Get the book: Legal Writing Nerd: Be One.
In reading about writing, I’ve run across the following advice
- H.W. Fowler: “Prefer the Saxon word to the Romance.”1
- Strunk & White: “Anglo-Saxon is a livelier tongue than Latin, so use Anglo-Saxon words.”2
But I never paid much attention because I didn’t know what it meant. When I finally learned, from Classical English Style by Ward Farnsworth,3 I saw that the advice could apply to legal writing, too.
Modern English contains words of many origins, but two key sources are Anglo-Saxon and Latin; many words of Latin origin are also French and are sometimes referred to as words of “Romance” origin. Yes, I’m skipping the history lesson, but some common examples can help make the point. Here are four pairs in which the first is of Anglo-Saxon origin and the second is of Latin/French/Romance origin:
No, they’re not perfect synonyms, but we can immediately make some generalizations: Saxon words tend to be shorter—often single syllable, and harder in sound; they also tend to be concrete rather than abstract, and less formal, too. One way to put it is that Saxon words are plain, and Romance words are fancy, as in these Saxon/Romance noun pairs:
Try it. Here are five Saxon verbs—try to think of the Romance synonyms:
(Answers at the end of this post.)
What can we do with this knowledge? The recommendation is not to replace every Romance word with a Saxon word—the best writing advice is rarely always or never. Instead, generally default to Saxon words but use your editorial judgment, considering audience, tone, legal terms, and subtleties of meaning. Here are some before-and-after examples with comments.
Before: The City Planner agreed that Hamet’s lot was adjacent to the single-family homes.
After: The City Planner agreed that Hamet’s lot was next to the single-family homes.
- This is a sensible edit that substitutes a shorter Saxon word for a longer Romance word, making the text a bit more readable.
Before: Castillo asserts that a spouse has no constitutional right to the effective assistance of counsel in a divorce suit.
After: Castillo asserts that a spouse has no constitutional right to the effective help of counsel in a divorce suit.
- Probably not a good edit. “Effective assistance of counsel” is a standard legal phrase. Don’t replace Romance with Saxon when the Romance term is, or is part of, standard legal language.
Before: But a video camera won’t prevaricate.
After: But a video camera won’t lie.
- This is a solid edit. The example is from an appellate brief, and in that context, if you’re willing to begin a sentence with but and use a contraction, the Saxon lie delivers more force than the Romance prevaricate.
You might reasonably ask why it helps to know that the plain word is Saxon and the fancy word is Romance. Can’t we just use plainer, simpler words when possible? Yes, you can. But I hope this will help raise your writing IQ.
Plus, there’s more to know about Saxon and Romance words in legal writing, and I’ll continue the discussion in the next post. For now, put Saxon/Romance (or just fancy/plain) on your writing radar. Start to notice when you use a fancy Romance word when you could use a plain Saxon one.
Quiz answers: ask/inquire, buy/purchase, see/observe, eat/consume, talk/converse.
Get the book: Legal Writing Nerd: Be One.
 H.W. Fowler, The King’s English 1 (1906).
 William Strunk, Jr. and E.B. White, The Elements of Style 77 (4th ed. 2000).
 Ward Farnsworth, Classical English Style (forthcoming)
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.” 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? 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.
So rather than a rule for deleting that, I would default to retaining that and remove it when editing only if you’re sure no miscue will result. Use your own editorial judgment or ask a colleague to read and react.
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.
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?”
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.
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.
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.
b. The faculty [individually] are of different minds on the subject of pass-fail courses.
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.
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.
 Bryan A. Garner, Garner’s Dictionary of Legal Usage 172 (3d ed. 2011).
 Merriam-Webster’s Dictionary of English Usage 257 (1994).