Category Archives: Usage

Don’t over-delete “that”

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.

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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.

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

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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

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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.