LawProse Lesson #109

LawProse Lesson #109

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 king of the world . . . .” The subjunctive mood is commonly said to express an action or state not as a reality, but as a mental conception (which hardly clarifies matters). Essentially, the verb changes from the normal indicative (I am or I was) to a different inflection (I be or I were) — either were in place of was or else the bare infinitive (that is, an infinitive without its to). In modern English, subjunctives are for the most part obsolete. (No one today says “If I be right . . . .”) But in the best English, they survive in six distinct contexts: 1.  Conditions contrary to fact <if I were you> (I’m not); <if the document were drafted flawlessly> (it isn’t). 2.  Suppositions <if he were to move, his commute would be shorter>. 3.  Wishes <I wish the brief were due tomorrow instead of today>. 4.  Demands and commands <the lawyer insisted that the defendant go last in the witness order>. 5.  Suggestions and proposals <the teacher suggested that her student check the syllabus before asking questions> <the proposal is that a team leader be present for every meeting>. 6.  Statements of necessity <it’s essential that she have a valid passport to travel to Europe>. One situation is especially thorny: when you refer to an indirect question asking about a past condition, but the question is not hypothetical or contrary to fact. In that case, use the simple past tense, not the subjunctive. For example “The trial court held that the contract’s signature was invalid, but even if it was [not were] valid, the contract had terminated at midnight.” (It might well have actually been valid.) Or: “The client asked if his past conviction was [not were] relevant to the new charges against him.” (It might well have been relevant.) In short, you can’t say were always follows if: if only it were that simple! Be that as it may . . . . Sources: Garner’s Dictionary of Legal Usage 854-55 (3d ed. 2011). Garner’s Modern American Usage 780-81, 905 (3d ed. 2009). George O. Curme, English Grammar (1953). Thanks to Mark Hansen for suggesting this topic.

3 thoughts on “LawProse Lesson #109”

  1. Dear Brian – First, thanks for providing the LawProse Lessons. I happily read each one.

    Next, a question about your first example of the thorny situation in Lesson #109. When I read the example, it seems that subjunctive could work there. Because the trial court has already held the signature invalid, assertion of the signature’s validity would be contrary to fact, which would seem to make “were” appropriate in the example. Can you help me out there, please?

    Best regards, Jon Hustis

  2. For about the past six months I have attempted to be placed on the distribution list for the LawProse Lessons–TO NO AVAIL! My efforts included no less than six telephone calls to LawProse, Inc. [(214) 691-8588], and on each occassion I was promised that I would receive the e-mails (and yes, I have checked my quarantine file to ensure that I never received an e-mail). You can sign up to receive the Usage Tip (of the day) e-mails on line but not for the LawProse Lessons e-mails. It shouldn’t be this hard to be placed on the distribution list, should it? If you’re promises are sincere, please contact me (and given my past history in attempting to be placed on the mailing list, a little follow up would be nice to ensure the problem has been solved). Otherwise, I give up. [Can you sense my frustration?]

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