Category Archives: Usage

Obituary: WITNESSETH

Witnesseth, Confusing, Long-Lived Legal Archaism

The word witnesseth, a legal term used in deeds, contracts, and other formal documents, passed away Monday after a decades-long decline and what some say were well-deserved attacks. Those close to the word said it died in a legal form pulled up on a smart phone in Little Rock, Arkansas. It was 587 years old.

One of the most enduring Elizabethan archaisms, witnesseth’s late decline represented a steep fall from its heyday. It rode high on the fear of “changing the form” for more than two centuries. It prospered despite challenges, such as one raised in 1744, when a legal scribe first asked a lawyer, “what is this word, and why are there spaces between the letters?”

The deceased in a recent photo.

Witnesseth maintained its entrenched position in legal documents, although it was more and more often relegated to land deeds, until at least 1957, when a busy real-estate lawyer in Waukeegan, Illinois, inadvertently left it out of a draft deed, which a secretary dutifully typed up. Yet the real-estate transaction closed without incident, and witnesseth began its slow decent.

Rumors persist among some hostile to witnesseth that the reports of its death are premature and that it is lying low in old formbooks and county real-estate filings, waiting to be recognized and used again.

Collective Nouns: Singular or Plural?

A collective noun refers to a group of people or things. Group, for example, is a collective noun. Legal writers often have to deal with collective nouns, and here are some of the most common: board, council, court, faculty, government, jury, majority, panel, and staff. When using collective nouns, writers occasionally face questions of subject-verb agreement and pronoun agreement. This post addresses both.

Subject-verb agreement

The key question is whether to treat collective nouns as singular or plural. Should we write the jury is or the jury are? Although a jury, like all collective nouns, is a group of individuals, the better practice is to treat collective nouns as singular and to write the jury is, as well as the council decides, the panel hears, and so on.

But the experts agree that it’s not always that simple. According to Bryan Garner, in the United States, we usually treat collective nouns as a singular unit and use the singular verb. “But if the emphasis is on the individuals in the group, the plural verb form is best.”1 The editors of Merriam-Webster’s English Usage Dictionary agree: “[W]hen the group is considered as a unit, the singular verb is used; when it is thought of as a collection of individuals, the plural verb is used.”2

By the way, British English is different, and I won’t address it here except to say that when I watch a football match (soccer game) with British commentators, it’s always jarring to hear them say, “Chelsea’s team are very talented.”

So in the Unites States, if you’re writing about faculty, you might write this:

a. The faculty [as a singular entity] gratefully acknowledges the assistance of volunteer judges.

But this:

b. The faculty [individually] are of different minds on the subject of pass-fail courses.

Another example:

c. The consultant will study how staff [as a singular entity] in rural hospitals gathers and evaluates the performance of doctors with clinical privileges.

But then this:

d. The staff in rural hospitals [individually] create performance-assessment reports.

As you can see, it can be tricky to decide if you’re thinking of a collective noun singularly or individually, and even more tricky to decide how your reader will perceive it. That’s why the safest practice is to treat collective nouns as singular entities that take singular verbs and to do so consistently within any one document.

A frequent and widely recommended work-around is to use “members” or “members of,” which clarifies the proper verb. So the jury was seated in the hallway becomes the members of the jury were seated in the hallway. And the board meets on the first Thursday becomes the board members meet on the first Thursday. This work-around is useful even if it causes a small loss of concision.

Pronoun agreement

If collective nouns are generally singular, they should take the pronouns it and its, not they, them, or their.

Wrong: The council needed to review the transcript before they could vote.
Right: The council needed to review the transcript before it could vote.

Treating a court as plural is a fairly common error among novice legal writers:

Wrong: The court must first determine whether they have jurisdiction.
Right: The court must first determine whether it has jurisdiction.

This error might arise from the perception that intermediate appellate courts often hear cases in panels of three and that highest courts often hear cases as a body of nine. Yet the court is a singular entity, no matter how many judges make it up. If the writer is thinking of the judges individually, it would be better to write this: The judges must first determine if they have jurisdiction.

Collective nouns are generally singular and take singular verbs and pronouns. If you think you have an exception, go ahead, but use your best editorial judgment and get a second opinion.

[1] Bryan A. Garner, Garner’s Dictionary of Legal Usage 172 (3d ed. 2011).

[2] Merriam-Webster’s Dictionary of English Usage 257 (1994).

Intensifiers Part 3: You’re Literally Killing Me

TexasBarToday_TopTen_Badge_VectorGraphic

Part 3 of 3.

As legal writers, we might be tempted to use intensifiers to bolster our points—to persuade. These days, legal writers might even be tempted to use the word literally. I’ve got some bad news about literally, but I’ve got good news, too. It will make you so happy you’ll literally be walking on air.

Linguists and others who study language agree: In speech, the word literally is becoming an all-purpose intensifier like highly, clearly, and extremely. That’s the bad news, and there’s nothing much we can do about it. Language changes, and sometimes it changes for the worse. (Did you know that long ago, the frozen dessert was called iced cream? Incorrect pronunciation and spelling over time changed it to ice cream. It’s happening with iced tea, right?)

That’s why we hear nonsensical statements like these:

  • he was literally glowing
  • she was literally rolling in dough
  • my head literally exploded

But in legal writing, which values precision, we shouldn’t follow this trend. So even if you’re willing to say, in casual conversation, “My boss is so impatient, I’m literally walking a tightrope,” please don’t use this trendy sense of literally in legal writing. “The delays were such that the buyers were literally banging their heads against a wall.”

Now the good news. I did a search for the word literally in appellate briefs filed in the Austin Court of Appeals, the Texas Court of Criminal Appeals, and the Texas Supreme Court. I got nearly 2000 hits, and I skimmed dozens of them. I couldn’t find any genuinely erroneous uses of literally. There were some close calls, but overwhelmingly, brief writers use literally when they mean . . . literally. Hurray for these:

  • The court concluded that, literally applied, the ordinance’s definition of “nonconforming use” is at odds with the ordinary meaning of that term.
  • Aerofile denied that Hanson’s attempted forfeiture was effective because Hanson failed to strictly and literally comply with the notice provision.
  • The statute can be read both literally and rationally.

Let’s keep it that way.

Intensifiers Part 2: Replace and Specify

TexasBarToday_TopTen_Badge_VectorGraphic

Part 2 of 3.

As legal writers, we might be tempted to use intensifiers to bolster our points—to persuade. Yet often, the better advice is to avoid the intensifier. Last week I suggested dropping the intensifier. Here are two more suggestions.

Replace it.
With some thought, you can delete an intensifier-plus-verb and intensifier-plus-noun constructions and replace them with a single, forceful word. So—

  • completely wrong > inaccurate, incorrect, mistaken, unsound
  • extremely smart > brilliant
  • highly capable > accomplished, proficient
  • quickly went > hustled, sped, rushed
  • very sure > certain

Again, develop an editorial sense. Replacements don’t always work; sometimes the single-word option is loaded. If instead of very bad you write terrible or dreadful, you might interject undesired subjectivity or emotion.

Specify.
Rather than rely on a vague intensifier, legal writers can use details to emphasize. Here’s a classic example:

2. It was very hot.

2a. It was 103 degrees in the shade.

Here’s another example of specifying (with two more persuasion techniques: a dash and a sentence that ends with key words):

3. The transaction at issue obviously did not take place at Eason’s residence.

3a. City detectives set up a controlled purchase with a cooperating defendant at Jay’s Auto Body. It was there that Eason handed over a bag of methamphetamine—not at Eason’s residence.

As you can see, specifying takes more words, and so, as with all writing, exercise editorial judgment. Weigh the longer, specific description against the shorter, vaguer (and weaker) one.

Next week: Part 3 will literally knock your socks off.

Intensifiers Part 1: Are You Blatantly Bolstering?

Part 1 of 3.

As legal writers, we might be tempted to use intensifiers to bolster our points—to persuade. What’s an intensifier? According to Merriam-Webster’s Dictionary of English Usage, it’s a “linguistic element used to give emphasis or additional strength to another word or statement.” Intensifiers can be various parts of speech: adverbs (clearly), adjectives (blatant), participles (raving), and more.

Intensifiers get a lot of bad press, and clearly is king:

  • [Clearly] is so overused in legal writing that one has to wonder if it has any meaning left. (Enquist & Oates, Just Writing)
  • Doctrinaire adverbs such as clearly and obviously are perceived as signaling overcompensation for a weak argument. (Garner, The Winning Brief)
  • When most readers read a sentence that begins with something like obviously, undoubtedly … and so on, they reflexively think the opposite. (Williams, Style: Lessons in Clarity and Grace)

One article on intensifiers in legal writing suggests that overusing intensifiers is bad—or very bad. In a study of U.S. Supreme Court briefs, the authors found that increased intensifier use was correlated with losing, especially for appellants. The authors allege no causal connection—they couldn’t prove it was the intensifiers that lost the cases—but the correlation is interesting. Lance N. Long & William F. Christensen, Clearly, Using Intensifiers Is Very Bad—Or Is It? 45 Idaho L. Rev. 171, 180 (2008).

So what should we do instead of overusing intensifiers? One suggestion here, two more next week, and a discussion of literally in part 3.

Drop it.
Often, a sentence gets stronger without the intensifier. Which of these is more forceful?

1. Clearly, an attorney is not an expert on what is a “Doberman,” and there is no showing in the affidavit that Squires is an expert on Dobermans. It clearly is a fact issue for the trier of fact.

1a. An attorney is not an expert on what is a “Doberman,” and there is no showing in the affidavit that Squires is an expert on Dobermans. It is a fact issue for the trier of fact.

Dropping intensifiers doesn’t always work, and we can’t completely banish them. Some legal standards require them: clearly erroneous, highly offensive. Legal writing entails some qualifying, but good legal writers develop a sense for when they’re appropriately qualifying and when they’re blatantly bolstering.

Two more suggestions next week.