Category Archives: Grammar and Punctuation

Over-simplified writing advice, 3

Part 3 of 4

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I recently read some writing advice offered by a capable lawyer with 10 years’ experience. The advice was offered in absolute terms, and I thought it was oversimplified. Here’s the advice with my own take.

“Never use passive voice.”

It would be difficult to follow this advice literally, and it’s not necessary to write a memo or motion or brief and never use the passive voice.[1] Better advice for the passive voice would be avoid defaulting to the passive voice—use it sparingly but deliberately. I’ve written about the passive voice here:

In that post, I pointed out the drawbacks of the passive voice: that it can be wordy and dry and that it’s overused in legal writing. But I also acknowledged that it has its place. We shouldn’t forbid all passive-voice constructions; the passive voice has legitimate uses, and here are three.

1. When the doer of the action is unknown or irrelevant: The police were notified.

  • We don’t know or care who notified the police; we’re just saying they were notified.

2. When the key focus is on the recipient of the action, not the doer of the action: Treyco’s account was frozen, not Mercury’s account.

  • This sentence focuses on which account was frozen, not on who did the freezing.

3. To avoid the appearance of responsibility: The claim files had been deleted.

  • This sentence hides the one who did the deleting. Avoiding the appearance of responsibility is occasionally useful in legal writing, but if you use the passive voice to hide responsibility a lot, your readers will figure it out.

Again, my view is that for high-caliber, sophisticated legal writing, absolute prohibitions typically aren’t the best advice. Inform yourself about the advice, consider your audience and purpose, and exercise your editorial judgment.

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[1] In fact, in an example the lawyer displayed for another purpose, there were three uses of the passive voice in the first four sentences. All three uses were appropriate; I’m just pointing out that it’s not reasonable to advise, “Never use passive voice.”

Beginning with “but”

There’s no rule against beginning a sentence with but.

Sure, it’s a wise admonition from middle-school English teachers that novice writers avoid beginning a series of sentences with but.

  • In July we went to Six Flags. But it rained that day. But my mom said we could go again later. But by August, we didn’t have time. But I really wanted to go.

In high school, many English teachers embrace the beginning but. My son’s 9th-grade English teacher included “beginning with a conjunction” in a list of writing techniques, offering this example, But how could this be? and requiring students to create their own examples.

What? Teaching kids it’s okay to begin a sentence with but? No wonder writing skills are in decline and college students (not to mention law students) don’t write well.

But wait.

I applaud this high-school teacher, and he’s in line with the general view of numerous writing authorities.

I’ve made this point before: Lite Connectors, Austin Lawyer 13 (Dec. 2008 / Jan. 2009). I won’t rehash the sources I quoted there, but I’ll refer you to Bryan A. Garner, On Beginning Sentences with But, Mich. B.J. 43 (Oct. 2003); The Chicago Manual of Style (“a perfectly proper word to open a sentence”); and the Internet, where a Google search for “beginning with but” turns up many reputable authorities recommending the practice.

As with many writing “rules,” the truth is that beginning with but isn’t about wrong or right; it’s about formality, emphasis, and style. So don’t uncritically apply this nonrule. Think about your writing goals and options and decide how you want to use the language.

Let’s start with formality. Although we should be comfortable beginning with but in e-mail messages, print correspondence, and inter-office memos, some lawyers avoid the practice in formal documents like motions, briefs, and judicial opinions. Yet the technique has been used in formal legal documents for centuries. Here are some examples.

From a judicial opinion in 2013:

  • “But this case has nothing to do with federalism.” City of Arlington v. FCC, 569 U.S. 290, 305 (2013).

From a judicial opinion in 1901:

  • “But this is not sufficient.” Colburn v. Grant, 181 U.S. 601, 607 (1901).

From a judicial opinion in 1793:

“But this redress goes only half way.” Chisholm v. Georgia, 2 U.S. 419, 422 (1793).

From an appellate brief in 2003:

  • “But the EPA cannot claim that ADEC’s decision was unreasoned.” Alaska Dept. of Envtl. Conservation v. EPA, 2003 WL 2010655 at 46 (U.S. Pet. Brief 2003).

And from the U.S. Constitution:

  • “But in all such Cases the Votes of both Houses shall be determined by yeas and Nays . . . .” U.S. Const. art. I, § 7.

In fact, the Constitution has seven sentences beginning with but.

If we accept that beginning with but is appropriate for formal legal documents, then it becomes a tool we can use to manage emphasis. Using the example from Arlington v. FCC, note the differing emphases in these three versions:

  1. But this case has nothing to do with federalism. (succinctly emphasizes the contrast)
  2. However, this case has nothing to do with federalism. (contrasts but moves more slowly)
  3. This case, however, has nothing to do with federalism. (even slower and emphasizes this case)

You can do more than use the technique for emphasis. Once you’re comfortable beginning with but, you can use it to create readable, crisp transitions that quickly orient the reader to a change of direction. For crisp transitions, yet is a great word to begin with, too.

From a judicial opinion in 1968:

  • “Yet we see no possible rational basis.” Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73, 75 (1968).

Yes, you can begin with however or in contrast or on the other hand. They’re fine. But now we know that beginning with but is fine for formal legal documents, gives us a tool for managing emphasis, and makes a great connector.

After all, there’s no rule against beginning a sentence with but.

A View of Seven Writing “Rules”

Based on 200 responses from people who teach legal writing:


It’s a rule
Sensible
suggestion
Mistaken
or misguided
Do not begin a sentence with but. 5% 26% 69%
Do not begin a sentence with and. 11% 28% 61%
Do not begin a sentence with however. 1% 22% 77%
Do not end a sentence with a preposition. 16% 37% 47%
Do not split an infinitive. 9% 32% 59%
Do not split a verb phrase. 2% 26% 72%
Do not separate a be verb from its complement. 3% 21% 76%

Here’s what I think:

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Both parallel and pleasing

Mastering correlative conjunctions

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Have you ever given much thought to the pairs of words we use to create parallel constructions that make for pleasing prose? Like this:

  • The argument was not only long but also boring.

and this:

  • Counsel may either agree with or oppose the decision.

The boldface words are called correlative conjunctions, and they come in pairs. Here are the most common:

  • both … and
  • either … or
  • neither … nor
  • not only … but also

Those are the most commonly used correlative conjunctions, but there are others. Some sources add these:

  • if … then
  • just as … so [also]
  • whether … or

Legal-writing expert Bryan Garner lists six more for a total of 13.[1]

Here I’ll focus on the four most common and address two rules professional legal writers follow when using correlative conjunctions.

The most important rule is that the part of speech that follows the first conjunction must also follow the second. That is, if a verb follows the first conjunction in the pair, a verb must follow the second conjunction. So below, A and B must be the same part of speech:

  • both A … and B
  • either A … or B
  • neither A … nor B
  • not only A … but also B

A and B must be syntactically identical: both nouns, both verbs, both prepositions, and so on. Some examples:

Not this:    Many lawyers are not only smart but also think creatively.

  • Smart (adjective) and think (verb) are not the same part of speech.

 But this:    Many lawyers are not only smart but also creative.

  • Smart and creative are both adjectives.

Another example:

Not this:    The court was neither willing to look at the owner’s acts in creating a hazard nor at the dangers created when customers knocked items onto the floor.

  • The faulty correlative parallelism arises because neither precedes willing (verb) and nor precedes at (preposition).

 But this:    The court was willing neither to look at the owner’s acts in creating a hazard nor to consider the dangers created when customers knocked items onto the floor.

  • The correlative conjunctions are now parallel: neither to look … nor to consider.

 Or this:     The court was willing to consider neither the owner’s acts in creating a hazard nor  the dangers created when customers knocked items onto the floor.

  • The correlatives are parallel: neither the … nor the.

On to the second rule. A minor writing error occurs when writers use nor for the second phrase or clause in a sentence that did not begin with a phrase or clause using neither, like this:

  • The Court did not review the pleadings nor discuss the arguments.

That example misuses nor. Why? Bryan Garner says that in these constructions, “or is generally better than nor.” The initial negative—not in our example, “carries through to all the elements ….”[2] So the sentence is preferably written this way:

  • The Court did not review the pleadings or discuss the arguments.

This problem with nor goes away if you break the one sentence into two and are willing to begin with nor:

  • The Court did not review the pleadings. Nor did it discuss the arguments.

One more pointer. Don’t forget that with constructions using or or nor, the verb agrees in number with the nearest subject—the one right before the verb. So in the following examples, the verb check should agree with husband:

Not this:    Every night, either the defendant or her husband check that the store alarm is set.

But this:    Every night, either the defendant or her husband checks that the store alarm is set.

Granted, the rules discussed here are fine points, but professional legal writers follow them because they create parallel structures that are clear and pleasing to read.

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[1] Bryan A. Garner, Garner’s Modern English Usage 225 (4th ed. 2016).

[2] Id. at 632.

Singular “they”

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It’s catching on, even in legal writing.

Can we use the plural pronoun they to refer to a singular person whose gender is unspecified? Can we do this:

  • The buyer might change their mind.
  • Every vehicle owner must have their vehicle inspected annually.
  • Always keep the reader in mind and try to meet their expectations.

Well, in speech and informal writing, many of us are already using this “singular they.” The singular pronouns in English—she, her, hers and he, him, his—are gendered, and if you don’t know the gender of the unspecified antecedent (buyer, owner, reader), you don’t know what pronoun to use, so we use they.

You could default to he, him, his. But there’s broad agreement that doing so is sexist, and many careful writers avoid defaulting to male pronouns for that reason. Still, using male pronouns for gender-unspecified antecedents is an established convention and one that some legal writers follow.

You could switch to the female, she, her, hers, and some writers do. That convention isn’t as common in legal writing, and because it isn’t common, it might attract more attention than you want.

You could use he or she or he/she each time. These pairs are entirely appropriate in formal legal writing, and they’re used regularly. For me, they can become tedious and distracting after a while, but they’re acceptable. By the way, a case-law search turned up a few instances of s/he, which, although used in other genres, still isn’t common in legal writing.

If those options don’t appeal to you, what should you do in formal legal writing? Two suggestions.

First, you can write around the problem every time it comes up. That takes some thought and effort as you edit, but with practice it becomes second nature. And writing around the problem is unlikely to distract readers. Some examples—

Pluralize—then the plural pronoun works just fine:

  • All vehicle owners must have their vehicles inspected annually.
  • Always keep your readers in mind and try to meet their expectations.

Repeat—being careful about potentially distracting repetition:

  • Every vehicle owner must have the owner’s vehicle inspected annually.
  • Always keep the reader in mind and try to meet the reader’s expectations.

Rephrase—to avoid the need for a pronoun:

  • The buyer might have a change of mind.
  • Every vehicle owner must have the vehicle inspected annually.

In my own writing, I’ve found that these three techniques work well.

Second, you could jump on the “singular theybandwagon. That’s the position of two authors of a Michigan Bar Journal article called, “Evolving They.”[1] Brad Charles, a legal-writing professor, and Thomas Myers, a Michigan Supreme Court staff attorney, say the time has come to embrace the singular they: “More and more writing experts and guides are trumpeting that the once-plural-only pronoun may now be used as a singular pronoun .…”[2]

The authors cite as some of the trumpeting sources The American Dialect Society, The Washington Post’s style guide, and the AP Stylebook—which allows the singular they in “limited cases.”[3] The authors also note that Justice Sonia Sotomayor used a singular they in her majority opinion in Lockhart v. Unites States from 2016: “Section 2252(b)(2)’s list is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if they had started from scratch.”[4]

What do I do? I still write around the problem in formal documents, and I tell my students to check with their supervisor and then do what the supervisor says.

Finally, Charles and Myers encourage legal writers to respect a person’s preferred pronouns, acknowledging that some prefer they, them, their to the gendered pronouns. I encourage legal writers to respect those preferences, too.

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[1] Brad Charles & Thomas Myers, Evolving They, 98 Mich. B.J. 38 (June 2019).

[2] Id. at 38.

[3] Id. at 39.

[4] Lockhart v. United States, 136 S. Ct. 958, 966 (2016).