Over-deleting that can cause miscues.

When I was a young lawyer, a senior attorney edited something I had written and removed the word that in several places, saying, “Whenever you can delete that, do it to streamline the writing.” In the years since, I’ve heard the same advice many times: “delete extraneous thats.”

The advice isn’t wrong, but we sometimes implement it in dysfunctional ways: we sometimes delete that when it isn’t extraneous. Let’s look at a few examples.

1. The respondent argues the statute precludes all common-law claims.
2. The witness said the defendant had lied about the date.

For me, sentence 1 causes a miscue—a momentary misunderstanding—because at first, I think the respondent is “arguing the statute” (as opposed to arguing case law). Only as I read on do I realize that the respondent is not arguing the statute; the respondent is making an argument about what the statute does. So for me, 1a is better, even though it’s one word longer:

1a. The respondent argues that the statute precludes all common-law claims.

But for me, sentence 2 doesn’t cause the same miscue. With the verb “say,” I somehow know that the writer doesn’t mean that the witness “said the defendant.” I know it means that the witness said that the defendant had lied. So if I wrote sentence 2a, I could justifiably leave out that (although retaining it is fine, too):

2a. The witness said that the defendant had lied about the date.

These two examples highlight why deleting that is tricky. It’s difficult to give strict guidelines for when deleting that is justified and when deleting that will cause a miscue.

So I suggest that for many common verbs in legal writing, retain that. Verbs like admit, allege, conclude, find, hold, reason, show, and suggest. Here are some examples in which I think that was wrongly omitted:

3. The court concluded the claim was brought in bad faith.

• The court concluded the claim …? Oh. The court concluded that the claim was brought …

4. A jury will be able to find Mason’s errand was for the benefit of the employer.

• A jury will be able to find Mason’s errand? Was the errand lost? Oh. A jury will be able to find that Mason’s errand was for …

5. The Reynosa decision shows the implied duty is distinct from any contractual duty.

• The Reynosa decision shows the implied duty? Oh. The Reynosa decision shows that the implied duty is distinct …

Without that, these examples can cause a miscue for the typical reader, who’ll end up having to re-read the sentence to get the intended meaning. So over-deleting that results not in concise, streamlined writing, but in writing that frustrates.

Rather than suggesting (or imposing) a rule for deleting that, I would default to retaining that and removing it only if you’re sure no miscue will result. Use your own editorial judgment or ask a colleague to read and react.

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Wayne Schiess’s columns on legal writing have appeared in Austin Lawyer for more than 11 years. Now they’re compiled in a book: Legal Writing Nerd: Be One.