LawProse Lessons

Structuring a textual argument. Here’s a little-known secret of advocacy: courts tend to analyze questions of interpretation systematically — in this order: (1) text, (2) structure, (3) purpose, and (4) history. The courts, especially federal courts, have explicitly endorsed the technique. In fact, they developed it from the germ of an idea expressed by Justice …

LawProse Lesson #168: Structuring a textual argument. Read More »

The evolution of beg the question. Traditionally, this phrase means “to base a conclusion on an assumption that is as much in need of proof or demonstration as the conclusion itself.” The formal Latin name for this logical fallacy is petitio principii. The tenth edition of Black’s Law Dictionary (released last month) defines it on …

LawProse Lesson #167: The evolution of “beg the question.” Read More »

Should you write supposed to or *suppose to? The correct phrase when you mean “expected to” is supposed to {That movie is supposed to be the summer blockbuster}. But writing *suppose to is an exceedingly common error {We are *suppose to [read supposed to] go to the library for the lecture}. In speech, the sound …

LawProse Lesson #166: Which do you suppose is correct: “supposed to” or “suppose to”? Read More »

Ruling, order, opinion, judgment, decree, and verdict: What are the differences? Although these terms are sometimes used interchangeably, they shouldn’t be. A ruling is the outcome of a court’s decision, whether on some particular point of law (such as the admissibility of evidence) or on the case as a whole. A ruling may lead to an …

LawProse Lesson #165: “Ruling” vs. “opinion” vs. “judgment,” etc. Read More »

Lesson #164 What’s the difference between a court’s finding and a court’s holding? Judges at any level make findings of fact and holdings or conclusions of law. Good legal writers observe the distinction and never say that a court holds on questions of fact. Ex.: Because the court finds that the jury’s finding is supported by the evidence, the court holds that …

LawProse Lesson # 164: What’s the difference between a court’s finding and a court’s holding? Read More »

Can a case “hold” something? Yes. It’s fine to write that a certain case held something {Erie held . . .}, rather than to say that the court, in that case, held such and such {The court in Erie held . . .}. This practice is an innocuous form of hypallage, which is a figure …

LawProse Lesson #163: Can a case “hold” something? Read More »

Should you use a singular or plural pronoun when referring to an entity? A pronoun must agree in number with its antecedent. Although that rule is usually simple enough, it becomes a little tricky when the antecedent is a collective noun — a word that is singular in form but denotes a group of people …

LawProse Lesson #162: Singular or plural pronoun with an entity? Read More »

Multiple punctuation marks. After last week’s lesson on punctuation with quotation marks, a few people asked how to punctuate a midsentence quotation that ends in a question mark. For example: By first deliberately stating an incorrect version of the events and then asking, “That’s the way it happened, isn’t it?” the detective lured the suspect …

LawProse Lesson #161: Multiple punctuation marks. Read More »

Correct placement of punctuation in relation to quotation marks. A common grammatical concern is how to punctuate around a quotation correctly. Does a semicolon go inside or outside the closing quotation mark? What about a question mark? What if the quotation itself is a question? And what if you have nested quotations? Here are some …

LawProse Lesson #160: Correct punctuation with quotation marks. Read More »

Were you summonsed or summoned to appear in court? Although summonsed isn’t downright wrong, in modern legal usage it’s much preferable to say that someone was summoned to appear in court. Summons as a verb dates from the 17th century. It has been used to mean (1) “to cite to appear before a court, judge, …

LawProse Lesson #159: Were you “summonsed” or “summoned” to appear in court? Read More »

Whether whether causes problems for legal writers. Yes, it does — in four ways: (1) in issue statements, (2) in the common misusage of if for whether, (3) in needless instances of whether or not, and (4) in the proper phrasing of an appositive (question whether vs. question of whether vs. question as to whether). …

LawProse Lesson #158: Whether “whether” causes problems for writers. Read More »

What’s the easiest way to improve most transactional drafting? Rigorously impose a consistent numbering system, create more headings, and banish romanettes. Use a cascading left-hand indent. Ideally, the numbering has four levels of breakdown. That’s all you’ll normally need: Imposing this format on existing documents has several advantages. First, you’ll discover many needless inconsistencies in …

LawProse Lesson #157: An Immediate Improvement for Contracts Read More »

The biggest mistake in motion practice. What’s the biggest mistake commonly made in motion practice? It’s getting off to a bad start, typically with a repugnant paragraph containing cumbersome boilerplate and parenthetical definitions that insult the judge’s intelligence. A brief that gets off to a bad start is a bad brief. There is no recovering. …

LawProse Lesson #156: The biggest mistake in motion practice. Read More »

Is it properly brinkmanship or brinksmanship? Brinkmanship. There’s no s after the brink, though many people mistakenly add it on the analogy of gamesmanship (which applies to all types of games and competitions). The forthcoming 10th edition of Black’s Law Dictionary will contain this entry: brinkmanship. (1956) A method of gaining a negotiating advantage by …

LawProse Lesson #155: Is it properly “brinkmanship” or “brinksmanship”? Read More »

Compound words: Is it healthcare, health-care, or health care? The better practice is to write it as a solid, unhyphenated word: healthcare. You’ll save yourself grief and, to the extent your writing endures, you’ll look better in the long run. Although the two-word form health care is more common today, the trend is clearly toward …

LawProse Lesson #154: Compound words: Is it “healthcare,” “health-care,” or “health care”? Read More »

Phrasal verbs and their corresponding nouns. A phrasal verb is a verb teamed up with a preposition or adverb (such as up in this sentence). The word after the verb is traditionally called a particle, and it often gives the verb a meaning different from what it would have on its own. (Compare: pass up, …

LawProse Lesson #153: Phrasal verbs and their corresponding nouns. Read More »

Hyphenating phrasal adjectives (Part 2). Last week we began a study of phrasal adjectives. It gets complicated. One correspondent said she’d never hyphenate high-school dropout (though the Wall Street Journal advises doing so). But high school dropout might suggest a glue-sniffing former truant. You see? Ambiguities can pop up where you least expect them. The …

LawProse Lesson #152: Hyphenating phrasal adjectives (Part 2) Read More »

The art of hyphenating phrasal adjectives.      When a phrase functions as an adjective, the phrase should ordinarily be hyphenated. Professional writers and editors regularly do this. Search for hyphens on a page of the Wall Street Journal or the New Yorker and you’ll spot many. But less-polished writers often fail to appreciate the difference …

LawProse Lesson #151: The art of hyphenating phrasal adjectives. Read More »

When should you hyphenate prefixes? If you want your writing to have professional polish, resist the urge to hyphenate prefixes. In American English, words with prefixes are generally made solid {codefendant, nonstatutory, pretrial}. Modern usage omits most hyphens after prefixes even when it results in a doubled letter {misspell, posttrial, preemption, reelection}. But there are …

LawProse Lesson #150: When should you hyphenate prefixes? Read More »