Category Archives: Grammar and Punctuation

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” (as opposed to arguing case law). 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? Was the errand lost? 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.

Rather than suggesting (or imposing) a rule for deleting that, I would default to retaining that and removing it 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.

14 editing tips

Lawyers are professional writers, so they’re professional editors, too. Here are some editing tips I’ve gleaned from experience and the sources cited at the bottom. Send your tips to wayne@legalwriting.net

Admit that bad writing becomes good and good writing becomes great only through editing.
Start composing (writing the first draft) earlier, without waiting to be finished with the research.
Compose freely—avoid editing while composing.
Build in ample time for editing—some suggest half the time on the project—and get in the habit of leaving a lot of time for editing.
Use multiple techniques to trick your mind into not being familiar with your own writing: read aloud, edit from the end to the beginning, edit from the middle to the end and then from the beginning to the middle, edit one line (as opposed to sentence) at a time.
Do some editing in print and some on a screen.
When editing on a screen, alter the line breaks (squeeze in the margins) or enlarge the display size to make the text look less familiar.
Take multiple passes and avoid trying to edit for everything at once: devote each editorial pass to a particular editing task, find or create an approach to editing in stages or passes, be sure the passes address both large-scale and small-scale matters, be sure the passes address both professional legal English prose and legal authority (and citations if any).
Employ an editing checklist—a list of mistakes you make, of required parts the document needs, and of formatting and other matters to check: find a recommended editing checklist or create your own. As you master certain techniques and eliminate those glitches from your drafts, delete them, move on to other matters, and add them to your evolving checklist.
Use the Search or Find function to search the document for every instance of various items, verifying that each is correct: search for every apostrophe, search for every quotation mark, search for every colon, search for every semicolon, search for every instance of –ly (thereby locating many adverbs and giving yourself a chance to eliminate weak adverbs). Add searches that are tailored to your writing or to the particular document.
Employ the spell-checker effectively: learn its settings and set them to your preferences.
Employ the grammar-checker wisely: change its settings and identify the things it’s good at detecting and the things it’s terrible at.
Ask a trusted colleague to edit the document.
Use a commercial application to help you edit.

Sources

Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer

Michael H. Frost & Paul A. Bateman, Writing Deskbook for Administrative Judges

Bryan A. Garner, Garner’s Dictionary of Legal Usage

Debra Hart May, Proofreading, Plain and Simple

Megan McAlpin, Beyond the First Draft

Wayne Schiess & Elana Einhorn, The Five-Pass Approach to Appellate Editing, 27 Appellate Advocate 41 (2015)

Beginning with “however”?

“My boss [professor, English teacher] told me never to begin a sentence with however.”

I’ve heard this comment a number of times from law students and lawyers, and it’s often followed by a sincere “Why?” In this post I’ll discuss where this advice comes from and suggest that it’s a stylistic suggestion, not a rule.

The most likely source of this prohibition is The Elements of Style by Strunk and White. Their advice against beginning with however is consistent through four editions: “Avoid starting a sentence with however when the meaning is ‘nevertheless.’”[1] Why that advice? Strunk and White believed that when however comes first, it means “in whatever way” or “to whatever extent.”[2] Here’s a pair of examples that show what they were thinking:

a. However it turns out, the policy will cover the loss.
b. However, it turns out the policy will cover the loss.

In example a, however means “in whatever way,” but in b it means “nevertheless.” What distinguishes the meanings is the comma after however in example b. Apparently, Strunk and White worried that young writers (The Elements of Style is for college students, after all) would include or omit the comma incorrectly, creating an ambiguous however—hence the prohibition. Under the prohibition, when you mean “nevertheless,” you must move however into the sentence and set it off with commas. Here, examples c and d follow the rule against beginning with however, and example e breaks it.

c. The brief, however, does not address personal jurisdiction.
d. The brief does not, however, address personal jurisdiction.
e. However, the brief does not address personal jurisdiction.

Yet in reality, there’s no rule against beginning with however. According to Bryan Garner, beginning with however is “not a grammatical error.”[3] Merriam Webster’s Dictionary of English Usage declares that “there is no absolute rule for the placement of however.”[4] And Terri LeClercq says you may “use however in any position.”[5]

So for the meaning “nevertheless” or “on the other hand,” it’s fine to begin with however [plus a comma]. Legal writers can master comma rules sufficiently well to avoid the ambiguity Strunk and White feared. And beginning with however is not only grammatically justified, it has the advantage of signaling contrast for readers immediately, rather than later in the sentence. For example:

g. We closed the deal on Thursday. However, the payment arrived on Friday.

Of course, you can also place however mid-sentence to create desired emphasis, as we saw in examples c and d above. Just be sure that if you use a pair of commas, however isn’t separating independent clauses, which would require a semicolon and comma.

h. Right: We closed the deal on Thursday. The payment, however, arrived on Friday.
i. Right: We closed the deal on Thursday; however, the payment arrived on Friday.
j. Wrong: We closed the deal on Thursday, however, the payment arrived on Friday.

Example j is a run-on sentence or comma splice, an error I occasionally see in legal writing. Of course, you could use but in these sentences and simplify the punctuation while punching up the transition. In fact, if there’s a stylistically justified reason to avoid beginning with however, it’s that however is a heavy, multi-syllabic transition.

k. We closed the deal on Thursday, but the payment arrived on Friday.
l. We closed the deal on Thursday. But the payment arrived on Friday.

So if your boss or professor tells you not to begin with however, think of it as a stylistic suggestion—but one you’re required to follow. Otherwise, place however where it creates the emphasis you want, even if that’s at the beginning. And consider but.[6]

_____

William Strunk Jr. & E.B. White, The Elements of Style 48 (4th ed. 2000).
Id. at 49.
Bryan A. Garner, Garner’s Dictionary of Legal Usage 415 (3d ed. 2011).
Merriam Webster’s Dictionary of English Usage 515 (1994).
Terri LeClercq, Expert Legal Writing 180 (1995).
Wayne Schiess, Beginning with But, Austin Lawyer 11 (July/August 2013).

Tips for Concision 12: Revise unnecessary nominalizations.

A nominalization is a noun that could have been a verb.

For example, when nominalized, the verb pay becomes payment. To function as a verb, the noun payment needs help, so we write make a payment. Legal writing is full of these nominalized constructions:

enter a settlement > settle
bring suit against > sue
provide an explanation > explain
achieve a reduction > reduce
conduct an analysis > analyze

Nominalizations are so common in legal writing that experts have coined plainer terms:

Nominalizations aren’t wrong, just wordy. We lawyers like them, I think, because they sound serious and formal. But when you have a choice, the plain verb form is always more concise than the nominalized form. What’s more, the verb form is more energetic. So when you implement a revision (revise) for nominalizations, you get vigor as well as concision.

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).