LawProse Lessons

What is the proper use of were in the subjunctive mood? The subjunctive mood of the verb is a tricky one to explain. Would that it were not so [subjunctive mood], but it is [indicative mood]. In the Three Dog Night song “Joy to the World,” the lyrics use a subjunctive in “If I were [not was] the …

LawProse Lesson #109 Read More »

Should you avoid using sanction for fear of being misunderstood? Is its use sanctionable?       ANSWER: No, as long as your prose makes the contextual meaning clear. Sanction is a contronym: a word that bears contradictory senses. Think of oversight, which can mean either “responsible supervision” <the CFO has oversight of all budget matters> or “careless …

LawProse Lesson #108 Read More »

What is the most underused research technique among lawyers?       ANSWER: Undoubtedly it’s Google Books. It’s possible to perform extremely literal searches — word-for-word and character-for-character searches — on Google Books, and to have at your fingertips the entire corpus of major university libraries’ holdings. This means that you can scour all the legal treatises …

LawProse Lesson #107 Read More »

How did the jargonistic same — used as a pronoun — cause a crisis of presidential succession? Using same as a pronoun — as in acknowledging same or making note of same — is a primary symptom of legalese. And it’s imprecise legalese — the worst kind. When used as a pronoun, same can mean …

LawProse Lesson #106 Read More »

What does Bryan Garner have against “pursuant to”? ANSWER: It’s pure legalese. Lawyers are the only ones who use it — and never as a term of art. Worse still, it’s imprecise legalese. Because pursuant to can mean many things, it’s confusing and ineffective. Here are some typical examples of how lawyers use the phrase: …

LawProse Lesson #105 Read More »

What do lawyers need to know about dictionaries? A lot, frankly. Dictionaries aren’t created equal. So you must consider the source to ensure that what you’re consulting is thorough, accurate, and reputable. A good dictionary marshals the vocabulary of a language, or the specialized vocabulary of a particular field, and arranges the original and historically …

LawProse Lesson #104 Read More »

What’s the lawyer’s single best source for typography and document design? ANSWER: All the most important points of typography are covered in LawProse’s Advanced Legal Writing & Editing course. Professor Garner has also written a good deal about the subject in Garner’s Modern American Usage, The Winning Brief, The Redbook: A Manual on Legal Style, …

LawProse Lesson #103 Read More »

Is it correct to say in regards to or with regards to? ANSWER: No. Although we say with best regards and warmest regards, traditional English idiom demands in regard to and with regard to. Putting an s on these last two phrases has conventionally been considered poor usage. Oddly, it is proper and traditional to …

LawProse Lesson #102 Read More »

Should the t be sounded in often? ANSWER: Preferably not — if you want to sound educated. (Likewise, refined speakers accent preferably on the first syllable, not the second.) As in words like listen, fasten, and moisten, the t in often is silent: the word is correctly pronounced /off-ən/. In his A Dictionary of Modern …

LawProse Lesson #101 Read More »

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 »