supreme Court: We agree, of course, that ..read more

Gathering opinions on new legal writers In summer 2022, I had lunch meetings with five local attorneys. My goal was to gather input from practicing lawyers about ways I could improve my teaching of legal writing. Before meeting, I asked my “consultants” to consider three questions: What do you think of the writing abilities of the new lawyers you work with? What do you think of new lawyers’ ability to manage research and writing projects? What are some changes or additions to law-school legal-writing instruction you would recommend? 1. Writing abilities of new lawyers I was pleased to learn ..read more

The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing by Diana Simon Professor Diana Simon of the University of Arizona James E. Rogers College of Law has written an entertaining and informative guide to grammar and punctuation for legal writing. I’ve read it cover to cover, and I loved it. It’s a reference—but it’s more. It has solid explanations (the why of grammar and punctuation)—but it has more. I recounts the stories—the real cases—that show that grammar and punctuation matter. The claim dismissed because of the passive voice The deportation case that hinged on a ..read more