Category Archives: Usage

Leave Behind These Words and Phrases


Here are nine legal words and phrases we can do without.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It

This post is part of my effort to pull legal vocabulary into 2020. We certainly don’t need to sound as though we’re writing in 1908, let alone 1708. So here are a few legal words and phrases we can leave behind.

comes now

A lawyer once asked me to settle a debate at the office: “If there’s one plaintiff, it’s ‘COMES NOW Rodney Jackson, …’ But if there are two plaintiffs, shouldn’t it be ‘COME NOW Rodney and Melinda Jackson, …’?” Of course, I replied that the correct answer was to stop beginning pleadings with this archaic phrase. And drop the ALL-CAPS.

Yet more than a dozen lawyers have told me over the years that they choose to retain comes now in court filings. Why? The convention is so deeply entrenched, they say, that omitting comes now could make them look like novices—like lawyers who don’t know how things are done. I grant the concern but it saddens me a bit.

hereinabove, hereinafter

Almost all the here– words should go (herein, hereto, hereby, etc.) but these two are the most annoying. They’re old, they’re often vague, and they’re multi-syllabic. The legal-word expert Adam Freedman says that they arose from “experimentation. Lawyers and other literate folk enjoyed nothing better … than inventing new words by putting together two or more old ones.”[1] Sometimes you can just omit them, sometimes you can use above and below, and sometimes you can specify what you’re referring to and where to find it.

inter alia

Latin phrases that aren’t terms of art, as this one isn’t, ought to be dropped: vel non, sub judice, sua sponte, and others. Use an everyday-English equivalent: and others, among others, or among other things.

instant case

I still remember the sad look on a third-year student’s face when I suggested that he use this case, the current case, the Jackson case, or even here in place of the instant case. “But the instant case sounds so … legal,” he said. All right. It’s often important for a novice to “sound legal.” But an experienced lawyer can abandon archaic language.

trix suffix words: administratrix, executrix, prosecutrix, testatrix

In 1992, a legal-language expert named David Mellinkoff said these forms were “dying.”[2] We can no longer wait around. Kill them off now. They’re sexist, archaic, and hard to pronounce.

in witness whereof

Harmless—but go ahead and delete this phrase from your form document.

wherefore, premises considered

Standard—but what does it mean? If it means “In light of everything just stated …” why not use “Therefore …”?

know all men by these presents

I’ll let someone else handle this one: Anyone who uses this phrase is an “unregenerate dinosaur” according to legal-drafting expert Ken Adams.[3]

witnesseth

This word has no place in modern legal drafting. If you prepare transactional documents, and you’re afraid to take it out, be brave. And look it up: you don’t have to take my word for it. Bryan Garner calls it an “antiquated relic.”[4]

For further guidance on outdated and useless legal words, see

  • Kenneth A. Adams, A Manual of Style for Contract Drafting
  • Adam Freedman, The Party of the First Part: The Curious World of Legalese
  • Bryan A. Garner, Garner’s Dictionary of Legal Usage
  • David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage
My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It

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[1] Adam Freedman, The Party of the First Part: The Curious World of Legalese 25 (2007).

[2] David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage 600 (1992).

[3] Kenneth A. Adams, Know All Men By These Presents, Adams on Contract Drafting, https://www.adamsdrafting.com/​know-all-men-by-these-presents/

[4] Witnesseth, Black’s Law Dictionary 1839 (10th ed. 2014)

Singular “they”

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

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.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

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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).

Saxon & Romance Words

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:

  • break/damage
  • come/arrive
  • make/create
  • need/require

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:

  • belly/abdomen
  • boss/superior
  • job/position
  • wish/desire

Try it. Here are five Saxon verbs—try to think of the Romance synonyms:

  • ask
  • buy
  • eat
  • see
  • talk

(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.

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[1] H.W. Fowler, The King’s English 1 (1906).

[2] William Strunk, Jr. and E.B. White, The Elements of Style 77 (4th ed. 2000).

[3] Ward Farnsworth, Classical English Style (forthcoming)

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.