Tips

Grammar Tips

Scribes Board Member Ann Taylor Schwing spends countless hours and energy writing the Scribes Tips. Thank you, Ann!

March 27, 2018

Grammar Tip No. 127: Whose Grammar?

Many cases speak of construing a statute or contract according to the ordinary rules of grammar, simple grammar, usual grammar rules, and the like. If the judge, parties, attorneys, witnesses and jurors all have approximately the same level of education, then it is reasonable to speak of ordinary rules of grammar. If one party or one juror only graduated from the sixth grade, however, what is ordinary for that individual may be markedly different from what is ordinary for a college-educated person. Similarly, what is ordinary for a native-speaking French or Chinese person will differ greatly from what is ordinary for someone educated in the United States in an English-speaking family. Although the issue rarely arises in published opinions, it offers an argument for use of a more strict or more lenient construction and a harder or simpler use of words and sentence construction in a factually-appropriate case.


Some states follow an eighth-grade grammar test for construing the legislative intent behind a penal provision. Kent v. State, 483 S.W.3d 557, 560 (Tex.Crim.App.2016); Jourdan v. State, 428 S.W.3d 86, 96 (Tex.Crim.App.2014); Stuhler v. State, 218 S.W.3d 706, 718 (Tex.Crim.App. 2007). 

March 13, 2018

Grammar Tip No. 126: Semi-colons

A browse through cases using the term "semi-colon" reveals the following collection of interesting and sometimes discordant points:

  • Bill Call Ford, Inc. v. Ford Motor Co., 830 F. Supp. 1053, 1057 n.2 (N.D. Ohio 1993):

 

The court notes that this is not a preferred method of writing disjunctively. If a writer uses a conjunction such as "or", only a comma need be inserted. If the writer wishes to dispense with the conjunction, a semi-colon is inserted between the independent phrases. See W. Strunk & E.B. White, Elements of Style 5-6 (3d. ed. 1979). Despite some problems with style, however, the court believes it cannot ignore the obvious intent of the use of both the disjunctive conjunction "or" and the use of a semi-colon. They are a veritable declaration of independent clauses.

  • HIS Company, Inc. v. Stover, 202 F. Supp. 3d 685, 693-94 (S.D. Tex. 2016):

In this case, there are three disjunctive "ors" and five semi-colons employed in the definition of misappropriation. This construction indicates that there are multiple, equal paths to liability under the statute. See, e.g., Elgin Nursing & Rehab. Ctr., 718 F.3d at 494 ("The punctuation between the clauses, a semicolon, tends to suggest related but separate ideas and stands for `or,' not `and.' Clauses separated by a semicolon are presumed to be independent clauses.") (citation and internal quotation marks omitted); United States v. Reece, CRIM. 12-00146, 2013 WL 3865067, at *6 (W.D.La. July 24, 2013) (Noting that a series of three numbered paragraphs, where the first ends with a semi-colon and the second ends with a semi-colon followed by the word "or," "ordinarily suggest[s] that the three paragraphs are equal and that satisfaction of any one of the three paragraphs would satisfy the definition of the term...."). This conclusion is further supported by the fact that every paragraph nested within the definition of "misappropriation" begins with a lower case word. See, e.g., Tolbert v. Nat'l Union Fire Ins. Co. of Pittsburgh, 3:08-CV-1112-N, 2009 WL 9072606, at *4 (N.D.Tex. June 24, 2009), aff'd sub nom. Tolbert ex rel. Tolbert v. Nat'l Union Fire Ins. Co. of Pittsburgh, 657 F.3d 262 (5th Cir.2011) (noting that paragraphs beginning with lower case words indicate that the paragraphs are intended to be part of a single series connected by conjunction).

  • J & J Construction Co. v. Bricklayers & Allied Craftsmen, 664 N.W.2d 728, 742 . 7 (Mich. 2003) (Young, J., concurring):

 

The presentation of the Petition Clause as one separate from the clauses concerning freedom of speech in the First Amendment alerts us textually that the purpose and intent of the Petition Clause must be distinct from its sibling clauses. Higginson, A short history of the right to petition government for the redress of grievances, 96 Yale L. J. 142, 155-156 (1986). Further, I note that whereas the Free Speech Clause and the Free Press Clause are separated by a comma, both are separated from the Petition Clause by a semi-colon. See Kesavan & Paulsen, Is West Virginia constitutional?, 90 Cal. L. R. 291, 334-352 (2002) (discussing, inter alia, the interpretation of the sixty-five semi-colons contained in the original constitution, particularly the punctuation of U.S. Const., art. IV, § 3 concerning the creation of new states).

February 27, 2018

Grammar Tip No. 125: Last Antecedent

One grammar rule often applied in the courts is the last-antecedent rule to resolve an apparent ambiguity. The rule states that qualifying or modifying words and phrases refer to the last antecedent. State v. Bunker, 169 Wash.2d 571, 238 P.3d 487 (2010); Northwest Wholesale Stationers v. McCormack, 96 Or. App. 299, 772 P.2d 1360 (1989). The last antecedent rule is applied to limit modifying only the noun or phrase that it immediately follows. Lockhart v. United States, 136 U.S. 958, 962 (2016); United States v. Hayes, 555 U.S. 415 (2009); State v. Bunker, 169 Wash. 2s 571, 238 P.3d 487 (2010). The rule of the last antecedent "'is not an absolute and can assuredly be overcome by other indicia of meaning.'" Lockhart v. United States, 136 U.S. 958, 963 (2016), quoting Barnhart v. Thomas540 U.S. 20, 26 (2003).

 

See generally Kimble, The Doctrine of the Last Antecedent, the Example in Barnhart, and Why Both Are Weak, Judicature 21 (2015); LeClercq, Doctrine of the Last Antecedent: The Mystifying Morass of Ambiguous Modifiers, 2 J. Legal Writing Inst. 81 (1996); Ross, A Rule of Last Resort: A History of the Doctrine of the Last Antecedent in the United States Supreme Court (2015).

February 13, 2018

Grammar Tip No. 124: Grammar Checkers

Many word-processing programs include a grammar checker that can be toggled on and off as desired. A variety of grammar checkers are also available as independent products. Can they catch some mistakes or quasi-mistakes? Yes, of course. But they also catch discretionary wording that may have been deliberate and call it jargon, passive voice, redundancy, and so on. A timid writer may feel compelled to rewrite the passages, perhaps making them worse. A good, experienced writer may feel no compulsion but still will look over the passages enough to decide to ignore the grammar checker.

 

Good writers typically incorporate a play on words, a clarity of thought, a memorable explanation of relationships or circumstances, and other similar passages. Their briefs are remembered for these qualities, all of which may involve unusual words or writing structure. Nothing should be done to discourage writing that is deliberately superior.

So there is no perfect answer. One writer may be so weak that the grammar checker is necessary to catch basic flaws while good writers may bypass the grammar checker in favor of their own best judgment.

 

See generally https://andreadallover.com/2012/02/27/the-problem-with-computer-grammar-checkers/https://www.servicescape.com/blog/the-dangers-of-relying-on-spell-check-and-grammar-check.

January 30, 2018

Grammar Tip No. 123: Capitalization

The first word in each sentence should be capitalized, as should names and proper nouns. Capitalization is often the author's choice unless there is another reason to capitalize or use lower case. Examples include the seasons of the year, and in these instances decide whether to capitalize and then be consistent in the document.

Do not ever capitalize (even if you see it capitalized often)

  • biblical

  • congressional

  • constitutional

  • statewide

  • points of the compass

  • a.m. or p.m.

 

The most important point: be consistent in following a coherent rule that you can explain if questioned. For example, when referring to racial distinctions, should black and white be capitalized? One, both or neither?  

 

See, e.g., https://www.cjr.org/analysis/language_corner_1.phphttps://radicalcopyeditor.com/2016/09/21/black-with-a-capital-b/http://www.paypercontent.net/the-4-basic-rules-to-proper-capitalization.

 

See generally  http://www.grammarbook.com/punctuation/capital.asphttps://owl.english.purdue.edu/engagement/2/1/42/https://www.grammarly.com/blog/capitalization-rules/.

January 16, 2018

Grammar Tip No. 122: Confusing Word Pairs #4

  • Allusion and illusion
  • Censor, censure, and sensor

  • Imply and infer

  • Obstacle and impediment

  • Prescribe and proscribe

  • Tortuous and torturous (and what about tortious?)

 

Here are examples with definitions and quizzes to test your recognition and use of word pairs:

 

One Scribes member argued that confusing word pairs could be omitted because judges and lawyers should know simple words and do not make mistakes in using them. Perhaps true in a general sense, the reality is that these errors continue, especially in documents that receive little proofing or review, like letters and many briefs. These mistakes detract from the communication and diminish the recipient's opinion of the author.

January 02, 2018

Grammar Tip No. 121: Resources for Legal Writers

The Internet provides a variety of resources for lawyers and others who write about legal issues. Sample these electronic materials, and bookmark the ones that appear most likely to assist you in the future.

 

There are also excellent books and many additional sources on the Internet. Put one in your car for the odd waiting period, another wherever you are likely to pick it up and read a few pages. There is always more to learn.

December 19, 2017

Grammar Tip No. 120: Platitudes

A platitude is an empty statement that has been made so often that it has lost the ability to be interesting or meaningful. A platitude may fill the silence that occurs before the brains of the participants begin to function. Other words for "platitude" are banality, bromide, inanity, and cliché.

 

You can find platitudes that are dangerous to a clinical practice at https://thenakedphysio.com/2017/01/14/platitudes-at-your-peril/, ten platitudes that will ruin a counseling session at http://blog.counselinginsite.com/blog/10-platitudes-that-will-ruin-a-counseling-session, most annoying platitudes at https://www.quora.com/What-are-some-best-most-annoying-platitudes-that-you-have-read-or-heard-or-even-made-up-yourself, and a giant list of platitudes at http://www.city-data.com/blogs/blog39078-giant-list-platitudes.html.

December 05, 2017

Grammar Tip No. 119: Changes in Grammar Rules

Grammar rules are no more frozen in time than other rules. Instead, there are grammar rules in transition at any point in time with the change fought by the older generation and accepted or even welcomed by the younger generation. Oxford Dictionaries identifies the following seven grammar "myths":

  1. You can't end a sentence with a preposition.

  2. You can't start a sentence with a conjunction.

  3. Double negatives are always ungrammatical.

  4. Splitting infinitives is a mistake.

  5. You can't start a sentence with hopefully.

  6. The passive voice should not be used.

  7. You cannot use whose to refer to things.

 

https://blog.oxforddictionaries.com/2015/03/7-grammar-myths-you-learned-in-school/

A grammar rule does not change overnight. Consider the nature of your readers before discarding a rule/myth entirely as a soon-to-retire judge or patriarch may still hold to the rule while a younger audience may not.

November 21, 2017

Grammar Tip No. 118:  Numbers

Grammar mistakes arise when people misuse numbers and numerals or make other misuse of numbers and related words. The following rules apply absent good cause to vary from the rule.

  • Fewer is used when the things can be counted, and less is used to mean a smaller amount of something. Thus, the school served fewer bowls of ice cream, each with less ice cream than in prior years.

  • Greater and more are used similarly.

  • Numbers from 1 through 9 should be written out in words; higher numbers should be expressed in numerals. A passage with many numbers above and below 10 is usually better written all in numerals.

  • Numbers stated in a single word like elevenfortysixty and others may be spelled out or expressed in numerals as best fits the passage.

  • Never start a sentence with a numeral.

  • Be consistent and logical in using numbers in text. For example, don't use "%" and "percent" interchangeably.

  • It is not required by statute or regulation to write out a number and follow immediately with the numeral in parenthesis as in fifteen (15).

November 07, 2017

Grammar Tip No. 117:  Confusing Word Pairs #3

Still more troublesome word pairs include the following.

  • Complement and compliment: two or more things complement each other when they go well together (the sparkling wine was especially selected to complement the dessert); a person compliments another by saying positive things (your new haircut shows off your face to perfection).

  • Between and among: When two things, circumstances, or groups are compared, we speak of the relationship or similarity between them. When the number is more than two or is indefinite, it is the relationship or similarity among them. There were differences of opinion between the lead attorney and her assistant. Strong disagreements developed among the attorneys, paralegals and expert witnesses on the prosecution. Some disagree on this point, including Bryan Garner, in his Garner's Modern American Usage (3d ed. 2011).

  • Eminent and imminent: An eminent person is successful, famous, prominent or otherwise notable in a positive way. Something imminent is or seems just about to happen.

  • Advice and advise: Advice is a noun meaning a recommendation or opinion provided to guide action by the recipient. Advise is a verb meaning to give advice, to caution, to warn. Confusion between the two is as common as it is unfortunate.

  • Militate and mitigate: Militate means to add impact or intensity to something; the word is often used with "against." Mitigate means to make easier, to make less bad, to soften, or to moderate.

  • Stationary and stationery: Stationary is is an adjective referring to the the character of something that is not moving. Stationery, a noun, is the papers, envelopes, and other elements used in communicating in writing with others.

Here are quizzes to test your recognition and use of word pairs. http://businesswriting.com/tests/wordpairs.htmlhttp://www.grammar-quizzes.com/conf-diagnostic.htmlhttps://www.englishgrammar.org/confusing-pairs-exercise/https://www.google.com/?gws_rd=ssl#q=word+pairs+exercises&spf=1498086067722.  

 

These word pairs and others are troublesome because the errors continue to appear in formal legal writing. Those who attended high school in the 1960s and 1970s had these words drilled into them. They are now the judges and senior attorneys who make judgments about younger attorneys. That reality argues for learning proper word usage if being correct is not enough incentive.

October 24, 2017

Grammar Tip No. 116:  Unnecessary Punctuation

Except for quotation marks and apostrophes used in quotations and the dots of an ellipsis with or without a period, quotation marks are not strengthened by repetition.  The excitement of a sentence is not enhanced by adding extra exclamation marks.  Double-semicolons or double colons reflect a typo, not extra meaning.  Extra dots in an ellipsis create confusion and sometimes clear error. 

 

Be spare in using punctuation as a general rule.  Delete rather than add when in doubt.  For example, http://www.angelfire.com/mi2/theteach/Proof/Conventions/C5AvoidUnnecPunct.html urges the reader to "Avoid" unnecessary punctuation and formatting!!!!!  See generally https://www.pinterest.com/pin/454019206157679188/.

October 10, 2017

Grammar Tip No. 115:  Redundancies

This Tip was suggested by Robert Badner.  Redundancies are needless repetitious words, phrases, sentences, paragraphs or ideas.  They are often called pleonasms.

  • Actual facts, true facts, actual experience

  • Advance forward, advance planning, advance warning

  • Advice and guidance

  • Careful scrutiny

  • Cease and desist

  • Circle around, completely surround, surrounded on all sides

  • Depreciate in value, appreciate in value

  • Desirable benefits

  • Each and every

  • Eradicate completely

  • Final conclusion, final outcome

  • First and foremost

  • Future recurrence, past history, past memories, past experience

  • General public

  • Harmful injuries

  • Historic milestone

  • Integrate together, join together

  • Interdependent on each other, interdependent on one other

  • Knowledgeable experts, trained experts

  • Live audience, live witness

  • Major breakthrough, major feat, major victory

  • Meet with each other

  • Mutually interdependent

  • New construction, new invention

  • Pick and choose

  • The reason is because, reason why

  • Suddenly exploded, unexpected surprise, unexpected emergency, unintentional mistake

  • Very unique

  • Written down

 

Select your words carefully.  When proofreading, look for words that may be fine individually but are redundant in combination.  The foregoing examples only scratch the possible redundancies.

September 26, 2017

Grammar Tip No. 114:  Contractions

In less than 40 years, the norm has changed from forbidding any use of contractions in legal documents to permitting them unless they are too informal in context.  A contraction is the combination of two words by deletion of one or more letters and the addition of an apostrophe.  Contractions often involve verbs as one or both of the combined words.

Lists of contractions appear in http://grammar.wikia.com/wiki/List_of_contractions;

http://www.sjsu.edu/writingcenter/docs/Contractions.pdf; and

http://www.enchantedlearning.com/grammar/contractions/list.shtml.

 

Although contractions sometimes appear in formal documents, it is important to use them wisely.  Don't switch back and forth, using contractions and not using them, without some clear logic.  Make a reasoned decision before starting drafting whether to use contractions or not in the document and then stick with that decision.

September 12, 2017

Grammar Tip No. 113:  Confusing Word Pairs #2

More troublesome word pairs include the following.

  • Advice and advise: Advice is the noun; advise is the verb.  It is correct to say that a person gives advice and advises a client.

  • Affect and effect: Affect is usually a verb; effect is usually a noun.  Here is an animated explanation:  https://www.youtube.com/watch?v=ahbRqcKz8SU

  • Discreet and discrete: A person is discreet when being circumspect in action and speech, while discrete means having unconnected distinct parts.

  • Farther and further: Focus on whether the distance is tangible.  Farther is used for physical distances such as 30-feet farther, a mile farther.  Further speaks to a figurative or intangible distance, such as further along in tax-return preparation.

  • Immigrate and emigrate: Focus on the direction of migration.  To immigrate is to come into a country planning to live permanently.  To emigrate is to leave a country to live elsewhere. 

  • Imply and infer: To imply means to hint or suggest; to infer means to make a guess or to assume.  Here is a video explanation: https://www.youtube.com/watch?v=tz4y4T3kBKc.

 

Here are quizzes to test your recognition and use of word pairs.  In real life, however, you often enjoy the ability to say the idea differently and avoid guessing when you do not know.  http://www.grammar-quizzes.com/conf-diagnostic.html;https://www.englishgrammar.org/confusing-pairs-exercise/http://businesswriting.com/tests/wordpairs.htmlhttps://www.thoughtco.com/commonly-confused-word-pairs-1688338https://www.paperrater.com/grammar/confused_words/index.

August 29, 2017

Grammar Tip No. 112:  Punctuation as a Basis for Interpretation 

Punctuation is often used as a basis for interpreting a contract, settlement agreement, or other document.  This fact alone justifies the expenditure of client funds in proofreading and double-checking the contents of documents. 

 

In Plymouth Mut. L. Ins. Co. v. Illinois Mid-Continent Life Ins. Co., 378 F.2d 389, 390 (3d Cir. 1967), the parties, Plymouth and National, had agreed to send "an impartial professional insurance adjuster (Irving Javer, of the Norman Reitman & Co., Rockefeller Plaza, New York City, New York, or if he is not available another impartial professional insurance adjuster mutually satisfactory to Plymouth and National) to Boston to inspect and study all of the books ...."

 

The merits turned on interpretation of the settlement agreement, specifically, the words "of the Norman Reitman & Co."  Javer had changed employment, and Plymouth argued these were merely words of description, identifying Javer, rather than a limitation on his acceptability as a neutral adjuster.  The court held, based on several rationales, that "the words 'of Norman Reitman & Co.' are set off by commas, inappropriate punctuation if the words were intended to be a limitation rather than description."  Id. at 392.

 

Even the lowly comma can make the difference in a case, when used consistently and in conformity with commonly applied rules of grammar.  Recognized grammar treatises might be offered in support the arguments.

August 15, 2017

Grammar Tip No. 111:  Excited Punctuation Marks

The exclamation point is a punctuation mark that should be used very rarely in legal writing.

  • In George Pharis Chevrolet, Inc. v. Polk, 661 S.W.2d 314 (Tex. Ct. App. 1983), the jury asked: "Is the entire document (plaintiff's exhibit two) evidence?" The trial court responded, "The answer to the first question is yes!". The appellate court disapproved of the trial court's punctuation. The appellant complains that the exclamation point was an improper comment on the weight of the evidence. At the motion for new trial hearing, the appellant offered the affidavits of three jurors indicating that the judge's answer told them that plaintiff's exhibit two was an important piece of evidence for them to consider.... The exclamation point should not have been used and such use should be avoided in the future. Nevertheless, its use was not error or, at least, not reversible error."

  • In Campuzano-Burgos v. Midland Credit Management, 550 F.3d 294, 300 (3d Cir. 2008), the court concluded that "the least sophisticated debtor would believe he received a personal letter from the named officers instead of a notice from a company" in part because "the notices do not appear to be letters from a corporate executive to an individual. Their font does not comport with that found in a routine business letter. The frequent use of capital letters, exclamation points, and boldfaced type, as well as the employment of various other items-such as indented text, bar-codes, a toll-free telephone number, lines, boxes, and perforation-do not fit the format to be expected in a routine commercial communication."

  • The court in In re Marriage of Sykes, 231 Ill. App. 3d 940, 596 N.E.2d 1226 (1992), observed: "Repeated use of exclamation points at the end of sentences and use of terms such as 'ridiculous' and 'ludicrous' to describe Randy's allegations in the trial court and his arguments on appeal are not appropriate for inclusion in an appellate brief."

July 28, 2017

Grammar Tip No. 110: Colons After Prepositions

Never use a colon after a preposition.  Common prepositions include to, of, with, at, by, for, from, among, around, through, between, after, in, within, into, upon, under, above. Colons after prepositions break the flow of the sentence.

 

Similarly, do not use a colon after "such as" or other words or phrases that denote a list.

July 14, 2017

Grammar Tip No. 109: Punctuation After Colons

One often sees a colon placed after the word that.  Although colons are routinely used to introduce a list, no colon is proper when the list is part of the flow of the sentence,  For example,

The law school offered special classes in copyright, trademark, and related subjects.

The law school's special classes were in copyright, trademark, and related subjects.

The law school's special classes were: copyright, trademark, and related subjects.

The third example is simply wrong for several reasons.  A colon is never used following any form of the verb to be.  The colon in this instance would cause the reader to pause when there should be no pause in the sentence.

June 30, 2017

Grammar Tip No. 108:  The Securities and Exchange Commission

The SEC issued A Plain English Handbook in 1998. This excellent book provides clear explanations and examples of the active and passive voice, use of personal pronouns, ways to avoid abstractions and superfluous words, writing in the positive rather than the negative, use of short sentences, keeping the subject, verb and object close together, and parallel construction. These grammar and writing explanations and examples make it easy to see how one approach is better than the other.

 

A Plain English Handbook doesn't stop with grammar and writing guidance. It also offers directions on document design, with helpful advice in the following areas:

 

·       the design process

·       the hierarchy of the document

·       typeface options

·       ways to emphasize portions of the text

·       layout and spacing between lines

·       use of right justification or ragged right

·       use of graphics.  

 

Whether this section of the book is used for every project is irrelevant; understanding these points leads to better decisions on all projects.

June 16, 2017

Grammar Tip No. 107:  North Dakota Supreme Court Tips

The North Dakota Supreme Court provides a set of general appellate practice tips.  http://www.ndcourts.gov/Court/Filing/Tips.htm  This engaging and comprehensive set of tips includes some that are peculiarly relevant to North Dakota but many that are broadly relevant to many states and courts.  Some excellent writing and grammar tips include the following:

  • Simplify your argument without making it simplistic.

  • You serve your client by maintaining your own credibility.

  • Omitting key facts destroys your credibility when the other side points them out.

  • Be a resource to the Court to help it understand the law and the facts.

  • Drop the hyperbole!!!

  • Not every lawyer excess is justified by the mantra of zealous representation. See Jacobson v. Garaas, 2002 ND 181, ¶ 23, 652 N.W.2d 918 (2002), cert. denied, 539 U.S. 928 (2003).

  • Don't type the Statement of Issues in all capital letters. Sentences in all capital letters are hard to read. Use normal capitalization.

  • The possessive "its" has no apostrophe, just as there is no apostrophe in "his," "hers," "theirs," "yours," and "ours." "It's," with the apostrophe, means "it is." "It's" can be used only when "it is" could be substituted.

  • "Always use your computer's spell check, and never trust it." -Steve Wilbers, Minneapolis Star Tribune

  • "Error" is a noun. "Err" is a verb. A party errs by saying "The trial court did not error . . . ."

  • "Time period" is redundant.

  • Proofread. Then proofread again. 

June 02, 2017

Grammar Tip No. 106:   Confusing Word Pairs

Here are some word pairs that cause confusion, some of which were suggested in an exchange with Bradley Scott Shannon, Professor of Law at Florida Coastal School of Law:

  • "forego" and "forgo (forego means to go before, to precede, while forgo means to do without, give up, waive or relinquish willingly)

  • "forward" and "foreword" (forward means (1) ahead, to the front, onward, (2) an action typically performed with mail or emails, or (3) a football, basketball or other sports player on a team, while a foreword is a short introductory piece appearing early in a published work prepared by someone other than the author)

  • "principal" and "principle"  (principal refers to the head of a school, the amount of a loan, the main end rafter on a roof, while principle means a concept, rule or law)

  • "therefor" and "therefore" (therefor means for that, in return for that, for that purpose (often used in law), while therefore means consequently, hence, thus, for that reason, because of that, to that end)

  • "upmost" and "utmost" (upmost refers to the highest thing, another word for uppermost, while utmost means the greatest degree of something or the farthest away place)

 

The most important of these is principal/principle.  Mistakes here cause many readers to form very poor opinions about an author's education and attention to detail.

May 19, 2017

Grammar Tip No. 105: Interpret Based on Punctuation

"Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail ...." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 250, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), following Ewing v. Burnet, 36 U.S. 41, 53-54, 9 L.Ed. 624 (1837).  An argument based solely on punctuation is risky at best, even if correct under normal rules of punctuation.  On the other hand, an argument based on statutory purpose, grammar and common sense can sometimes be bolstered by the punctuation.

  • Barrett v. Van Pelt,  268 U.S. 85, 91, 45 S.Ct. 437, 69 L.Ed. 857 (1925) ("Punctuation is a minor, and not a controlling, element in interpretation, and courts will disregard the punctuation of a statute, or re-punctuate it, if need be, to give effect to what otherwise appears to be its purpose and true meaning.").

  • United States v. Shreveport Grain & El. Co., 287 U.S. 77, 82-83, 53 S.Ct. 42, 77 L.Ed. 175 (1932) ("Punctuation marks are no part of an act. To determine the intent of the law, the court, in construing a statute, will disregard the punctuation, or will repunctuate, if that be necessary, in order to arrive at the natural meaning of the words employed.").

  • Joy v. St. Louis, 138 U.S. 1, 32, 11 S.Ct. 243, 34 L.Ed. 843 (1891) ("This natural grammatical construction is strengthened by the punctuation -- a comma after the words 'party of the second part' and none after the words 'party of the third part,' which seems to separate the entire first clause from the second and its qualifying terms. I know that the matter of punctuation is never relied upon to defeat the obvious intent; but, when the meaning is doubtful, the punctuation is certainly a matter tending to throw light upon it.").

  • Mattison, Inc. v. W.F. Larson, Inc., 529 S.W.2d 271 (Tex. Civ. App. 1975) (" 'The words, not the punctuation, are the controlling guide in construing a contract. If the meaning of the words is clear the court will interpret a contract according to their meaning and without regard to the punctuation marks or the want of them. While punctuation may be resorted to in order to solve an ambiguity which it has not created, punctuation or the absence of punctuation will not of itself create ambiguity.' "), quoting Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 803 (1940).

  • Frankfort Publishing Co. v. Kentucky St. University Foundation, 834 S.W.2d 681, 682-83 (Ky. 1992) ("Punctuation alone is not a proper basis for ascertaining legislative intent.").

May 05, 2017

Grammar Tip No. 104: Interpret Based on Grammar Rules

Documents, statutes and regulations are routinely read and interpreted in accordance with rules of common grammar.  Courts assume that the authors intended to follow common grammar rules when writing the documents.  Thus, the subject of the sentence may be identified based on its agreement with the verb.  This general rule will not apply when other rules compel a different result.  As a result, make the grammar argument when it is available, but make any other arguments as well.

  • Flores-Figueroa v. United States, 556 U.S. 646, 650, 129 S.Ct. 1886, 173 L.Ed.2s 853 (2009) ("As a matter of ordinary English grammar, it seems natural to read the statute's word "knowingly" as applying to all the subsequently listed elements of the crime.").

  • Rexam Beverage Can Co. v. Bolger, 620 F.3d 718, 725 (7th Cir. 2010) ("Pursuant to the plain terms of Article 5(c), read in accordance with common grammar rules, Rexam was responsible for keeping the premises in good-not perfect-repair, and was responsible for any necessary structural changes as well.").

  • State v. Hohenwald, 815 N.W.2d 823, 829 (Minn. 2012) ("We interpret court rules in accordance with the rules of grammar and give words and phrases their common and approved usage.").

  • Rummel v. Lexington Ins. Co., 123 N.M. 752, 945 P.2d 970, 976 (1997) ("The traditional rules of punctuation, syntax, and grammar may also help clarify a contractual ambiguity.").

April 21, 2017

Grammar Tip No. 103: Continual and Continuous

Continual and continuous are not synonyms and cannot be used interchangeably without introducing a risk of factual errors.  The word continual means occurring frequently but with some interruptions.  Continuous means ceaselessly or without interruption.

 

Published cases muddy the water, making it even more important to be careful using these terms:

 

  • Rose v. Rubenstein, 693 S.W.2d 580, 582 (Tex.App. 1985) ("One of the definitions of 'continuous' is 'uninterrupted extension in time or sequence: continuing without intermission or recurring regularly after minute interruptions ... see CONTINUAL.' Webster's Third International Dictionary, Unabridged 493-494 (1967). Under the word 'continual' is found the following statement: 'CONTINUAL is somewhat more common than CONTINUOUS in describing intermittent action, but both words are well-established and satisfactory in this sense.' Id. at 493.")

  • Fowler v. United Equitable Ins. Co., 200 Kan. 632, 635, 438 P.2d 46, 49 (1968) (There is a "fine line of distinction between the terms 'continually confined' and 'continuously confined.' As defined in Webster's Third New International Dictionary, Unabridged (1967), 'continual' means 'proceeding without stopping, interruption, or intermission: recurring in steady and rapid succession: repeated at intervals with brief perhaps regular intermissions in time.' 'Continually' is defined as not only 'unceasingly: continuously in time: without intermission' but means 'in regular or repeated succession: very often.' On the other hand, the word 'continuous' is defined as 'characterized by uninterrupted extension in time or sequence: continuing without intermission or recurring regularly after minute interruptions.' 'Continual' implies 'a close prolonged succession or recurrence,' whereas 'continuous' implies 'an uninterrupted flow or spatial extension.' (Webster's Seventh New Collegiate Dictionary [1963].) It would appear from these definitions that the term 'continually confined' is somewhat more flexible in its meaning and application that 'continuously confined,' and is not necessarily restricted to confinement that is unceasing and uninterrupted."). 

April 07, 2017

Grammar Tip No. 102: Anywhere in the World

Here is an error that is easy to avoid once it is understood:

Carver produced more cranberries in the 1940s than anywhere in the world.

Carver is itself in the world.  Carver could not have produced more cranberries than anywhere in the world unless Carver were outside the world.  The solution to this conundrum is the word else

 

Carver produced more cranberries in the 1940s than anywhere else in the world.

 

Some additional materials are available at:

March 24, 2017

Grammar Tip No. 101: Other

An error that is easy to avoid once understood is illustrated by the following sentence:

This contracts treatise is better than any treatise on the market.

 

Presumably the praised contract treatise is a treatise being sold on the market.  If not, the sentence is acceptable but could be improved by adding "out-of-print."  If the treatise is being sold, then the solution is to add other to recognize that the contracts treatise is also on the market.

This contracts treatise is better than any other treatise on the market.

March 10, 2017

Grammar Tip No. 100: Nonwords

Many nonwords exist in part or all of the US, used with more or less frequency.  Absent a good reason to use a nonword, it's better to avoid it unless it appears in a quote.  Here is a sampling of nonwords:

 

ain't                                         incentivize

a lot                                         indeterminant

alright                                     irregardless

conversate                              orientate

guesstimate                            unequivocably

impactful                                 

 

See also walkerroyce.com/blog/observation/nonwords-using-words-that-are-not-words/.

February 24, 2017

Grammar Tip No. 99: Writing Numbers

The oft-stated rule for writing numbers is that numbers one through ten are written out while numbers above ten remain in numerals.  Like most rules, common sense controls.  A brief that addresses a dispute over eight or twelve racehorses should use all numerals or all words.  Tables should use numerals.

February 10, 2017

Grammar Tip No. 98: Ambiguous Antecedents

Bad or uncertain antecedents often appear at the beginning of sentences.  The writer had a clear picture of the intended antecedent when writing, but it was not clearly stated or it became unclear during the editing process.  A sentence starting with this as the subject of the sentence is very likely to present the problem of an uncertain antecedent.

  • This is because

  • This means

  • There was

 

The word this can refer to any number of facts, theories, situations or circumstances.  The word there could refer to places or concepts or situations.  Any hint in the back of the mind that a reader could possibly respond with "this what" or "there where" or the like is a signal that additional clarity is needed.

January 27, 2017

Grammar Tip No. 97: What Is This Tip About, Anyway?

What is this Tip about, anyway?  Grammar rules, that's what "it" is about.  Grammar rules matter because the writer is trying to communicate with the reader.  If either one ignores relevant grammar rules, the communication can easily go awry.  The more complicated the ideas to be conveyed, the more important it is to follow grammar rules and any conventions that are familiar to the reader.

Don't distract or annoy the reader with new rules that are acceptable today but were not acceptable years ago when the anticipated reader (often, the judge) learned grammar.  Millions were taught never to use contractions in formal writing, for example.  Many have abandoned this rule today, but the judge on your case is likely to remember the rule.  Virtually no one is offended by the absence of contractions, so briefs written without contractions will be more readable to more judges.

January 13, 2017

Grammar Tip No. 96: Subject-Verb Agreement

Heavily edited documents are likely to develop errors in subject-verb agreement during the editing process.  The rule is easier than many grammar rules, requiring that the subject and verb in a sentence agree in number.  Sentences that begin without error can develop errors as singular words are made plural or vice versa.  Thus, extra attention should focus on this error when preparing the final document.

 

Many quizzes are available for those who wish to enhance their skill in subject-verb agreement.  See, e.g., this website and this one.

December 30, 2016

Grammar Tip No. 95: Other Tips

English speaking and writing are such fundamental parts of our lives that there are a variety of tips available.  Each set of tips reflects the experiences and attitudes of the author as well as the grammar and usage rules at issue.  Here are some tips by other authors:

December 16, 2016

Grammar Tip No. 94: Grammar Resources

The Internet continues to provide valuable grammar materials.

December 02, 2016

Grammar Tip No. 93: Confusing Combos

Many grammar errors arise from confusion as to two or three similar words, each individually correct but used in the wrong context.  Many of these were taught in middle school or junior high, so the mistake is especially glaring.  If you see yourself in these errors, concentrate to learn proper usage for several each week until they no longer appear in your writing.

  • Your and you're (your is the possessive of youyou're is the contraction for you are)

  • Its and it's (its is the possessive of itit's is the contraction for it is or it has)

  • Whose and who's (whose is the possessive of whowho's is the contraction for who is or who has)

  • There, their and they're (there is a place or something that exists; their is the possessive of theythey're is the contraction for they are)

  • Then and than (then reflects timing or causation; than introduces a comparison)

 

www.grammar-monster.com (Identifying these as errors "that will make you look really stupid").  

November 18, 2016

Grammar Tip No. 92: Etc. and E.g.

E.g. at the start of a list means that the list is incomplete but illustrative.  Appearing at the end of the list, etc. means the same thing.  Both reflect that the author knows of other examples of the listed items.  As a result, a judge can fairly lean down and ask for more examples of the kind of case appearing in a brief following e.g. or preceding etc.  

 

The court in In re Lamictal Direct Purchaser Antitrust Litigation, 18 F. Supp. 3d 560, 568 (D.N.J. 2014), vacated & remanded on other grounds in King Drug Co. of Florence, Inc. v. SmithKline Beecham Corp., 791 F.3d 388 (3d Cir. 2015), observed that the Supreme Court's use of e.g. in a different case "suggests that this scenario is nothing more than an example of a reverse payment settlement and there are others."

November 04, 2016

Grammar Tip No. 91: Good Grammar Always

All attorneys, especially young attorneys, should use good grammar at all times.  Good grammar in letters to clients or opposing counsel and in briefs is essential, of course, but a careless email with grammar mistakes may be forwarded widely and do harm over weeks or months.  People often remember the mistake for a long time and may dredge it up at unfortunate times in the future. Moreover, careless grammar in one circumstance can make it easier permission to be careless in other instances.

October 21, 2016

Grammar Tip No. 90: Examples of Bad Grammer

Another collection of bad-grammar examples, both images and text.

October 07, 2016

Grammar Tip No. 89: And/Or 

Use of and/or in any writing adds possible confusion and lack of elegance. Legal writing requires a precision that makes the phrase wholly unsuitable.

  • Post & Co. v. Bitterman, Inc., 636 N.Y.S.2d 329, 219 App.Div.2d 214, 223 (1996), quoting In re Marriage of Lima, 265 Ill.App.3d 753, 757, 638 N.E.2d 1186, 1189 (1994): "The use of "and/or" has been roundly condemned as a 'deliberate amphibology, susceptible of more than one interpretation and * * * a purposefully ambiguous expression, useful in its self-evident equivocality.'"

  • Adams & Kaye, Revisiting the Ambiguity of "And" and "Or" in Legal Drafting, 80 St. John's Law Review 1166 (2007)

  • Kirk, Legal Drafting: The Ambiguity of "And" and "Or," 2 Texas Tech L.Rev. 235, 253 (1971).

  • http://www.slaw.ca/2011/07/27/grammar-legal-writing/  collecting many examples of grammarians recommending never to use the phrase.

September 27, 2016

Grammar Tip No. 88: If the Grammar Test Was Tough

The Internet provides a wide range of grammar tests. Test yourself in the privacy of your office or home to see how you do and whether you need a grammar refresher.

 

 

In a perfect world, those who have successfully completed college and law school should have little difficulty or concern with grammar. Unfortunately, it's not a perfect world. If you need help with grammar, there are many options.