LPL

Like plead, the verb strike causes lawyers and judges to hesitate in forming the past participle: has the judge struck something from the record or stricken it from the record? English-language authorities have long said that the verb strike should be inflected strike > struck > struck, hence today I strike, yesterday I struck, many …

LawProse Lesson #234: Stricken from the record or struck from the record? Read More »

More often than you might think, a lawyer will say to me: “Why care so much about tiny points of correctness? A judge isn’t going to rule against you just because you’ve misspelled de minimis.” True enough, but naive. This view disregards the science behind the “halo effect”: a strong showing in matters of form strongly …

LawProse Lesson #233: Can’t judges just look past trivial errors? Read More »

Why are point headings so crucial to effective brief-writing? I explain why—and how to create powerful ones—in two recent columns in the ABA Journal. You’ll find them here and here. See for yourself why so many lawyers have been circulating these columns to their colleagues. That’s the point of this week’s lesson. For more information on …

LawProse Lesson #232: The power of point headings. Read More »

What’s your conclusion of choice:      1. Wherefore premises considered, Defendants demand this Court grant Defendants’ Motion and enter a take-nothing judgment against Plaintiff.      2. For all the foregoing reasons, Defendants request this Court to grant Defendants’ Motion and enter a take-nothing judgment against Plaintiff.      3. The problem presented by this case is …

LawProse Lesson #231: Are you coming or going? Read More »

If we’d thought a moment about it before sending last week’s LawProse Lesson, we’d have foreseen the onslaught of lawyers’ vehement, overheated defenses of pursuant to. It is, after all, the phrase that legalese lovers crave most. They’re addicts who can’t bear a moment of withdrawal. “I use it pursuant to standards of good writing, …

LawProse Lesson #230: The most addictive phrase in legalese. Read More »

Is the phrase “pursuant to” ever substantively or stylistically justified? Perhaps. But in 25 years of editing thousands of legal documents for law firms, corporate clients, and government agencies, the lawyer-editors at LawProse have never encountered a sentence that needed it. The phrase is pure legalese: it does little more than make legal writers feel …

LawProse Lesson #229: Is “pursuant to” ever useful? Read More »

A rule of thumb is “a roughly practical measure that is neither precise nor invariable.” The term almost certainly derives from the habit of tailors’ or carpenters’ use of the thumb as the rough measurement of an inch. The earliest known use of the term dates from 1685: “Many profest Christians are like to foolish …

LawProse Lesson #228: Is “rule of thumb” offensive? Read More »

After last week’s lesson about defining including to mean “including but not limited to” in legal instruments, several lawyers responded inviting further commentary. One correspondent took up my challenge: “I defy anyone to produce a case in which this definition hasn’t worked, so that including defined in this way has nevertheless been held to introduce an exhaustive …

LawProse Lesson #227: Part 2: “Including but not limited to” Read More »

Lawyers often ask why we so commonly see the phrase including but not limited to—or variations such as including without limiting the generality of the foregoing. Doesn’t including itself imply but not limited to? The answer is yes, of course. But legal drafting isn’t served well by implications, as opposed to explicit denotations. It’s always subject to hostile …

LawProse Lesson #226: “including but not limited to” Read More »

Garner’s Law of Loanwords The more arcane or technical a loanword, the more likely it is to retain a foreign plural, diacritical marks, and italics. The more common it becomes, the more likely it is to lose them. Corollary: If the loanword becomes widespread, it is most likely to lose italics first, then diacritical marks …

LawProse Lesson #225: Announcing a New Law Read More »

In recent weeks, several readers have taken issue with the idea that a man with “Jr.” appended to his name should drop it within two years of his father’s death. In our LawProse Lesson of May 2013, we cited six authorities published from 1937 to 2003 insisting that the “Jr.” be dropped upon the father’s death. …

LawProse Lesson #224: Rethinking the dropping of “Jr.” Read More »

Every once in a while, an American will tell me that The Economist makes for wretched reading because of its many misspellings. I fear that they’re betraying both provincialism and sloth in reading. Like all other British publications, The Economist uses British English spellings. Hence BrE –our (favour) to AmE –or (favor), BrE –re (centre) to AmE …

LawProse Lesson #223: The Economist’s “Misspellings” Read More »

What is a misnomer? In law, a misnomer is the use of a wrong or inappropriate name—usually of a person or place—in a legal document. In nonlegal contexts, misnomer usually refers to a misdescription of a thing or concept.      You’ll occasionally find this term misused to mean “a popular misconception” {It’s time to banish the …

LawProse Lesson #222: What is a “misnomer”? Read More »

The fallacy of intelligibility. Several readers wrote about last week’s lesson to say that it matters not one whit whether you “cite a case” or “cite to a case.” They said: “Everybody knows what it means.” That’s an interesting line of argument. You’ll encounter it often in usage circles, but not among those who prize …

LawProse Lesson #221: The fallacy of intelligibility. Read More »

Is the verb “cite” transitive or intransitive? For most of its history, the verb cite (dating from the 15th century) has been a transitive verb; that is, it takes a direct object. For example, a lawyer cites a case or a police officer cites a driver for a traffic violation.       I could cite …

LawProse Lesson #220: Is the verb “cite” transitive or intransitive? Read More »

Are “certworthy” and “enbancworthy” bona fide words? Yes. According to the 10th edition of Black’s Law Dictionary, certworthy dates from 1965 and means “(of a case or issue) deserving of review by writ of certiorari.” It was first recorded in the 7th edition of Black’s in 1999.       Enbancworthy is recorded from 1968 and is defined as …

LawProse Lesson #219: Are “certworthy” and “enbancworthy” bona fide words? Read More »

How much argle-bargle is required for jiggery-pokery? In the last few Supreme Court terms, Justice Antonin Scalia has used some memorable British colloquialisms—especially argle-bargle and jiggery-pokery. Argle-bargle is a chiefly British phrase that has taken on the meaning “copious but meaningless talk or writing; nonsense.” It originated in the early 19th century from the Scottish term argle—a …

LawProse Lesson #218: How much argle-bargle is required for jiggery-pokery? Read More »

When do you capitalize federal and state? What about congressional and constitutional?      These words have been worked hard over the past week. Maybe they’ve earned capitals on that basis alone. But let’s see what the best typographic practice calls for—keeping in mind that professional editors today overwhelmingly prefer “down-style,” in which capitalization is sparingly used. …

LawProse Lesson #217: When do you capitalize “federal” and state”? Read More »

Embrace constructive criticism.      Undeveloped writers feel instinctively that if someone else criticizes their writing, it’s a personal affront. But more experienced writers know that if you insulate yourself from criticism, you’ll find it difficult to improve. Every document can benefit from a review by a fresh pair of eyes—as many as possible, in …

LawProse Lesson #216: Embracing constructive criticism. Read More »

How do you decide which Latin phrases to italicize and which ones to keep in roman type? The answer depends on how thoroughly naturalized the word, abbreviation, or phrase has become in English. If the term has become so commonplace in English that it is said to be “anglicized,” it stays in roman type; if …

LawProse Lesson #215: How do you decide which Latin phrases to italicize? Read More »