LawProse Lesson #196: “Notwithstanding”

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, notwithstanding commonly means despite, in spite of, or although. Try replacing notwithstanding with the fitting simpler term {Notwithstanding [read Despite] the statute’s clear use of the phrase any U.S. citizen, Mr. Miller is arguing that it doesn’t apply to him.} {Meredith will stay strong in her convictions notwithstanding that [read although or even if] the majority disagrees with her.}. Notwithstanding is just one of the multisyllabic connectors that typify the leaden style so common in legal writing—words such as consequently, inasmuch as, and nevertheless. They sap momentum. The second problem with notwithstanding is that it may cause confusion. Although this prepositional sentence-starter has been used since the 1300s, some literalist drafters ask: What doesn’t withstand what else? Take this sentence in a section of a contract: Notwithstanding the limitations in § 48, Bancroft may take possession on Monday. Are the limitations of § 48 “not withstanding” (i.e., subordinated to) the present section (Bancroft takes possession on Monday, § 48 be damned)? Or is the present section “not withstanding” (subordinated to) § 48 (Bancroft takes possession only if § 48 allows it)? Because the former is the correct reading, some believe that notwithstanding should be sent to the end of the phrase: The limitations in § 48 notwithstanding, Bancroft may take possession on Monday. It would be better to recast the sentence: Bancroft may take possession on Monday; the limitations in § 48 will not apply. By the way, if you do choose to use notwithstanding in your writing despite my advice, starting a sentence with it is grammatically acceptable—it’s not a dangling participle as some writers seem to think. It’s not a participle at all. But it is a stylistic blemish in most contexts. Further reading: Garner’s Dictionary of Legal Usage 615–16 (3d ed. 2011). Garner’s Modern American Usage 575 (3d ed. 2009). The Winning Brief 324–28 (3d ed. 2014).