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.

 

 

A few Internet searches can target your specific failing if you don't need a broad refresher.

September 09, 2016

Grammar Tip No. 87: Literally

Literally means actually. It's very rare for a person to be literally glued to his seat, for example, and virtually impossible for it to be raining cats and dogs.  The term literally has been used to add emphasis to the point that the term has lost any meaning and now communicates nothing.  The best step is not to use the term at all.

  

January 01, 2020

Grammar Tip No. 86: Proofreading

Proofreading is a discipline and an art.  Different skills are needed to proofread someone else's work as compared with one's own, both because someone else's material is new while one's own is familiar and because diplomacy may be needed depending on the quality of someone else's work.  In either case, look for any error or detraction from the quality of the writing.  Are there spelling problems, whether outright errors or use of different spellings of a word that has more than one approved spelling?  Are the tense and any changes in tense appropriate?  Are numbers consistent?  When the writing promises four reasons, there should be four reasons.

Guidance on proofreading is available from multiple sources, including:

 

Proofreaders have developed symbols to use in marking up a document while proofreading.  E.g., http://www.chicagomanualofstyle.org/tools_proof.htmlhttp://www.ccc.commnet.edu/writing/symbols.htm.  Use of the symbols is helpful principally when others in the process are familiar with the symbols.

 

Proofreading is hard work.  Instead of skimming the document for content, the proofreader is examining carefully for errors, misuse of words and punctuation, accuracy of the author's representations, and all other flaws that detract from the writing.  Here are some tests to challenge your assumptions. http://goodcontentcompany.com/more-proofreading-testshttp://www.subversivecopyeditor.com/blog/2013/03/wannabe-editors-can-you-pass-a-proofreading-test.html.  Finally, here is a top ten list of proofing mistakes: http://www.hotdocs.com/blog/top-ten-funniest-proofreading-mistakes

August 12, 2016

Grammar Tip No. 85: Parenthetical Information

Legal writing frequently weaves quotations from the record, other court decisions, and articles into the written product.  The rule is very clear that quoted material must reproduce the source exactly or state the nature of the variation, usually in a parenthetical.  Acceptable kinds of parenthetical explanations include

  • (abbreviations and grammar as in original)

  • (emphasis added)

  • (grammar in original)

  • (incorrect grammar and misspellings in original)

  • (random capitalization omitted)

 

The essential component of any quotation and accompanying parenthetical is accuracy.

July 01, 2016

Grammar Tip No. 82: Write It Another Way

It happens often enough that a writer will form a sentence and then wonder if it is correct.  Should the words or punctuation be this way or that way?  Is that "ing" word a gerund?  Wasn't there a rule about gerunds and apostrophes?  A writer in this situation can divert from the task at hand to research the relevant grammar or diction rules, possibly losing the train of thought for the writing. 

 

If the specific issue arises frequently, the writer needs to take the time to learn the troublesome rule so it does not pose a recurring problem.  At the moment, however, a writer who just can't remember a specific rule can form the sentence to avoid the issue.

 

The key for all good writing is to write intelligible, grammatical prose, and there are many ways to do it. There are a dozen or a hundred ways to say a thought, so select one that is persuasive and grammatical and discard the troublesome one. A writer who can't remember the rule for lay, lie, laid, lain, etc. can simply use another word that doesn't reveal that lack of memory. Don't randomly guess and hope to be right, but freely use alternative ways to set out the arguments that do not present problems.  

June 17, 2016

Grammar Tip No. 81: Smart and Dumb, Justified and Ragged

Many attorneys seem oblivious to smart and dumb apostrophes. Smart apostrophes curve toward the word, while dumb ones are straight up and down. Either one is fine when used in isolation, but a combination in a single document looks sloppy at best and is potentially dangerous. The danger is that someone can later argue that the portion of the document with one kind of apostrophe was written by a particular party, with consequences as to how that portion should be construed.

 

Documents typically get a mixture of smart and dumb apostrophes when they are created by cutting and pasting from other documents or when they pass through edits on multiple computers. Each computer is set with a default for smart or dumb; you can change the Word default if you wish under Tools. When you have a document with both kinds, do a search and replace (control-H) and replace each apostrophe with an apostrophe. All will then be in the style of your default.

 

At the same time, search and replace quote marks as they will also be in both smart and dumb form if the apostrophes are mixed.  Similarly, conform the document so the text is all right justified or all ragged right.  This variation poses the same danger as variations in apostrophes and quotes.

 

Doublecheck the document if the default uses smart apostrophes and quotes because the curve of the marks sometimes faces the wrong way.  Changing the justification may also trigger some undesired format change.  Neither of these checks should take much time.

June 03, 2016

Grammar Tip No. 80: Spelling

Correct spelling is always valued in legal writing.  The reader normally need not pause to wonder what word is intended when the word is correctly spelled.  As a general rule, a document that the reader can read easily, smoothly from opening premise to conclusion is more persuasive.  Outright spelling errors, especially when there is no likely way that they are typographical errors, are especially troubling because they may cause the reader to wonder about the education of the writer and the level of effort expended in preparing the document.

 

Spelling errors in names are not necessarily fatal.  Under the doctrine of idem sonans, a failure in absolute accuracy in spelling names in legal proceedings may be forgiven when the error does not result in an entirely different name and the misspelled name sounds the same to the attentive ear as the properly spelled name.  E.g., Corporate Financers, Inc. v. Voyageur Trading Co., 519 N.W.2d 238, 243 (Minn. App. 1994); State v. King, 272 Neb. 638, 644-45, 724 N.W.2d 80, 86 (2006) (rule applies in civil and criminal proceedings); State v. Wilson, 135 N.C. App. 504, 509, 521 S.E.2d 263, 266 (1999).


When the other side uses two spellings of a name before suit is filed, it may be better to include both names in the pleading and request that the other side state the correct name.  This form of pleading eliminates the risk of using the wrong name and shows the other side to be the one to spell incorrectly.

May 20, 2016

Grammar Tip No. 79:  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 to support the arguments.

May 06, 2016

Grammar Tip No. 78:  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, 317 (Tex. Ct. Appeals 1983), the jury asked: "Is the entire document (plaintiff's exhibit two) evidence?" The court answered, "The answer to the first question is yes!" The appellant complained that the exclamation point was an improper comment on the weight of the evidence, and 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 appellate court concluded, "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."

April 22, 2016

Grammar Tip No. 77:  Grammar Checkers

A variety of grammar checkers are available for purchase, included with word-processing programs, or free on the Internet. No doubt some are superior to others. Nevertheless, none can be relied upon entirely. A grammar checker may miss a mistake completely or may identify as a mistake language that is correct and even unusually pleasing. Just as spell checkers can introduce an error, so too can the grammar checker.

 

Here is information on problems that can arise:

 

 

Use the checkers to identify words and phrases that need another look. 

April 08, 2016

Grammar Tip No. 76: 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.

March 25, 2016

Grammar Tip No. 75:  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. Among its excellent writing and grammar tips are 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 hisherstheirsyours, and oursIt's, with the apostrophe, means it isIt'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. 

March 11, 2016

Grammar Tip No. 74:  Punctuation

Don't use any punctuation mark without a reason you can articulate to yourself and could explain to others if asked. There are good reasons for this rule.

 

Punctuation normally causes the reader to pause, whether reading aloud or silently. A writer is leading the reader by the hand through a complex thought to the desired end. Any pause gives the reader permission to get a cup of coffee, move on to the next paragraph, or otherwise fail to read the full sentence as a coherent whole. A pause in the wrong place can damage the meaning rather than enhance it.

 

Punctuation also commonly creates either a separation or a tighter linkage than the words would otherwise have. A period and semicolon are the most significant separating punctuation marks, while a hyphen is a linking mark. The remaining marks are all usually separating marks.

 

Wonderfully amusing examples of these rules are available in the following:

 

February 26, 2016

Grammar Tip No. 73: Do This; Don't Do That 

The Supreme Court of Ohio Commission on Professionalism has issued Professionalism DOs & DONTs: Legal Writing.

 

This three-page document offers a variety of good advice, including writing and grammar advice that can only reflect too many instances in which the advice was not followed:

 

  • Do state clearly what you are requesting in motions and briefs.

  • Do write in a professional and dignified manner.

  • Do proofread for spelling and grammar.

  • Do edit and redraft.

  • Do adhere to the applicable court's technical requirements and rules for submitting documents, such as, for example, any restrictions on fonts, margins, and document length.

  • Don't use jargon or confusing acronyms.

  • Don't overuse nominalizations, i.e., noun forms of verbs (e.g., indication instead of indicate).

  • Don't overuse the passive voice.

  • Don't misquote.

  • Don't plagiarize.

  • Don't lie.

 

Take this advice to heart. Few readers should need the last three warnings, but the remainder may speak to all of us on a particular day when we are rushed and tired. Enlist your paralegals and your secretary to spot these issues when you fail so you can fix them. Errors in the privacy of the law firm or chambers that are caught before the document is public create no open embarrassment.

February 12, 2016

Grammar Tip No. 72:  CUNY Legal Writing Center

The City University of New York (CUNY) School of Law provides an excellent legal-writing center online with multiple layers of information. http://www.law.cuny.edu/legal-writing/students.html. Among its offerings are separate sections for drafting court briefs, client letters, and case status memos, and there is an explanation of the different language that would be used writing a motion to the court as compared to the court's decision. Information on grammar and style is clearly offered, along with explanations and examples of the revision process. Finally, "Writing Resources on the Web" provides annotated links to numerous resources, including "After Deadline," a blog from The New York Times exploring style and grammar issues arising in articles. http://afterdeadline.blogs.nytimes.com/. The more we learn from the mistakes of others, the less likely we will make those mistakes ourselves.

January 29, 2016

Grammar Tip No. 71:  The Bluebook on Quotations

The Bluebook has significant information on subjects other than citation form. Perhaps the best is Rule 5, on how to present quotations. Clear explanations followed by illustrations cover each point.

 

One topic covered by Rule 5 is the proper use of ellipsis. The most common ellipsis error arises from the spacing of the ellipsis. The following format at a quotation's end is always wrong: "This sentence has a quotation error...."

 

If the sentence in the source ended with the word error, then there should be no ellipsis. If the sentence in the source continued, then there should be a space after the word error.

 

Given the number of publishers that aggressively close up ellipses in this situation when authors have structured the quotations correctly, it is not surprising that some writers are confused. The rule has not changed, however, and there is no circumstance in which the sentence above is ever correct.

January 15, 2016

Grammar Tip No. 70:  Itsy Bitsy its

There is no word its' in English.  The word it's is a contraction for it is. Its (no apostrophe) is the possessive form of the pronoun it. Confused writers may panic and stick in the apostrophe at the end of its because they believe some apostrophe is needed.  No apostrophe is ever needed in normal English usage at the end of its.

January 01, 2016

Scribes Grammar Tip No. 69:  Colons

A colon creates a distinct pause in a sentence.  There are two principal uses for a colon.  It is commonly used to introduce a quotation or a list.  A colon is also used in captions and headings, separating two related thoughts, and in Internet addresses, mathematical ratios, and times.

 

Colons are not used after the verb to be (is, are, were, etc.), after a preposition (to, with, among, etc.), or after a word that means, in effect, what follows is a list (includes, such as, etc.).

December 18, 2015

Scribes Grammar Tip No. 68:  Common Problems

The Securities and Exchange Commission Plain Writing Handbook at 17, https://www.sec.gov/pdf/handbook.pdf, identifies the following common problems the SEC encounters in disclosure documents:

 

* Long sentences
 

* Passive voice

 

* Weak verbs

 

* Superfluous words

 

* Legal and financial jargon

 

* Numerous defined terms

 

* Abstract words

 

* Unnecessary details

 

* Unreadable design and layout

 

Except for the last, these are common problems in legal documents of all sorts.  Attorneys need to train themselves not to make these writing and grammar errors.  The SEC offers solutions and suggestions for each problem with many before and after examples.

December 04, 2015

Scribes Grammar Tip No. 67:  Plain Writing

There has been a movement to plain writing in the federal government for many years, with greater or lesser success depending on the agency involved.  The Plain Writing Act of 2010 imposes the requirements on substantially all federal agencies. http://tinyurl.com/3mwzjwn  

 

At least the following agencies have had established programs for years (click on agency for more information):

 

 

Some agencies have developed training online programs available for anyone to use.  E.g.,

 

 

The U.S. Department of Justice has its own plain writing site.

 

November 20, 2015

Scribes Grammar Tip No. 66:  Never Use a Colon . . . .

Colons are increasingly misused and abused. There are many circumstances in which it is improper to use a colon. Never use a colon in the following circumstances:

 

  • After a sentence fragment
     

  • After such asto witi.e.e.g.for example, namely, including, and similar introductory words or phrases

 

  • After the conjunction that
     

  • Between a verb and its object or complement
     

  • Between a preposition and its object
     

  • At the end of a sentence
      

  • In writing military time

October 23, 2015

Scribes Grammar Tip No. 64:  Eliminating Unnecessary Words

Many English phrases that appear in legal documents are redundant. It is likely that each attorney who uses the redundant phrase does so either without thinking or believing that the redundancy is somehow required. Not so. Here are some examples of these pleonasms:

 

  • Cease and desist
     

  • Due and payable
     

  • Goods and chattels
     

  • Null and void
     

  • Sole and exclusive
     

  • Successors and assigns
     

  • Terms and conditions
     

  • True and correct

 

Many more examples appear in ordinary English:

 

  • Advance planning
     

  • Future prospects
     

  • Past experience
     

  • Unexpected surprise

 

These and many other examples are available with a search for "pleonasms."

October 09, 2015

Scribes Grammar Tip No. 63:  Periods, Commas and Quote Marks

An often-violated rule mandates that periods and commas always go inside the quotation marks. E.g., Purdue's Online Writing Lab, Grammarist, Slate, and Grammar Book.

September 25, 2015

Scribes Grammar Tip No. 62:  Diagramming Sentences

Many lawyers who were in high school in the 1960s or earlier learned the parts of speech and their relationships to each other by diagramming sentences. Here is an NPR piece on the subject with a complex example. http://tinyurl.com/oysshza. Here is an explanation from the University of Texas that proceeds from very simple sentences to more complex ones. http://tinyurl.com/qathh68

 

You will find many Internet sites explaining how and why to diagram sentences, with worksheets, video lessons, and interactive diagramming tools. There are even apps and games to download to computers and telephones.

 

Why would any adult do what even children need not do now? Diagramming sentences is an extraordinary way to learn the relationships of words in a sentence and to form better sentences. All the words must fit into the diagram, so the last few can't be swept under the bed and forgotten. Each diagram tests your knowledge and skill. 

 

Why not print a few worksheets or download a game so you have something to do on the Metro or waiting for the oil change to be finished? See how we struggled and learned in the olden days.

Please reload

September 11, 2015

Scribes Grammar Tip No. 61: No Colon After a Verb

A sentence should flow smoothly from subject to verb and on to its conclusion. A colon immediately after the verb interrupts the sentence for no purpose. See

http://punctuationmadesimple.org/colon.html.

  

The logic for this rule is the same as for the rule against colons after a preposition. The reader should proceed through the words of a sentence uninterrupted by extraneous punctuation. Pauses in reading are not inherently bad, but they should improve comprehension rather than diminish it.

 

Here are some websites on this and other colon errors:

 

http://english.stackexchange.com/questions/154256/the-interrupting-colon-ie-a-colon-after-a-verb

 

http://www.osbar.org/publications/bulletin/10apr/legalwriter.html

 

http://www.ics.uci.edu/~dramanan/teaching/ics139w_fall10/semicolons_colons.pdf

 

https://www.ius.edu/writing-center/files/colons.pdf

 

http://www.gcsu.edu/writingcenter/no.htm

August 28, 2015

Scribes Grammar Tip No. 60: No Colon After a Preposition

Prepositions are links used in sentences to provide relationships or directions. Few sentences are without one or more prepositions. Common ones are to, from, over, about, along, after, by, during, into, and through. For a list of 150 prepositions, check out the English Club.

 

Grammar rules are clear that a colon should not appear after a preposition even if the preposition introduces a list. 

 

http://englishplus.com/grammar/00000096.htm

 

http://www.kentlaw.edu/academics/lrw/grinker/LwtaColons.htm

 

http://www.grammarbook.com/punctuation/colons.asp

 

http://www.grammarly.com/handbook/punctuation/colon/5/misuse-of-colon/ 

 

Many other grammar authorities can be found declaring the same rule by searching for "colon after preposition" or similar search terms. Even if there were no rule, logic would require omission of the colon after a preposition because the colon causes the reader to pause. There is no reason to pause after a preposition, so the colon is a detriment in the sentence.

July 31, 2015

Scribes Grammar Tip No. 58:  The Question as to Whether

One recurring mystery is the frequent use of the phrasing "the question of whether" and "the question as to whether." This phrasing is unnecessarily wordy and serves no purpose. As explained in F.W. Fowler, Fowler's Modern English Usage 37 (Sir Ernest Gowers 2d ed. 1985):

 

As might be expected, those who put their trust in a phrase that is usually either vague or otiose are constantly betrayed by it into positive bad grammar . . . . The popular favourites: The question as to whether, The doubt as to whether, may almost be included among the ungrammatical developments, since the doubt or question demands an indirect question in simple apposition (The question whether, The doubt whether); in such forms as Doubts are expressed as to whether, the "as to" is not incorrect, but merely repulsive.

 

See State v. Heslop, 135 N.J. 318, 340, 639 A.2d 1100 (1994) (Clifford, J., dissenting) (quoting Fowler with approval).

July 17, 2015

Scribes Grammar Tip No. 57:  Less or Fewer

Use fewer when referring to individual or countable things {fewer than ten chairs} {fewer questions asked by judges}. Use less when referring to volume, quantity, or degree {less influence on the jurors}, mass or bulk nouns {less water in the glass}, or units of measure or time {less than three ounces} {less than five months}.

 

There is one exception: use less when count nouns are really being used as amounts instead of individual increments {he has less than one million dollars} {we have less than two minutes of rebuttal time}.

 

Sometimes it can be a close call whether something is a mass noun or a count noun. Take, for example, a percentage: should it be less than 10% of the shareholders voted orfewer than 10% of the shareholders voted? A percentage could be something counted or a collective mass noun like money. I prefer less than 10% of the shareholders because most percentages aren't whole numbers anyway, and less is less formal in tone than fewer.

 

One more point: it's redundant to say *a fewer number because the idea of number is included in the meaning of fewer (a smaller number) {*a fewer number of managers}. Say a smaller number when referring to numbers specifically; otherwise, prefer fewer (standing alone) {fewer managers}. That uses fewer words—and less space.

 

Countables take fewer {fewer people} {fewer delegates} {fewer documents}. But compare "fewer than six pennies in my pocket" with "less than six cents in my pocket." Pennies are distinct things, but six cents denotes an amount.

 

Noncountable mass nouns take less {less power} {less documentation} {less than 50 years ago} {less than $100 in his wallet} {less of a burden}.

 

Sources:

Garner's Modern American Usage 351, 507-08 (3d ed. 2009).

Garner's Dictionary of Legal Usage 359, 538 (3d ed. 2011).

The Chicago Manual of Style § 5.220, at 288 (16th ed. 2010).

The Redbook: A Manual on Legal Style § 12.3, at 277 (3d ed. 2013).

The Associated Press Stylebook and Briefing.

July 03, 2015

Scribes Grammar Tip No. 56:  Apostrophes in the Wrong Places

Apostrophes are getting more use than they should these days. In legal writing, newspapers, signs, and many other writings, there are often apostrophes where they do not belong.

 

Some examples include:

 

  • apostrophes to indicate importance: Careful, do not 'touch' the crystal miniatures.

  • apostrophes with plural short names: CF's for community foundations, CPA's

  • its'  Its' cannot ever possibly be correct. If you don't know whether to use its or it's, revise the sentence to avoid using either one.

  • non-possessive plural nouns, such as employee's onlyYou had 3 late's this monthChoose Your Word's WiselyFeatured Wine'sEvery Day is Senior's DayDeep Fried Oreo'sElk's Club.

 

Most of these and many more can be seen at http://www.apostropheabuse.com/

 

For more information and examples, see http://www.apostrophecatastrophes.com/;

http://www.badapostrophes.com/http://www.flickr.com/groups/apostrophes/pool/;

http://errantapostrophe.tumblr.com/

 

For sites with the right answers on apostrophes, see http://www.grammarbook.com/punctuation/apostro.asp; http://lilt.ilstu.edu/golson/punctuation/apostrophe.html and many more.

June 19, 2015

Scribes Grammar Tip No. 55:  Latin Legal Phrases

Many of our legal concepts are expressed in Latin as often as in English. Black's Law Dictionary and other similar resources provide an extended list of the Latin phrases and English translations.

 

When used in legal writing, Latin phrases are typically italicized. At a minimum, all should be presented in the same manner consistently with the possible exception of a Latin term that have become so deeply embedded in legal writing as to be the English term. Which Latin terms fall into that category varies through different legal communities and law schools.

 

Don't use Latin terms and phrases to appear scholarly. You will fail and the judge may use the opportunity to have a joke at your expense. In some circumstances, however, the Latin term or phrases is the natural and straightforward way to express the point.  Sometimes it is the only way to express the point.

 

Use of Latin in legal documents has been upheld when subject to constitutional challenge. Parris v. Cummins Power South, 1D13-0123 (Fla. Aug. 13, 2013).

 

A variety of resources are available to assist in understanding and using legal Latin:  http://www.inrebus.com/legalmaxims_a.php;

http://www.dummies.com/how-to/content/understanding-latin-legalese.html; https://lawyerist.com/45806/its-2012-nix-latinisms-in-your-legal-writing/

June 05, 2015

Scribes Grammar Tip No. 54:  Apostrophes

Many aspects of writing lack rigid rules, but punctuation often has firm right and wrong options. Very common punctuation errors these days involve the apostrophe.  In addition to the actual rules of punctuation, there is a practical rule worth following. A tip concerns smart and dumb apostrophes. Smart apostrophes curve toward the word, while dumb ones are straight up and down. Either one is fine, but a combination in a single document looks sloppy at best and is potentially dangerous. The danger is that someone later can argue that the portion of the document with one kind of apostrophe was written by a particular party, with resulting consequences as to how that portion should be construed.

 

Documents typically get a mixture of smart and dumb apostrophes when they are created by cutting and pasting from other documents or when they pass through multiple computers. Each computer is set with a default for smart or dumb; you can change the default if you wish under Tools. When you have a document with both kinds, do a search and replace (control-H) and replace apostrophe with apostrophe. All will then be in the style of your default. At the same time, search and replace quote marks as they will also be in both smart and dumb form if the apostrophes are mixed that way.

 

See generally http://smartquotesforsmartpeople.com/http://www.glossophilia.org/?p=7916http://www.fonts.com/content/learning/fyti/typographic-tips/smart-quotes; http://www.typewolf.com/cheatsheet

 

The following links will bring you to interactive tests in apostrophe use. Start with a test, or end with one, as you wish.

 

http://grammar.ccc.commnet.edu/grammar/quizzes/apostrophe_quiz2.htm

http://www.usingenglish.com/quizzes/39.html

http://owl.english.purdue.edu/exercises/3/3/10/

May 22, 2015

Scribes Grammar Tip No. 53:  Semicolons and Periods

Writers sometimes wonder when to use a semicolon and when to use a period. The 

choice is a matter of judgment and style rather than absolute rule.

 

  • The semicolon reflects that some element of the same point continues in the 
    second half of the sentence. If the second half of the sentence is a new thought, 
    then a period is appropriate. Thus, selection of the semicolon or period reveals 
    the writer's understanding of the material and the relationships of one point to 
    another.

 

  • The semicolon varies sentence length, making the writing more interesting. A 
    writing composed only of short, often choppy sentences is tedious.

 

  • Too many semicolons are as bad as too few; more than one or two in a sentence may signal the writer's floundering and inability to complete a thought.

 

For more information, see https://owl.english.purdue.edu/owl/resource/566/01/;  

http://www.nationalpunctuationday.com/semicolon.html
https://scribbleofwriters.wordpress.com/humor-in-writing/periods-vs-semicolons-a-feud-observed-b-l-byers/

May 08, 2015

Scribes Grammar Tip No. 52:  Semicolons

A semicolon is much more like a period than a comma. It marks "a distinct break in thought." Walker Estate, 376 Pa. 16, 22, 101 A.2d 652, 655 (1954). A Washington court explained: "A semicolon is used to show a 'stronger separation between the parts of a sentence than does a comma.'" Department of Labor and Industry v. Slaugh, 177 Wash. App. 439, 448, 312 P.3d 676, 680 (2013), quoting M. Semmelmeyer & D. Bolander, The New Webster's Grammar Guide 235 (Berkeley ed.1991). "A semicolon is used to separate compound sentences. It is used to separate an independent clause that could stand as a sentence." Drinkwater v. State, 69 Wis.2d 60, 73, 230 N.W.2d 126, 132 (1975), superseded by statute on other grounds, State v. McGee, 325 Wis.2d 401, 786 N.W.2d 489 (2010). 

April 24, 2015

Scribes Grammar Tip No. 51:  Doctrine of the Last Antecedent

As explained in In re Amy Unknown, 701 F.3d 749, 762 (5th Cir. 2012):

 

The rule of the last antecedent, recently applied by the Supreme Court in Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003), instructs that "a limiting clause or phrase," such as the "proximate result" phrase in [18 U.S.C.] § 2259(b)(3)(F), "should ordinarily be read as modifying only the noun or phrase that it immediately follows." "[T]his rule is not an absolute and can assuredly be overcome by other indicia of meaning," but "construing a statute in accord with the rule is 'quite sensible as a matter of grammar.'" Id.(quoting Nobelman v. Am. Sav. Bank, 508 U.S. 324, 330, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993)) ....

 

Although often followed, the rule has exceptions. Thus, Stepnowski v. CIR, 456 F.3d 320 (3d Cir. 2006), notes that, when there is a comma before a modifying phrase, that phrase modifies all of the items in a series and not just the immediately preceding item. As another court observed:

 

Under the last-antecedent rule of construction, therefore, the series "A or B with respect to C" contains two items: (1) "A" and (2) "B with respect to C." On the other hand, under the rule of grammar the series "A or B, with respect to C" contains these two items: (1) "A with respect to C" and (2) "B with respect to C."

 

Kahn Lucas Lancaster, Inc. v. Lark Int'l Ltd., 186 F.3d 210, 216 n.1 (2d Cir. 1999), abrogated on other grounds by Sarhank Group v. Oracle Corp., 404 F.3d 657 (2d Cir. 2005).  Another explanation appears in American Int'l Group, Inc. v. Bank of America Corp., 712 F.3d 775, 782 (2d Cir. 2013).

 

"This basketball team has a seven-foot center, a huge power forward, and two large guards, who do spectacular dunks," differs from the statement, "This basketball team has a seven-foot center, a huge power forward, and two large guards who do spectacular dunks." The first statement conveys that all four players do spectacular dunks. The latter statement conveys that only the guards do so.

 

An underlying question is whether the authors of the material being interpreted were precise in applying the rules of grammar. The fundamental rule is common sense. E.g., isabled in Action v. SEPTA, 539 F.3d 199, 210 (3d Cir. 2008); Demko v. United States, 216 F.3d 1049, 1053 (Fed. Cir. 2000); Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992).

April 10, 2015

Scribes Grammar Tip No. 50:  Commas

The comma may be the punctuation mark that is most widely used and abused. There are clear rules for the use of a comma, but the mark is sprinkled with random abandon through many sentences and omitted entirely from others. Some rules are generally accepted.

 

Kane v. Board of Appeals, 390 Md. 145, 164, 887 A.2d 1060, 1071 (2005), cert. denied, 547 U.S. 1179 (2006), instructs that "the Due Process Clause of the Fourteenth Amendment states: 'nor shall any State deprive any person of life, liberty, or property, without due process of law.' The comma following the word 'property' clearly indicates that the qualifying clause 'without due process of law' applies to all three terms: life, liberty, and property."

 

Labbe v. Nissen Corp., 404 A. 2d 564, 567 (Me. 1979), explains: "A comma is generally used to indicate the separation of words, phrases, or clauses from others not closely connected in the structure of the sentence." Commas "may be used to enclose as well as to separate," described sometimes as parenthetical commas and serial commas. State v. Clark, 455 P.2d 844, 846 (N.M. 1969)

 

There are several thousand cases construing text based on the presence of absence of one or more commas. Almost any reasonable construction can find cases in support if attorneys are willing to take the time to look. Attorneys can also cite grammar books to support the desired meaning.

March 27, 2015

Scribes Grammar Tip No. 49:  Punctuation

Earlier cases rejected or spoke disparagingly of the use of punctuation to construe statutes. The Supreme Court ruled in United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 82-83 (1932), as follows: "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 re-punctuate, if that be necessary, in order to arrive at the natural meaning of the words employed." Accord, Hammock v. Loan & Trust Co., 105 U.S. 77, 84-85 (1882) (courts "should disregard the punctuation, or re-punctuate, if need be, to render the true meaning of the statute"). The Court in Barrett v. Van Pelt, 268 U.S. 85, 91 (1925), quoting Chicago, M. & St. P. R. Co. v. Voelker, 129 F. 522, 527 (8th Cir. 1904), observed: 

 

"'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.'"

 

In some states, as explained in Yeager v. Unemployment Compensation Board of Review, 196 Pa. Super. Ct. 162, 173 A.2d 802 (1961): "Although acts are passed without punctuation, and the punctuation which is subsequently inserted by the Secretary of the Commonwealth may be ignored, the courts should not change the punctuation of a statute in order to give it a different meaning."

 

More recently, the Supreme Court unanimously observed that, while "the meaning of a statute will typically heed the commands of its punctuation," a "purported plain meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute's true meaning." United States Nat'l Bank of Oregon v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 454 (1993).  New York held in 1996: "Common marks of punctuation are used to clarify the writer's intended meaning and thus form a valuable aid in determining legislative intent ...."  A.J. Temple Marble & Tile v. Union Carbide Marble Care, 87 N.Y.2d 574, 663 N.E.2d 890, 640 N.Y.S.2d 849 (1996).

 

Before arguing meaning based on punctuation, investigate your state's approach and mold your argument to fit that approach.

March 13, 2015

Scribes Grammar Tip No. 48:  Grammar Exercises

Some folks just missed learning specific grammar rules in school, whether out with the measles, smitten with someone in class, or out of action due to one of the really good or bad events of childhood. This lack of knowledge is not a permanent flaw. The Internet offers a variety of lessons, exercises, and quizzes to do as needed.

 

February 27, 2015

Scribes Grammar Tip No. 47:  And/Or

The words "and/or" slip easily off our tongues and fingers, spreading ambiguity and confusion. The courts and writers have criticized the use of "and/or" with very little effect. For example, the Supreme Court of Texas found a lower court's use of "and/or" in an order granting a new trial to be reversible error: 

 

Here, the trial court's four articulated reasons, including "in the interest of justice and fairness," are all preceded or followed by "and/or." Many courts and critics have denounced the use of "and/or" in legal writing. E.g., Texas Law Review Manual on Usage & Style § 1.42 (Texas Law Review Ass'n ed., 12th ed. 2011) ("Do not use and/or in legal writing."); State ex rel. Adler v. Douglas, 339 Mo. 187, 95 S.W.2d 1179, 1180 (Mo. 1936) (en banc) ("The use of the symbol 'and/or' . . . should be condemned by every court."). The term inherently leads to ambiguity and confusion. William Strunk, Jr. & E.B. White, The Elements of Style 40 (4th ed. 2000); see also Bryan A. Garner, The Redbook: A Manual on Legal Style § 1.80 (2nd ed. 2006). In this order, the use of "and/or" leaves open the possibility that "in the interest of justice and fairness" is the sole rationale [for the new trial]. Because that is never an independently sufficient reason for granting a new trial, the amended order violated the first prong of the test we announce above.

 

In re United Scaffolding, Inc., 377 S.W.3d 685, 689-90 (Tex. 2012) (footnote omitted). To similar effect, the Supreme Court of Connecticut suggested that the use of "and/or" in jury instructions could be reversible error:

 

The term "and/or" is defined as "either and or or." Webster's New International Dictionary (2d Ed.). "It has been characterized as an equivocal connective, being neither positively conjunctive nor positively disjunctive." Holmes v. Gross, 250 Iowa 238, 250, 93 N.W.2d 714. The use of the term in legal writing has been heavily criticized, see generally, annot., 118 A.L.R. 1367; annot., 154 A.L.R. 866; 3 Words and Phrases "And/or"; most severely in Employers' Mutual Liability Ins. Co. v. Tollefsen, 219 Wis. 434, 263 N.W. 376. A number of courts have recognized that its use is confusing in jury instructions. Holmes v. Gross, supra; Snow v. Allen, 227 Ala. 615, 620, 151 So. 468; State v. Smith, 51 N.M. 328, 331, 184 P.2d 301; Preble v. Architectural Iron Workers' Union, Local No. 63, 260 Ill. App. 435, 442. Since there is to be a retrial of this action, we need not decide whether, under the circumstances, this aspect of the charge was reversible error. It is sufficient to note the potential for confusion inherent in using "and/or" in jury instructions as was done here, so that the jury is left uncertain whether they must find all or only one of a series of specifications of contributory negligence to exist in order to preclude a plaintiff's verdict.

 

Mack v. Perzanowski, 172 Conn. 310, 314-15, 374 A.2d 236 (1977). Even a brief search will produce many similar decisions.

February 13, 2015

Scribes Grammar Tip No. 46:  Grammar Knowledge Is Essential

Grammar is critical not only because it enables individuals to write coherently but also because it is used to assess the meaning of what others such as legislatures and contracting parties write. Thus, courts "begin by looking to the express language of the statute, construing words and phrases according to grammar and common usage." Jefferson Board of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010). Courts are required to follow elemental rules of grammar for a reasonable application of the legal rules of construction. General Fin. Services v. Practice Place, 897 S.W.2d 516, 522 (Tex.App. 1995). Courts employ traditional rules of grammar in discerning the plain language of the statute. State v. Bunker, 189 Wash.2d 571, 578, 238 P.3d 487, 491 (2010)

 

Naturally, every rule has a countervailing rule. "Indeed, justice should not be the handmaiden of grammar." Value Oil Co. v. Town of Irvington, 152 N.J. Super. 354, 365, 377 A.2d 1225, 1231 (N.J. Super. 1977), aff'd, 164 N.J. Super 419, 396 A.2d 1149 (App.Div.1978), citing Minor v. The Mechanics Bank of Alexandria, 26 U.S. 46, 7 L.Ed. 46 (1828); accord, Federal Communications Comm'n v. AT&T Inc., ___ U.S. ___, 131 S.Ct. 1177, 1181-82 (2011).

 

In the end, only an attorney who knows the rules of grammar completely can find the persuasive right answer through the effort to interpret a difficult writing.

January 30, 2015

Scribes Grammar Tip No. 45:  Gerunds

A gerund is a noun that is created by adding "ing" to a verb. All gerunds end in "ing," but not all words ending in "ing" are gerunds.

 

Gerunds function as nouns, so they require the punctuation that nouns require.

 

  • Martha's studying interfered with her social life.

  • I appreciated your helping with the cooking.

 

Sometimes the easiest way to learn is to take a few quizzes.

 

http://www.getitwriteonline.com/archive/022205posscasegerunds.htm

http://www.grammar-quizzes.com/gerundsum.html

http://www.englishpractice.com/grammar/participles-gerunds-exercise/

January 16, 2015

Scribes Grammar Tip No. 44:  Split Infinitives and Judges as the Audience

Many Star Trek fans take offense at the introductory words: "To boldly go where no one has gone before." We were taught, sometimes very strictly, that split infinitives were forbidden. Now most of us know that the rules on split infinitives are not as rigid as we were taught. See, e.g.,  Bryan Garner's views on split infinitives at http://www.lawprose.org/blog/?p=1008; http://www.lawprose.org/blog/?p=1012; http://www.lawprose.org/blog/?p=1017; http://www.lawprose.org/blog/?p=1021

 

Whatever personal conclusion one may reach, the issue is not just the preference of the writer.  Lawyers know or at least know something about the intended reader of a letter, brief, or agreement. Younger lawyers typically write for an older audience — their supervisors, judges assigned to their cases, often their clients. The more a writer knows about the audience, the more the writer can target the writing for that audience. A writer can read decisions by the assigned judge. An earlier conference in chambers may have given the writer a chance to see the kinds of books and some of the specific books the judge has in chambers. A lawyer writing a brief to be read by a much older judge would be wise to consider when that judge went to high school, college and law school and what was taught during those years.  Judges now nearing retirement were taught never to split infinitives.  Maybe these judges learned since then that split infinitives are not uniformly forbidden, but maybe they did not.


Split infinitives are thus a broader lesson in tailoring writing for a known audience.  The less that audience has to stumble through the writing, the more it can focus on the merits.

January 02, 2015

Scribes Grammar Tip No. 43:  Biannual/Biennial

Biannual means twice a year. Many use semiannual instead because of the risk of confused readers. Biennial means every other year. Risk of misunderstanding exists here as well.

December 19, 2014

Scribes Grammar Tip No. 42:  Ambiguous Timing Terms

A number of common words can have a dual meaning that can add ambiguity to writing.

 

  • While. This term can mean at the same time or although, and the reader may be required to read much or all of the sentence to know which meaning is intended.

  • Then. This term can mean next or at that time, but it can also mean consequently or as a conclusion.

 

These and similar terms present issues for the reader who must determine correctly which meaning is intended. If the meaning is not clear when the word is encountered, the reader may guess incorrectly and, on realizing the error, be forced to reread the sentence or passage. Some readers will not make this effort.

 

There are several solutions. Banish the ambiguous terms from legal writing. Pay extra attention to sentences using these words when reviewing drafts to ensure the words do not mislead readers. Ignore the problem and hope for the best. The last of these is worthy of the photograph depicting the ostrich in a 2011 Seventh Circuit decision at http://www.abajournal.com/files/DG0R2WE8.pdf.

December 05, 2014

Scribes Grammar Tip No. 41:  Exclamation Points

One might easily conclude that exclamation points should be avoided completely in legal writing. The courts rarely use the marks and sometimes are sorry for doing so. In one instance, for example:

 

The jury sent to the judge a note asking "Is the entire document (plaintiff's exhibit two) evidence?" The court answered, "The answer to the first question is yes!". The appellant complains that the exclamation point was an improper comment on the weight of the evidence. 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.

 

George Pharis Chevrolet, Inc. v. Polk, 661 S.W.2d 314, 317-18 (Tex. App. 1983).

 

To the extent courts remark on the use of exclamation points, the remark is negative. After noting the lack of authority for a point, the Fifth Circuit observed: "This argument is unfortunately characteristic of the Kings' briefs, which are noteworthy both for their excessive use of emotional overstatement, capital letters, underscoring, and exclamation points, and for their dearth of legal analysis and citation to apposite authority." King v. Fidelity National Bank of Baton Rouge, 712 F.2d 188, 191 n.7 (5th Cir. 1983), cert. denied, 465 U.S. 1029 (1984).

 

Review the 400 odd cases that refer to exclamation point(s), and you are likely to omit the punctuation mark in future legal writing.

Please reload

November 21, 2014

Scribes Grammar Tip No. 40:  Therefor or Therefore

Therefore means a conclusion, consequently, hence. Therefor means in place of, for that, for it. In drafting, many writers avoid using therefor and use one of its synonyms instead because the term is often misunderstood.

 

 

For example, State v. Mincy, 2 Ohio St. 3d 6, 441 N.E.2d 571 (1982), ruled: "We therefore hold that, when sua sponte granting a continuance under RC 2945.72(H) the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limits prescribed in RC 2945.71 for bringing a defendant to trial."

November 07, 2014

Scribes Grammar Tip No. 39:  Is It "i.e." or e.g."?

These terms are not interchangeable. I.e. (short for id est) means "it is" or "that is" and introduces a definition or explanation of the meaning. E.g. (short for exempli gratia)  means "for example" or "as an example" and introduces one or more examples of the point. 

 

It is misleading to use e.g. to introduce a list of all known examples. If you have located three cases after exhaustive search, do not mislead the court or other readers by introducing the three cases with an e.g. Courts occasionally ask for additional examples when their research has produced no others. Confession may be good for the soul, but it can be very embarrassing in a crowded courtroom.

 

There are many dozens of sites explaining the difference between i.e. and e.g., so it takes only a moment to check if you have any uncertainty.

October 24, 2014

Scribes Grammar Tip No. 38:  The Disembodied "This"

Many drafts of briefs and legal memos devote a paragraph or more to setting up the facts and background for a situation and then start a new sentence, even a new paragraph, with the word "This." This what? Is the reference to the nearest past noun?  To the whole conglomeration of facts and statements? If the latter, what characterization does the writer intend the reader to place on that conglomeration?  This amusing situation, this tragic circumstance, this troubling violation? The reader does not know for sure, and the writer has two problems: the reader may select a less desirable characterization and the reader has paused and lost the thrust of the writing.

 

When reviewing any piece of persuasive writing, stop to contemplate every disembodied "this" and find a rewording that brings the power back to the paragraph.  The longer it takes to find the right wording, the more important the task is.


Another writer's views on this subject are at https://www.law.louisville.edu/node/2328

October 10, 2014

Scribes Grammar Tip No. 37:  Bad Antecedents

A pronoun such as itheshetheyhishertheirthem and so on takes its content from the noun of the same number that appears most closely before the pronoun in the sentence or text. The noun in this case is called the "antecedent." If the closest noun is not the intended antecedent, then many learned to call it a "bad antecedent." These errors may be momentarily confusing to truly awful depending on the circumstances. All bad antecedents slow the reader; whether they annoy or amuse depends on the reader and the content. For example: 

 

Litigants depend on judges and jurors to hear the testimony and understand their motives.

 

Does their refer to jurors, judges or litigants? Grammatically, the answer is jurors but surely the writer intended to refer to litigants. The reader can reject testimony as an antecedent because it is singular as well as nonsensical.

 

As the example demonstrates, the agreement of pronoun and antecedent noun is important, but the placement of the antecedent noun is equally critical. These sorts of errors in legal writing arise more often because of revisions in the sentence after it was written than poor writing in the first instance. Nevertheless, these errors are distracting at best and divert the reader from the true content of the document.

 

The following sites offer training and many examples:

 

https://web.cn.edu/kwheeler/gram_pronoun_unclear.html

https://www.lakeforest.edu/live/files/1777-pronounantecedent-agreement51613pdf

http://englishplus.com/grammar/00000030.htm

https://owl.english.purdue.edu/owl/resource/595/01/

September 26, 2014

Scribes Grammar Tip No. 36:  Still More Grammar Mistakes

Remarkably, there is no shortage of grammar mistakes. The following sites offer both wry humor and lessons in how bad grammar is perceived in the world. If you see yourself in any of the examples, take that realization as an identification of areas worthy of more study.

 

http://www.grammar-monster.com/admin/gallery_of_grammar_mistakes.htm

http://www.bitrebels.com/lifestyle/grammar-mistakes-on-signs/

http://thechive.com/2014/04/28/the-importance-of-grammar-cannot-be-overstated-33-photos/

http://www.viralnova.com/grammar-fails/