LawProse Lessons

Ban and/or. And/or dates from the mid-19th century. Although lawyers and courts have vilified and/or for most of its life, this bit of legalese continues to infest legal writing and create ambiguity. The literal sense of and/or is “both or either,” so that A and/or B means (1) “A,” (2) “B,” or (3) “both A and B.” Since and/or has a …

LawProse Lesson #209: Ban “and/or” Read More »

Graduate, vb.      Last week, at a performance of The Originalist in Washington, D.C., the stage actor Ed Gero—in a superb portrayal of Justice Antonin Scalia—delivered the small gaffe of having the Justice say “she graduated Harvard College.” After receiving a friendly suggestion later that evening, Mr. Gero assured me that in future performances, …

LawProse Lesson #208: “Graduate,” vb. Read More »

Three ways to improve a statement of facts. First, let it progress naturally from beginning to end—almost invariably in chronological order. Just tell the judge your story of the relevant events that gave rise to this legal dispute. Presenting the facts in order gives the judge a more coherent picture of the case. Second, remove …

LawProse Lesson #207: Three ways to improve a statement of facts. Read More »

What important skill is most generally lacking among law-school graduates? Almost certainly this: the ability to develop, hone, and deliver arguments about the interpretation of contracts and statutes. Lawyers often spend months working on text-based cases without realizing that their best argument is the ordinary-meaning canon, the negative-implication canon, the last-antecedent canon, the surplusage canon, …

LawProse Lesson #206: Statutory and Contractual Interpretation. Read More »

Lay, v.t. vs. lie, v.i. These two short verbs can cause tall trouble. Let’s lay down some helpful guidelines so we won’t be accused of lying down on the job. Lay means “to put down, place, or arrange.” It’s always transitive—it needs a direct object {Please lay the purchase contract on Stan’s desk.}. Lie means “to recline, be …

LawProse Lesson #205: Lay, v.t. vs. lie, v.i. Read More »

Lay of the land or lie of the land? Literally, the phrase means “the arrangement of an area’s terrain; topography.” Figuratively, it refers to “the facts of a given situation; the current state of affairs.” The phrase is an Americanism dating from the late 18th century. From the beginning, it’s been lay of the land—although as …

LawProse Lesson #204: “Lay of the land” or “lie of the land”? Read More »

Lie low or lay low?      Both phrases could be correct—it depends on the tense you are using. Use lie low in the present tense; lay low in the past tense. Ex.: The celebrity is lying low for a few weeks to avoid news reporters. Ex.: Last month, that same celebrity lay low to avoid the paparazzi. Ex.: He has …

LawProse Lesson #203: “Lie low” or “lay low”? Read More »

Should you use “(s)” to indicate that a noun could be either singular or plural? Competent drafters should avoid creating parenthetical plurals and craft better ways to express a thought. A parenthetical plural is formed when an “(s)” is added to the end of a singular noun to indicate that the statement may apply to …

LawProse Lesson #202: Parenthetical plurals. Read More »

Why do so many federal statutes use the spelling subpena instead of subpoena?      Funny thing. It seems to be the result of an old choice made for the Government Printing Office Style Manual. The earliest copy we have at LawProse, the 1926 edition, has no reference to the spelling of this word. But the …

LawProse Lesson #201: “Subpoena” vs. “subpena” Read More »

Which is standard: toward or towards?       In American English, toward has been the usual form in print sources since about 1900. Many usage authorities since then have expressed a strong preference for toward, without the final –s. The s-less form of the word is consistent with analogous (though less common) directional words …

LawProse Lesson #200: Which is standard: “toward” or “towards”? Read More »

Persuasive openers.      Almost all poorly written motions and briefs have one thing in common: they get off to a bad start. They have no clear, boldly expressed point. They’re mushy. How to fix that problem? Say on page one—in plain English that anyone can understand—what problem the court is to resolve, how, and …

LawProse Lesson #199: Persuasive openers. Read More »

Commas with coordinating conjunctions. Many writers struggle with whether to use a comma in a compound sentence whose clauses are joined by a coordinating conjunction (and, but, or, nor, for, yet, so). Although some examples may be tricky or complicated, most of the time some basic rules apply. Here’s a refresher on the fundamentals: 1. …

LawProse Lesson #198: Commas with coordinating conjunctions. Read More »

Using ellipsis dots with quotations. Lawyers frequently need ellipsis dots because of the abundant quotations in legal writing—quotations that often need trimming. Properly used, ellipses are perfectly respectable and often necessary to avoid both the reproduction of extraneous words (a time-waster) and any suspicion that the writer has tampered with the quotation’s meaning (a credibility-waster). …

LawProse Lesson #197: Using ellipsis dots with quotations. Read More »

Notwithstanding. “Notwithstanding is much too ponderous for everyday life. Say in spite of or despite.” — Rudolf Flesch, The ABC of Style 207 (1964). After 50 years, Flesch’s sentiment still holds true for most writing—even most legal writing. There are two main problems with notwithstanding. First, it’s a cumbersome connector that bogs down your prose. In legal writing, …

LawProse Lesson #196: “Notwithstanding” Read More »

Due to what? Traditionally, due functions as either a noun meaning “something owed” {The players finally gave their coach his due.} or an adjective meaning “adequate” or “appropriate” {due process} {with all due respect}. The phrase due to most traditionally functions as an adjective meaning “attributable to.” Linguistic conservatives think that the phrase is best used (1) after a …

LawProse Lesson #195: “Due to” what? Read More »

Portmanteau words. A portmanteau is a type of luggage with two separate sections. A portmanteau word is formed by combining the sounds and meanings of two different words. Linguists also call such a word a blend. Most portmanteaus merge the initial part of one word with the end of another: smog (smoke + fog) and infomercial (information + commercial). Others …

LawProse Lesson #194: Portmanteau words. Read More »

Words of the Year 2014. In keeping with a recently established tradition, various lexicographic departments have announced their Words of the Year. For 2014, Oxford Dictionaries picked vape. Although it originated as an abbreviated form of vapor or vaporize, Oxford gave vape its own entry in August 2014. The verb means “to inhale and exhale the vapor …

LawProse Lesson #193: Words of the Year 2014 Read More »

Ethical communications for lawyers: Client confidences.      Trustworthy. That’s how every client should describe you. Keep all client confidences—and make it a habit to keep all confidences in everyday life. The law doesn’t make an exception for spouses or friends, so don’t talk to them about your client’s confidential matters. No matter what. Your …

LawProse Lesson #192: Client confidences. Read More »

Ethical communications for lawyers: Never tell a lie. “He’s not in the office right now.” (Actually, he is.) “I’m not authorized to offer one penny more.” (Actually, she has authority to settle for quite a bit more than she’s saying.) Advice about lying is tricky. But it’s possible to carry on your professional life without …

LawProse Lesson #190: Ethical communications. Never tell a lie. Read More »

Our edited version. We hope you enjoyed testing your editing skills! Here’s our revised version: Marcus Doyle moves to extend the pretrial-filing deadline and respectfully states: On August 4, 2014, this Court ordered Doyle, under Rule 16(b), to submit a pretrial order before January 30, 2015. Although Doyle has diligently prepared for trial, he needs …

Lesson #189 (Part 2): Edits to the exercise. Read More »