The Use of Plain-Language Principles in Texas Litigation Formbooks

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I. OVERVIEW

The tools of the litigation attorney's craft are documents. A trial begins with pleadings, evolves through motions, is limited by discovery, is decided upon the basis of a jury charge, and

is ultimately defined by a court order. The common thread is writing. The Federal Rules of Civil Procedure, as well as the procedural rules of most states, provide that the lawsuit begins with a "short and plain statement" of the facts.1 Other evidentiary and procedural rules guard against "confusion."2 Yet a survey of most legal documents reveals archaic language, run-on sentences, and outdated writing concepts. This so-called "traditional" legal writing is under attack. The plain-language movement is trying to reform legal writing. New attorneys find themselves at the center of a dispute among doctrinal and legal-writing academics, law-school-writing-program directors, experienced litigators, and judges over what is appropriate legal writing. The new attorney ostensibly finds the answer in a formbook. The authors of the formbooks appear to be authoritative. For example, William Dorsaneo's Litigation Guide3 may be the bestselling legal supplement in Texas. Practicing attorneys rely on the Litigation Guide and other formbooks to craft documents-but are these formbooks well written? This Note investigates whether formbooks embrace the plain-language movement; if they do not, the Note argues that the plain-language movement is destined to fail.

This Note has four parts. First, the Note provides some history on the plain-language movement and identifies some common mistakes in legal writing. second, emergence of formbooks in Texas and the results of my interview with William Dorsaneo are discussed. Third, the Note presents the PEER Review model for evaluating legal forms and applies the model to a sample of forms. Fourth, conclusions are drawn about whether formbooks embrace plain-language principles, and the Note's conclusions are then compared with the results of a survey conducted of Texas litigation practitioners.

II. BACKGROUND OF THE PLAIN-LANGUAGE MOVEMENT

The plain-language movement is a theory of communication that attempts to reform traditional legal writing. Plain language is defined as "the idiomatic and grammatical use of language that most effectively presents ideas to the reader."4 Although the definition appears formal, its simple message is effective communication.

To be effective, the language of the law must convey thoughts.5 In conveying thoughts, the principle of simplicity requires communicators to use common language to express ideas unless there are reasons for using different vocabulary.6 Traditional legal communicators are often criticized for failing to adhere to the principle of simplicity. Often, traditional legal writing contains complex language and syntax. Plain-language advocates argue that if there is no reason for using complex vocabulary, then traditional legal writing violates the principle of simplicity and interferes with the process of communication.

The plain-language movement is important because it distinguishes good legal writing from bad legal writing. Debra Cohen, an Associate Professor of Law at West Virginia University defines "bad legal writing" as any writing that is ineffective and difficult to understand.7 Typically, bad legal writing is "wordy, unclear, pompous, and dull."8 Plain-language advocates, such as David Mellinkoff and Bryan Garner, attribute these characteristics to traditional legal writing. Proponents of traditional legal writing, such as David Crump, argue that precision requires the use of unfamiliar words, special meanings, and grammatical complexity. In some instances, the proponents of traditional legal writing are correct-necessity requires unfamiliar language. But usually traditional legal writing is bad because lawyers lack time.10

There is an inextricable relationship between a lack of time and the use of forms. Some lawyers conclude they do not have time to draft, edit, and revise original documents. Editing and revising require time. The lack of time promotes the use of forms, as using legal forms is one way lawyers save time.11 But some forms are poorly written; therefore, the lawyer saves time but produces documents that contain mistakes.

III. COMMON MISTAKES GENERALLY FOUND IN BAD LEGAL WRITING

There are several common mistakes found in bad legal writing. Poor grammar, punctuation, and sentence structure are typical in any bad writing. In addition to these basic flaws, bad legal writing includes poor word choices. Typically, the mistakes in word choice fall into one of six broad categories. Those categories include: Archaisms; Doublets and Triplets; Formal Words; Here- and There-Words; Legalisms and Lawyerisms; and Nominalizations.

A. Archaisms

Archaisms are "outmoded words or expressions that are not yet obsolete" but are still used in legal writing.12 A partial list of archaisms includes:

* alack

* aforementioned

* comes now

* inter se

* know all men by these presents

* methinks

* now comes

* perchance

* pursuant to

* said (when used as a synonym for "the")

* shew

* to wit

* witnesseth13

Plain-language advocates argue that archaisms contribute to poor legal writing.14 But supporters of traditional legal writing may believe that archaisms reflect the language and meaning of the law. To traditional legal writers, the archaic nature of certain words lends credibility to the prose. Mellinkoff disagrees. He believes that some terms were inherently bad. The fact that the terms were archaic simply meant they had been bad for a longer period of time.15 B. Doublets and Triplets

A particular subset of archaism is the use of doublets and triplets. Doublets and triplets are used to amplify legal language through the use of synonyms.16 Doublets and triplets have evolved for four reasons.

First, the use of doublets and triplets results from the combination of languages inherent in the law. The language of the law is a combination of Old and Middle English, French, Latin, and other languages.17 The combination gives legal language a sense of rhythm.18 Rhythm serves as an aid to memory and instruction.19 It also adds to the gravity of language.20 The result is an unhurried prose developed through history.21

second, the use of doublets and triplets is a relic from the strong oral tradition in early England. "[T]he strong oral tradition in England led inevitably to a surfeit of words to allow time for the listener to take in the speaker's point."22 The extra words helped to overcome illiteracy in early England.23 "Illiteracy and an oral tradition are sides of the same coin."24 Certain words became part of the oral tradition because the words were perceived as part of a ritualistic formula.25 The formula-the oral tradition-was an integral part of the pleading process. For an illiterate society, word-for-word repetition facilitated retention.26 Despite greater literacy, the habit of surplus words continues in modem legal formbooks.27

Third, the use of doublets and triplets helps comprehension. Synonyms in legal language serve as a gloss.28 Unfamiliar terms are paired with words that may have a familiar meaning.

Fourth, lawyers use doublets and triplets because they distrust language. Lawyers distrust language and overcompensate by using more words than necessary.29 For example, the phrases "give, devise, and bequeath" and "indemnify and hold harmless" are mere surplus. Lawyers tend to use these phrases because they believe the phrases are peculiar and, therefore, more precise. But the phrases were not borne of precision. Rather, these phrases were fashionable at the time formbooks were created.30 The fashion of the language changed, but the formbooks did not.31

C. Formal Words

Formality is distinct from the use of formal words. "Formality denotes conformity to rules, propriety, or precision of manners."32 While lawyers should use formal words when formality requires their use, "many lawyers go overboard, resorting to unnatural pomposities where ordinary words are called for."33 For example, in formbooks the phrase "this honorable court" is unnecessarily formal where the simpler phrase "the court" is sufficient. These phrases tended to reflect the politesse of the English legal community. But the genteel politeness of the 18th-Century English courtroom is anachronistic. In particular, some modern formbooks cling to phrases such as:

* comes now the plaintiff

* emoluments

* forthwith

* to the said judge of this honorable court

* witnesseth

D. Here- and There- Words

Litigators should avoid using "here- and there- words" because the words are outdated. Words such as heretofore, herein, hereafter, and thereof are relics from Old and Middle English.34 Their continued use stems from literary usages of the Bible. 5 For example, in the King James Bible, "heretofore" is used six times, "herein" is used eight times,37 "hereafter" is used thirteen times,38 and "thereof is used 369 times.39 Most lay writers avoid these words, but, for the lawyer, these words are daily bread.40

Another reason to avoid "here- and there- words" is to avoid ambiguity. For example, Garner discusses the use of "hereafter" in his Dictionary of Modern Legal Usage.4i The term has multiple meanings which can cause confusion. "Hereafter" can mean either (1) henceforth-i.e., from this moment forward, or (2) at some future time. The more precise approach is to make the reference exact.42

Finally, litigators should avoid using "here- and therewords" because of economy. Litigators frequently use "hereinafter" to define terms in a document. Typically, the usage falls into one of two categories. First, the litigator uses "hereinafter" to establish an abbreviation. For example, a motion for summary judgment might include the following: "The Plaintiff in this matter, Really Big Media (hereinafter "RBM") . . . ." second, the litigator may use "hereinafter" to alert the reader to a truncated name of a party. For example, a motion to compel discovery might include the following: "the Defendant in this matter, Prince Charming, Inc. (hereinafter Charming) . . . ."

Both usages are unnecessary. "By convention, it is no longer necessary to use quotation marks, bold type, or to add the words 'hereinafter referred to as . . .'; parentheses are sufficient."43 This rule can be applied to abbreviations and truncated names.44

E. Legalisms & Lawyerisms

Legalisms and lawyerisms "are the circumlocutions, formal words, and archaisms that characterize lawyers' speech and writing."45 Most of these phrases should be avoided because they do not have any substantive purpose. Garner argues that "the only reason for using them is to affect a legalistic style-a style better interred than exhumed."46 The words in a pleading should not differ from the words in ordinary English unless there is a good reason to avoid the ordinary word.47

Most legalisms and lawyerisms in formbooks can be easily simplified. Consider:

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F. Nominalizations

Nominalizations are verbs that have been changed into nouns usually by adding a suffix such as -tion, -sion, -ment, -ence, -ance, or -ity.48 For example,

arbitrate becomes arbitration,

compel becomes compulsion,

amend becomes amendment,

depend becomes dependence,

rely becomes reliance, or

conform becomes conformity.

Nominalizations act as "thickening agent[s], like cornstarch or concrete."49 They expand writing. "A few are fine, but when you begin to use too many of them, they clog up your writing and make it hard to get through."50

Lawyers should avoid nominalizations because eliminating nominalizations (1) reduces the use of prepositional phrases,51 (2) reduces the use of "be verbs,"52 (3) humanizes writing by helping the reader understand "who does what,"53 and (4) makes writing less abstract.54

IV. WHAT ARE FORMBOOKS AND How ARE THEY USED?

The formbook is a collection of forms used in the pleading process. The formbook evolved to help new lawyers learn how to practice law.55 Typically, new lawyers learned how to practice law from experienced lawyers who collected their work in compilations called formbooks.56 The adoption of model codes facilitated formbooks because the same forms could be applied to multiple jurisdictions. The first formbooks were written in the late 185Os. Texas has had a rich history of formbooks since 1858. John Sayles created his treatise to provide practitioners and students with an authoritative guide to practicing law in Texas.59 In addition to chapters devoted to Texas rules, Sayles included eighty-three model forms.60 He collected the forms in a chapter that he described as "Practical Forms." In 1898, Sayles expanded his list to include 135 forms61 and included forms for a sheriffs bond; writ of certiorari and supersedeas;63 notice of filing interrogatories;64 judgment by default5; and damages assessed by the clerk.66

In 1901, C.S. Bradley created a treatise that described Texas rules of procedure and provided practitioners with twenty model forms.67 Like Sayles, Bradley created his treatise because he wanted to provide practitioners with a useful guide to practicing law in Texas.68 Some of Bradley's forms included a petition for an agreed case in the trial court,69 a bill of exceptions,70 and a motion for rehearing in court of civil appeals.71

In 1903, J.W. Moffett proclaimed that "[a] correct and complete form book is a valuable addition to any [legal] library in Texas." 72 In the third edition of his Texas Civil Form Book,73 Moffett identified the two types of lawyers for whom his treatise would be of no benefit: the highly experienced and the highly callow.74 Moffett's original work endured nine revisions and expanded to include 999 forms.75 The growth of the Moffett formbook is indicative of the current formbook industry in Texas.

Currently, there are four main sources of forms for Texas litigators:

(1) Lexis's Texas Litigation Guide,

(2) Jones McClure's O'Connor's Texas Civil Forms,

(3) James Publishing's Texas Pretrial Practice, and

(4) West's Texas Civil Practice Pretrial.

These formbooks are available in both print edition and through electronic services.

A. The Texas Litigation Guide

My first reaction when I came here to Texas was that people weren 't that familiar with books. William Dorsaneo, February 10, 2004.76

Professor William Dorsaneo is the author of the Texas Litigation Guide, the largest formbook in Texas. The print edition is published by Matthew Bender, and it includes 26 volumes that are updated four times per year. The online service is available through Lexis and is updated monthly. Both the print edition and the online service are expensive. The pricing structure for the print edition has two stages. First, the initial cost for the first year is $2950. second, the annual subscription rate for updates is $2318. The online subscription is $1871 per year. Lexis describes the Litigation Guide as: "the premier authority on Texas civil litigation. Routinely cited by Texas courts and practitioners, this step-by-step guide covers civil procedure from filing the petition through appellate procedure, with substantive practice-area topics offering legal background discussion, checklists, forms, and research guides."77

Lexis also advertises that the Guide contains "[fjime-tested forms for any situation including pre-trial, trial, and appellate practice forms."78 In the "about the author" section, Lexis describes Professor Dorsaneo's credentials:

William V. Dorsaneo III is the Chief Justice John and Lena Hickman Distinguished Faculty Fellow and Professor of Law at Southern Methodist University, Dedman School of Law in Dallas. He is Board certified in civil appellate law and is an active member of the Advisory Committee to the Texas Supreme Court, the Committee on Court Rules of the State Bar of Texas, a member of the American Law Institute, and chair of the Texas Supreme Court's Task Force for Revision of the Texas Rules of Civil Procedure.79

There is no mention of his training in writing, so I asked him. He doesn't have any. Yet the Texas Litigation Guide is one of the most widely purchased legal resources in the state of Texas. The success of the Guide is due to the skill of Professor Dorsaneo and the comprehensive nature of the Guide. Professor Dorsaneo is a graduate of Penn and The University of Texas School of Law. He studied philosophy as an undergraduate and apprenticed under a successful Texas attorney. But the fact remains that Professor Dorsaneo did not seek out any formal writing assistance when he crafted the forms.

The evolution of the Guide is a lesson in entrepreneurism. Early in his professional career, Professor Dorsaneo observed that Texas did not have serviceable research aides.81 There were two main sets-Sayles and Bancroft Whitney-and neither was very good.82 In 1975, he started documenting his research and writing forms, similar to on-the-job training. A few years later, when the governor of Texas met him at a party, the governor referred to him "as the formbook writer doing the new forms."83 Matthew Bender contracted to publish the forms and the enterprise was born. The Litigation Guide has been in print for over twenty years.

The forms have not changed much since the beginning. In fact, Professor Dorsaneo observes that "the forms have tended to stay more or less the same over time."84 There have been a few improvements-some of the forms now use Arabic numerals, headings, and subheadings-but the basic language of the forms has tended to remain static.

B. O 'Connor's Texas Civil Forms

Jones McClure publishes the O'Connor's series of legal books. In the "about us" section of their website they describe their mission as publishing user-friendly books written in plain English.

Jones McClure Publishing was founded to publish user-friendly law books. Since the first edition of O'Connor's Texas Rules * Civil Trials-now commonly referred to as the "trial lawyer's bible"-we have upheld our tradition of publishing books geared toward the practicing lawyer. The unique format of our publications-portable books written in plain English that are fast and easy to use-has filled a special need for attorneys across Texas and the other 49 states.85

Justice Michol O'Connor, who retired from the First Court of Appeals in Houston in 2000, authors the O'Connor's litigation series. Justice O'Connor sat on the First District court for eleven years. She was also chair of the Appellate Practice and Advocacy section of the Texas State Bar and is board certified in civil appellate law. The first book in the series was published in 1991.

The 2004 Texas Civil Forms covers pleadings and motions throughout the trial process. The forms are available in print version for $59.95 and in CD version for $99.95. The book claims to provide plain-English forms for pleadings and every common motion.86 The author states that the forms are written in plain English and that the author has avoided legalese and archaic conventions.

C. Texas Pretrial Practice

James Publishing, a California-based legal publisher, publishes Texas Pretrial Practice for $129. The website advertising this form book describes the text as a plain-English publication with ready-to-use forms:

Texas Pretrial Practice is organized in step-by-step outline format that walks you through each portion of pretrial procedures featuring proven practice tips to help you avoid pitfalls. Procedure and law outlines in the publication are supported by 2,700 case citations summarized in plain English. This twovolume publication also comes with a free companion CD-ROM featuring 165 ready to use forms. The companion CD-ROM also contains the entire contents of Texas Pretrial Practice in a keyword searchable format.88

Texas Pretrial Practice was written by Scott Brister, Justice of the Texas Supreme Court. Justice Brister graduated cum laude from Harvard Law School. He clerked for the Texas Supreme Court and worked for eight years for the Andrews and Kurth law firm. He was the 234th state district's judge for eleven years, was elected to the First Circuit Court of Appeals, and was recently appointed as the Chief Justice of the Fourteenth Court of Appeals.

Interestingly, law was his backup plan. "Although Justice Brister has had a distinguished career in the legal profession, first as an attorney and later as a Justice, he originally aspired to be a teacher."89 Justice Brister studied education at Duke University and planned on a career as a teacher. He still fulfills part of that dream by teaching his children each day before heading to the courthouse for work.90 His aspiration for teaching can be seen in the forms included in the Texas Pretrial Practice formbook.

D. Texas Civil Practice Pretrial

West Publishing publishes the Texas Civil Practice Pretrial Guide. The Texas Civil Practice Pretrial Guide retails for $250 per year. West advertises the guide as a step-by-step guide written in plain language:

How to guide for Texas practitioners concerning civil pretrial procedure. Includes step-by-step analysis of civil pretrial, as well as easy to use forms, checklists and practice tips . . . Designed to include the most current forms and checklists you need to expertly handle this area of law .. . Modern English and plain language allow for faster, easier research.91

The Texas Civil Practice Pretrial guide is written by Kirn J. Askew and Judge Adele Hedges. Ms. Askew is a partner and member of the management committee at Hughes & Luce, L.L.P., headquartered in Dallas, Texas. She handles complex commercial litigation and employment cases. She is a graduate of Georgetown University Law Center and served as law clerk to the Honorable Jerry Buchmeyer, Chief Judge of the U.S. District Court for the Northern District of Texas. She is a member of the American Law Institute, the ABA Litigation section Council, and a fellow of the American, Texas, and Dallas Bar Foundations. Ms. Askew has extensive experience as a CLE speaker and course director and is the immediate past chair of the State Bar of Texas CLE Committee.

Justice Hedges became the Chief Justice of the Fourteenth Court of Appeals, Houston, Texas in December 2003. She previously served as a Justice on the First Court of Appeals, Houston, Texas from 1992 to 2003. The Texas Association of Civil Trial and Appellate Specialists selected her as the 1998 Appellate Judge of the Year. She began her legal career as a litigation associate with Fulbright & Jaworski and later served as general counsel of a major Houston bank. Hedges received her law degree summa cum laude from University of Houston Law School in 1974.

V. EVALUATING THE LANGUAGE USED IN FORMBOOKS

Litigators in Texas have a wide range of choices when they select model documents from formbooks. The legal credentials of the authors are unassailable. But none of the authors have any formal training in writing. Three of the sources-O'Connor's Texas Civil Forms, James Publishing's Texas Pretrial Practice, and West Publishing's Texas Civil Practice Pretrial-claim to write forms in plain language. Before this Note evaluates the veracity of this claim, it will first review the general history of evaluating language and describe a rubric developed for evaluating legal writing specifically.

A. History of Readability Tools

Readability describes how easy a document is to read. The first readability indices were developed in the United States during the 1920s to help educators make textbook selections.92 These indices used mathematical formulas that assessed the difficulty of written material and defined the appropriate grade level for readers. Formulas work well for the elements of written material that can be subjected to mathematical evaluation, such as pronoun use, word length, and average sentence length. But some elements that promote readability cannot be measured mathematically. For example, sentence structure, organization of ideas, and document layout are also important to comprehension and readability. Nevertheless, there are at least seven readability indices that have been used since 1948.93 One of the most widely adopted was developed by Rudolph Flesch.94

The Flesch Reading ease Scale provides a readability score based upon total number of words, sentences, and syllables.95 The Flesch approach measures writing on a 100-point scale. High scores on the Flesch Scale correlate to easier reading. In contrast, a "O" score correlates to difficult reading and suggests an average sentence length of more than 37 words. Flesch identified "65" as a good plain-language score.96 The Flesch score is so common that it is included in word-processing programs such as Microsoft Word and Corel WordPerfect.

In addition to Flesch, there are other indices that purport to assess the readability of written material.97 Like the Flesch scale, these other indices employ a mathematical formula.98 Most indices also suggest the grade level necessary to read the written material. The Internet has increased the availability of these tools. For example, programmers and consulting agencies have created downloadable programs to evaluate writing." But no one has created a tool specifically to evaluate legal writing.

B. The PEER Review Model for Evaluating Litigation Forms

This Note outlines a new rubric specifically designed to evaluate legal writing. The Plain English and Exoteric Readability (PEER) review combines the Flesch Reading-ease Scale with plain-language principles to produce better legal writing. A PEER review assesses:

* Flesch Readability ease Scale

* average sentence length

* use of legalisms

* use of double and triple negatives

* use of excessive cross-references

* use of over-defined terms

* use of doublets and triplets

* use of archaisms

* use of nominalizations

* use of poor document design

The PEER review approach will help litigators evaluate the forms used in formbooks for plain-language principles and readability. The approach is formulaic. The formula is simple enough to be done without the aid of a computer, but the approach could easily be adapted to a simple computer program. A lower score on the PEER review equates to better legal writing. The PEER review formula is:

Flesch Scale + average sentence length + passive sentence % + S (traditional legal writing)

In order to demonstrate the PEER review, excerpts were selected from two forms regarding adoption. The first form is from the American Jurisprudence Pleading and Practice Forms Database. The database contains annotated forms and was updated in October 2003. Family-law litigators use this form to annul an adoption:

Now comes _____, the mother of the minor child, _____, joined pro forma by her husband, _____, and petitions the court to annul, vacate, set aside, and hold for naught the judgment and decree of adoption rendered on _____ [date], granting leave to _____, an unmarried woman, to adopt the minor child, for the following reasons and on the following grounds:

Wherefore, petitioners request that respondent be served with citation in this cause in terms of law, and that the judgment and decree of adoption rendered on ________[date] be annulled, vacated, set aside, and held for naught, and that respondent be restrained from removing the minor child from ______ County, _____ [state] during the pendency of these proceedings.100

The PEER review has 5 steps. First, use the Flesch-Kincaid readability program in Microsoft Word or Corel WordPerfect to generate readability and grade-level statistics. The Flesch-Kincaid statistics suggest that this form is not written well. The overall readability score is 10.8, and the suggested grade level is 12.0.

Second, use the statistics feature in Microsoft Word or Corel WordPerfect to calculate the average number of words per sentence. The excerpt contains only 124 total words but averages 62 words per sentence.

Third, note the percentage of passive sentences used in the form and include that value (without any decimal places) in the equation. In this case, the excerpt is 100 percent passive, so add 100 to the equation. The form relies on the verb "be" to do its work. For example, the respondent should "be served" and later "be restrained." The form also asks that the decree of adoption "be annulled"-as well as "vacated, set aside and held for naught."

Fourth, count the number of archaisms, Latin phrases, nominalizations, legalising, and doublets and triplets in the form. For example, this form uses archaisms such as "Now comes" and "Wherefore." The form unnecessarily uses the Latin phrase "pro forma" and compounds the use of triplets by adding a fourth possibility to "annulled, vacated, set aside, and held for naught."

Fifth, assess the overall document design, adding points if the form is difficult to follow. Professor Wayne Schiess, the director of the legal-writing program at the University of Texas School of Law, suggests several mechanical and aesthetic improvements to document design.101 Some of these suggestions have been incorporated into this Note's PEER review model. For example, points are added to the score if the formbook author fails to use headings, overuses capital letters, or fails to enumerate sections. In this case, because the adoption form does not use headings or enumerated sections, two points are added.

This form is not well written. The high average number of words per sentence and the passive sentence structure are the two largest factors. Additionally, the form violates principles of plain language at least eight times. When these numbers are added together, the overall PEER review score is:

10.8 + 62 + 100 + 8 + 2= 182.8

The second form is from California. It is also used to annul an adoption. While the California form scores better on the PEER review than the American Jurisprudence form, the language could still be improved.

Petitioner alleges as follows:

1. Petitioner resides in _____ County, California.

2. _____ [Name of child], a minor child, was born to petitioner and _____ [name of other birth parent] on _____ [date] at _____ [location],

3. [Allege non-procedural defect in adoption, e.g. Birth father's consent was obtained through misrepresentation constituting fraud.]

4. As a result, petitioner consented to the adoption of the child by ______ [names of adoptive parents] on ______ [date].

5. On _____ [date], petitioner requested _____ [names of adoptive parents] to return the child to him/her. They refused to do so, and continue to refuse.

WHEREFORE, petitioner prays for an order setting aside the adoption proceedings and vacating the order of adoption made by this Court on _____ [date], returning the care, custody and control of _____ [name], a minor child, to petitioner, and for such other and further relief as may be just and proper.

Date:_____.102

In order to apply the PEER review, follow the five steps. The Flesch readability score is 40.3 and the grade level is 11.9. Although the California form uses more words than the American Jurisprudence form, the average sentence length in the California form is much better at 17.2. Stylistically, the enumerated form enhances readability; however, the form contains some classic legalese. For example, the form clings to the archaism "wherefore." Further, it unnecessarily uses the triplet "care, custody, and control." Finally, the form has a few passive sentences. The PEER review score for this form is:

40.3 + 17.2 + 40 + 2 + O = 99.5.

This type of analysis can be applied to any form. The two forms above were selected at random from the forms available on Westlaw.

In order to investigate this Note's primary research question-whether formbooks subscribe to plain-language principles-the PEER review was applied to some of the forms filed in common causes of action in Texas state court. The selected forms include the original petition and answer, dilatory pleas filed before the trial, discovery motions, pre-trial motions, jury charges, post-trial motions, and the supersedeas bond filed after final judgment.

VI. APPLYING THE PEER REVIEW MODEL TO TEXAS FORMS

A review of a sample of the forms available through current Texas formbooks uncovered that authors of formbooks have discarded some of the vestiges of archaic legal writing but have continued to cling to certain outdated word choices and linguistic constructions. The worst among the four formbooks selected is West's Texas Practice Guide: Civil Pretrial. The best is O'Connor's Texas Civil Forms.

Despite West's advertising that it employed plain-language principles, West's formbook consistently scored the worst on the PEER Review. The average score for West's forms was 163. West's Texas Practice Guide: Civil Pretrial advertised "step-by-step analysis" that employed "modern English and plain language for faster research."1 3 In West's "Motion to Allow Untimely Objections to Interrogatories," the company relies on such modern favorites as "to the honorable judge of said court" and "comes now the ___." There are more egregious examples, such as West's providing the young practitioner with such modern sentence structure as "all or part of the cause of action alleged herein accrued in" and "each and every allegation of the aforementioned paragraphs set forth herein verbatim."104

While Dorsaneo's Texas Litigation Guide was better than West's effort, Dorsaneo's documents still scored poorly on the PEER Review. The average PEER Review score for the sample of Dorsaneo's forms was 113. The PEER Review score is determined by a combination of difficult readability, inappropriate passive sentence construction, and some incorrect word choices. The Texas Litigation Guide forms were usually captioned "to the honorable court" and the closing prayer often included the archaism "wherefore."105 There are a number of doublets and triplets in the prose such as "true and correct."106 However, Dorsaneo did not advertise his formbook as a plain-language set of model forms. He believes that the Litigation Guide is primarily a research system1 7 and stated that he wishes he "had the time and the money" to redo all of the forms.108

James Publishing's approach to its forms in Texas Pretrial Practice is less research oriented.109 The forms are shipped to the user on CD-ROM and are very basic. The forms are in Microsoft Word and a user could easily cut and paste the substance of a cause of action into the form. The Texas Pretrial Practice forms score better on the PEER Review than did either West's forms or Dorsaneo's forms. The average score for Texas Pretrial Practice is 79. Despite the better PEER Review score, the Texas Pretrial Practice forms could be improved. The author, Judge Brister, clings to here- and there- words and relies on the phrase "pursuant to."110

Of the four formbooks selected, the best is O'Connor's Texas Civil Forms. O'Connor's average PEER Review score was the lowest at 57. Texas Civil Forms drops the unnecessary salutation to the court and the concluding prayer replaces "wherefore, premises considered' with the simpler "for these reasons."111 Instead of the ambiguous phrase "pursuant to" O'Connor's chooses "as required by" or "under."112 There are a few passive constructions, but generally the grammar and sentence structure of the Texas Civil Forms is active and readable.

VII. CONCLUSIONS ON USE OF PLAIN-LANGUAGE PRINCIPLES IN TEXAS FORMBOOKS

Professor Dorsaneo observed in his interview that "he was the standard"113 concerning forms in Texas and that young practitioners probably benefit the most from his formbook.114 He is correct. In a survey of Texas litigators, more than two-thirds of lawyers had relied on commercial formbooks containing sample documents,115 and over half of the survey respondents had fewer than seven years of legal experience.116

Professor Dorsaneo's reflections on the use of formbooks and their audience are strikingly familiar. One hundred years ago, J.W. Moffett proclaimed that "a correct and complete form book is a valuable addition to any [legal] library in Texas."117 Further, Moffett predicted that it was lawyers with a few years of experience who would benefit the most.118

Moffett and Dorsaneo are correct; formbooks are a de facto writing program in Texas. Young lawyers seek out authoritative examples to ameliorate their anxieties about filing court documents. Nearly one-third of lawyers base a significant portion of the court documents they file on commercial formbooks or in-house model documents.119

There are three significant reasons why Texas lawyers use forms. First, lawyers agree with Debra Cohen that forms save time.120 second, lawyers state that forms help them to meet client expectations.121 The clear implication is that clients expect formality. They expect that musty smell that Mellinkoff and Garner associated with archaism. Third, almost one-third of lawyers state that forms help to meet judicial expectations.122 The expectation is that the rhythm of doublets and triplets reverberates from Lord Coke's courtroom to the modern day. At least 11% of lawyers believe that some of this rhythmic and musty language is necessary for a court document to be correct.

VIII. IMPLICATIONS FOR THE FUTURE OF THE PLAIN-LANGUAGE MOVEMENT

The survey results, evaluation of Texas formbooks, and interview suggest that there is a slow shift toward litigators' writing more plainly. Survey respondents stated that they relied on formbooks. Three of the four Texas formbooks market their material as plain-language products. At least one of those formbooks-O'Connor's-actually does avoid unnecessary legalese. And Professor Dorsaneo stated he would revise his formbook if he had more time. There is a trend toward plain language, but the trend is slow.

If the formbooks evolve and continue to embrace plainlanguage principles, the formbooks will provide practicing litigators with better templates. The survey results confirm that litigators use formbooks to save time and that, in particular, young lawyers rely on formbooks for models.

There is an opportunity for the Association of Legal Writing Directors (ALWD) to become involved with formbooks and to promote plain language. ALWD could collaborate with the formbook writers of the larger states such as Texas to give formbook authors a "plain-language stamp of approval." ALWD would provide third-party credibility to publishers' claims that their books are written in plain language. ALWD could use the PEER review rubric to evaluate the forms, to set a minimum target score, and to determine whether the formbook is compliant. The collaboration would bring more attention to the plain-language movement and improve the quality of formbooks.

IMAGE FORMULA 4IMAGE FORMULA 5IMAGE FORMULA 6IMAGE FORMULA 7IMAGE FORMULA 8IMAGE FORMULA 9IMAGE FORMULA 10IMAGE FORMULA 11IMAGE FORMULA 12IMAGE FORMULA 13IMAGE FORMULA 14IMAGE FORMULA 15IMAGE FORMULA 16IMAGE FORMULA 17IMAGE FORMULA 18IMAGE FORMULA 19IMAGE FORMULA 20IMAGE FORMULA 21IMAGE FORMULA 22IMAGE FORMULA 23IMAGE FORMULA 24IMAGE FORMULA 25IMAGE FORMULA 26IMAGE FORMULA 27AUTHOR_AFFILIATION

Kevin D. Collins*

AUTHOR_AFFILIATION

* J.D. candidate, The University of Texas School of Law, expected May 2005. B.A. in Economics, The University of Texas at Austin, 2003. The author would like to thank Professor William Dorsaneo for agreeing to be interviewed for this Note and Professor Wayne Schiess for reviewing the Note before publication.

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DoRSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX A: WILLIAM DORSANEO INTERVIEW TRANSCRIPT

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APPENDIX B: The Survey Questions

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APPENDIX B: The Survey Questions

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APPENDIX C: THE SURVEY RESULTS

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APPENDIXC: THE SURVEY RESULTS

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APPENDIX C: THE SURVEY RESULTS

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APPENDIX C: THE SURVEY RESULTS