LawProse Lesson #98

LawProse Lesson #98

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 them. But hereby occasionally serves one useful function: as a “performative” adverb — one that transforms a statement into what lawyers call a verbal act. That is, hereby can sometimes make it clear that the sentence in which it appears constitutes the legally operative act by which something is done. For example, writing You are hereby my successor makes it clear that with that very statement I’m naming you as my successor. The same sentence without herebyYou are my successor — might refer instead to my actions taken in another document or at a different time; the sentence itself might not be the operative act. Among the verbs that hereby can support in this way are assign, disclaim, give, reinstate, reserve, resign, revoke, terminate, and withdraw. For an informed discussion of this issue by a noted plain-language advocate, see Richard C. Wydick, True Confessions of a Diddle-Diddle Dumb-Head, 11 Scribes J. Legal Writing 57, 68-74 (2007). As Wydick notes, the decision about when hereby really contributes something can be a close call. Yet it’s usually no help. A New York document now on my desk demands a signature attesting that “I do hereby certify that all statements made by me in this application are true.” The first five words in that sentence could be safely omitted — it’s the signature and not any magic words that bind the signer to the statement. Hence: “All my statements in this application are true.” I do hereby declare that an adequate replacement. Sources: Garner’s Dictionary of Legal Usage 407 (3d ed. 2011). Black’s Law Dictionary 794 (9th ed. 2009). Richard C. Wydick, True Confessions of a Diddle-Diddle Dumb-Head, 11 Scribes J. Legal Writing 57, 68-74(2007).

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