LPL

Lawyers’ biggest failing as writers. What’s the most pervasive flaw among legal writers? It’s the tendency to begin writing before fully understanding the message to be conveyed. Lawyers often don’t think through what they want to say until they’re already writing—and they therefore meander, backtrack, and even restart. Unless they spend a great deal of […]

Caselaw: one word or two? Two-syllable noun phrases often begin as separates, then become hyphenated, and then become solidified. Take, for example, the word today. It started as two words {to day}. In the 19th century it was commonly hyphenated {to-day}. The Century Dictionary (1895) listed to-day as the preferred form with today as a variant. In 1934 the

Does a snarky tone win in motion practice? Among the most common remarks that judges make about advocacy is how extremely distasteful they find digs, jabs, put-downs, and negative characterization of opposing counsel and opposing clients. Yet litigators everywhere seem to adopt these tactics more than ever. So what’s the best approach, and why? Should

Nouns of multitude.      Last week, we discussed the distinction between collective nouns and mass nouns and how you treat each in terms of numerical agreement. This week, we’ll address the related concept of nouns of multitude {a number of} {a bunch of} {a lot of}. These constructions typically place a collective noun after

Collective vs. Mass Nouns.      In last week’s lesson on and/or, one of the examples used this sentence: The team of lawyers, paralegals, and mediators resolved the case quickly for their clients. One reader wrote and asked why the correct wording isn’t “its clients” instead of “their clients.” It’s an arguable point—but one with a preponderance

Ban and/or. And/or dates from the mid-19th century. Although lawyers and courts have vilified and/or for most of its life, this bit of legalese continues to infest legal writing and create ambiguity. The literal sense of and/or is “both or either,” so that A and/or B means (1) “A,” (2) “B,” or (3) “both A and B.” Since and/or has a

Graduate, vb.      Last week, at a performance of The Originalist in Washington, D.C., the stage actor Ed Gero—in a superb portrayal of Justice Antonin Scalia—delivered the small gaffe of having the Justice say “she graduated Harvard College.” After receiving a friendly suggestion later that evening, Mr. Gero assured me that in future performances,

Three ways to improve a statement of facts. First, let it progress naturally from beginning to end—almost invariably in chronological order. Just tell the judge your story of the relevant events that gave rise to this legal dispute. Presenting the facts in order gives the judge a more coherent picture of the case. Second, remove

What important skill is most generally lacking among law-school graduates? Almost certainly this: the ability to develop, hone, and deliver arguments about the interpretation of contracts and statutes. Lawyers often spend months working on text-based cases without realizing that their best argument is the ordinary-meaning canon, the negative-implication canon, the last-antecedent canon, the surplusage canon,

Lay, v.t. vs. lie, v.i. These two short verbs can cause tall trouble. Let’s lay down some helpful guidelines so we won’t be accused of lying down on the job. Lay means “to put down, place, or arrange.” It’s always transitive—it needs a direct object {Please lay the purchase contract on Stan’s desk.}. Lie means “to recline, be

Lay of the land or lie of the land? Literally, the phrase means “the arrangement of an area’s terrain; topography.” Figuratively, it refers to “the facts of a given situation; the current state of affairs.” The phrase is an Americanism dating from the late 18th century. From the beginning, it’s been lay of the land—although as

Lie low or lay low?      Both phrases could be correct—it depends on the tense you are using. Use lie low in the present tense; lay low in the past tense. Ex.: The celebrity is lying low for a few weeks to avoid news reporters. Ex.: Last month, that same celebrity lay low to avoid the paparazzi. Ex.: He has

Should you use “(s)” to indicate that a noun could be either singular or plural? Competent drafters should avoid creating parenthetical plurals and craft better ways to express a thought. A parenthetical plural is formed when an “(s)” is added to the end of a singular noun to indicate that the statement may apply to

Why do so many federal statutes use the spelling subpena instead of subpoena?      Funny thing. It seems to be the result of an old choice made for the Government Printing Office Style Manual. The earliest copy we have at LawProse, the 1926 edition, has no reference to the spelling of this word. But the

Which is standard: toward or towards?       In American English, toward has been the usual form in print sources since about 1900. Many usage authorities since then have expressed a strong preference for toward, without the final –s. The s-less form of the word is consistent with analogous (though less common) directional words

Persuasive openers.      Almost all poorly written motions and briefs have one thing in common: they get off to a bad start. They have no clear, boldly expressed point. They’re mushy. How to fix that problem? Say on page one—in plain English that anyone can understand—what problem the court is to resolve, how, and

Commas with coordinating conjunctions. Many writers struggle with whether to use a comma in a compound sentence whose clauses are joined by a coordinating conjunction (and, but, or, nor, for, yet, so). Although some examples may be tricky or complicated, most of the time some basic rules apply. Here’s a refresher on the fundamentals: 1.

Using ellipsis dots with quotations. Lawyers frequently need ellipsis dots because of the abundant quotations in legal writing—quotations that often need trimming. Properly used, ellipses are perfectly respectable and often necessary to avoid both the reproduction of extraneous words (a time-waster) and any suspicion that the writer has tampered with the quotation’s meaning (a credibility-waster).

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,

Due to what? Traditionally, due functions as either a noun meaning “something owed” {The players finally gave their coach his due.} or an adjective meaning “adequate” or “appropriate” {due process} {with all due respect}. The phrase due to most traditionally functions as an adjective meaning “attributable to.” Linguistic conservatives think that the phrase is best used (1) after a