LawProse Lessons

Is the correct past tense pleaded or pled — or perhaps plead? That depends. If you want to be unimpeachably correct, you’ll write pleaded in all past-tense uses <has pleaded guilty>. If you’re happy to defend yourself on grounds of “common” usage based on what many others do — despite mountains of contrary authority — you’ll probably use pled <has pled guilty>. If you’re …

LawProse Lesson #100 Read More »

Why did the late David Mellinkoff object to using “last will and testament”? The phrase last will and testament is a common legal doublet — a ceremonious phrase with ancient resonances. Sir Edward Coke (1552-1634) referred to an ultima voluntas in scriptis (= last will in writing). Last will and testamentis not a term of …

LawProse Lesson #99 Read More »

Is there ever a good reason to use “hereby” in your writing? ANSWER: Hereby is usually needless legalese akin to other here– and there– incantations (herein, thereinafter, hereof, thereto, heretofore, thereunder, herewith). These words summon up a supposed aura of legal ceremoniousness. They make legal writing an easy target for satirists. Good legal writers avoid …

LawProse Lesson #98 Read More »

Is it ever proper to use between when expressing a relation with more than two things? ANSWER: Yes. Good writers commonly use between when referring to more than two things that have reciprocal relations. It’s a common superstition that you should never use between when talking about more than two elements. Generally, between does apply …

LawProse Lesson #97: “Between” vs. “among” Read More »

What’s the best way to build your vocabulary? Why is it a good idea to do so?  ANSWER: First, keep a vocabulary notebook. Jot down every unfamiliar word that you encounter, look it up in a reliable dictionary, and copy down its definition. Commit it to memory. Try to make it yours. Second, read a …

LawProse Lesson #96 Read More »

Is it acceptable to close a letter with Sincerely as opposed to Sincerely yours? ANSWER: Yes, it is. For many decades, a majority of U.S. Supreme Court Justices have signed off their letters in precisely this way. The very question may surprise you, but in the late 1980s a writer for ALI-ABA (American Law Institute-American …

LawProse Lesson #95 Read More »

What’s wrong with “Where are you at?” or “Where’s it at?” ANSWER: Nothing is “wrong” with it in certain regional or class dialects: most linguists would say that this phrasing is perfectly appropriate for those settings. The problem is that those dialects have traditionally been associated with uneducated speech. The question is whether Where is …

LawProse Lesson #94 Read More »

What are the most commonly misspelled legal terms? Spelling raises troublesome issues. It’s no more important, really, than dribbling is to basketball, short putts to golf, or personal hygiene to social relations. If you think they’re/there/their is a distinction you needn’t concern yourself with — perhaps because it’s below your pay grade — you’re (not …

LawProse Lesson # 93: The toughest spelling test you’ll encounter. Read More »

What’s the most common syntactical error that lawyers make? ANSWER: It has to do with appositives. Lawyers can’t seem to handle them. They cause problems in both phrasing and punctuation. So what’s an appositive? Garner’s Modern American Usage (3d ed. 2009) defines it as a word or phrase that points to the same person or …

LawProse Lesson # 92 Read More »

In The Winning Brief, why does Bryan Garner cite so many books on writing to support his 100 brief-writing tips? ANSWER: The whole purpose of the book is to counteract the sylistically wayward practices of inept brief-writers, from ill-constructed sentences to unreadable issue statements. As he is quick to point out when teaching his seminar …

LawProse Lesson # 91 Read More »

Is it correct to refer to an attorney general or solicitor general as “General So-and-So”? ANSWER: Not really. The trend has been to address attorneys general and solicitors general as if they were military officers, as in “General Starr, when will the report be available to the public?” Despite its prevalence, this is strictly speaking …

LawProse Lesson # 90 Read More »

When should all-caps text be used? ANSWER: When you need to emphasize particularly important information in text, all-caps will do the job, but you should never use all-caps for more than just a few words, as in a title: THE OLD MAN AND THE SEA, for example, on a billboard. Less defensible is the quasi-shouting …

LawProse Lesson # 89 Read More »

What are the rules on initial capitals? ANSWER: Most of the first letters of words in the titles of books, articles, songs, etc. are capitalized. The exceptions are articles or prepositions of four or fewer letters (unless they begin the title). So The Great Escape and Much Ado About Nothing, but Hope Is the Thing with …

LawProse Lesson # 88 Read More »

What are the rules on indenting? ANSWER: The first rule of indenting is to change your word-processor’s default tab setting. Half-inch tabs are a sure sign of a dysfunctional layout. They jump out at you as soon as you pick up a document and see “A.” half an inch from the left margin, followed by …

LawProse Lesson #87 Read More »

What’s wrong with underlining in briefs, contracts, and other legal documents? ANSWER: Underlining is a holdover from the era of typewriters. It’s crude and unsightly. Why else would you recoil from a published book that contained underlining? Admit it: you would. Any publisher that typeset a book with underlining would seem like a fly-by-night operation. …

LawProse Lesson #86 Read More »

Why is The Elements of Style, by Strunk & White, at once so revered and so reviled? Some 52 years on, America’s favorite “little book” on style has become a source of controversy. It’s a primer–an excellent but extremely elementary book. Part of the negative attention it gets is based on the way some people …

LawProse Lesson #85 Read More »

What’s the LawProse Effective Writing Index? It’s a scale to gauge the ten most important attributes of analytical and persuasive writing. The Index — forgive us, but we use the acronym LEWI (pronounced “louie”) — measures clarity, readability, efficiency, flow, tone, and mechanics. When different lawyer-editors at LawProse independently measured various pieces of writing, the …

LawProse Lesson #84 Read More »

What is the most frequent error involving the semicolon? ANSWER: Placing it after a salutation in a letter, as in “Dear Lon Fuller; . . . .” That is worse than semiliterate: it is a barbarism. Only two punctuation marks are allowable after a salutation: the colon (in formal business letters) and the comma (in …

LawProse Lesson #83 Read More »

Lesson # 81 Does the new Scalia-Garner treatise take a position on the serial comma — that is, the one preceding “and” in the phrase “a, b, and c”? ANSWER: Yes, in Reading Law: The Interpretation of Legal Texts, Justice Scalia and Bryan Garner explain the Punctuation Canon. In the course of that section, they …

LawProse Lessons #81 & #82 Read More »

Lesson # 79 Why does Bryan Garner recommend deleting shall from all legal instruments? ANSWER: Several reasons: (1) It is the most frequently litigated word in the English language. (2) Not 1 lawyer in 100 uses it consistently in mandatory senses. (3) In most contracts, it bears three or four meanings — thereby violating the …

LawProse Lessons #79 & #80 Read More »