Should we write pre-trial or pretrial? Non-statutory or nonstatutory? Co-sponsor or cosponsor?

As legal writers, we often have to decide whether to use a hyphen for a prefix. By the way, no hyphen in prefix, despite the hyphen in the title; I was just being clever. In this post I’ll discuss the default rule for hyphenating prefixes as well as the exceptions. (FYI: This blog breaks words at the right margin and inserts hyphens I can’t control. Sorry.)

The default rule is to omit most hyphens: pretrial, nonstatutory, cosponsor. According to Joan Magat in The Lawyer’s Editing Manual, the same rule applies to multiracial, nongovernmental, semiliterate, and underutilize. Even when the result is a doubled letter, omitting the hyphen is generally correct, according to Bryan Garner’s Redbook. So interrelate, misspell, overrate, posttrial, preempt, and reelect. Omitting the hyphen can produce words your spell-checker doesn’t recognize, but “they are nonetheless correct,” according to June Casagrande in The Best Punctuation Book, Period.

Now the exceptions.

Certain prefixes always take a hyphen, and Magat and Garner agree on four that require a hyphen in legal writing: all-, ex-, quasi-, and self-. So all-encompassing, all-knowing, ex-convict, ex-president, quasi-contract, quasi-public, self-assessment, and self-serving.

When the prefix precedes a capital letter or a numeral, use a hyphen. Casagrande, Garner, and Magat agree on this: non-American, anti-Semitic, post-1986, and pre-9/11.

Bring in a hyphen when omitting it could create a miscue, an ambiguity, or confusion—because the unhyphenated word looks like another word:

• Judge Kean spent most of her pre-judicial career at Lowery & Townes.
• Forbes rejected the Petitioner’s request to re-sign the contract.
• The incident resulted from an unexpected re-formation of river ice.
• Andrick’s video was meant to re-create the events at issue.

The experts also recommend a hyphen when omitting it could create an awkward or hard-to-pronounce compound. Here you must exercise editorial judgment; as you’ll see, the experts’ examples aren’t always consistent with other guidance. Here are the examples the experts say should be hyphenated:

• Casagrande: anti-inclusive, intra-arterial, ultra-apathetic
• Garner: anti-intellectual, post-sentencing, pro-abstinence
• Magat: co-opt, co-worker, non-odious

Thus, we’ve arrived at our guidelines for hyphenating prefixes.

A no-hyphen approach is preferred, with three exceptions: (1) with all-, ex-, quasi-, and self; (2) before numerals and capital letters; and (3) to avoid awkwardness—exercising your best editorial judgment.

For detailed guidance, see The Chicago Manual of Style § 7.79, which is followed in § 7.85 by a 9-page table table with rules for hyphenating specific prefixes and words. Magat’s book, The Lawyer’s Editing Manual, also contains a list of prefixes that are generally unhyphenated, with exceptions.

I make writing mistakes. My students and colleagues will tell you so. I’m not the world’s greatest proofreader; I’m easily distracted and lazy and hasty. Yet I can be judgmental about others’ mistakes. So I try to soften my judgments and practice patience, hoping it will be reciprocated. Several years ago, I wrote this about mistakes. It contains a confession.

A former student sent me this comment, carried in a major newspaper, from a senior partner at a law firm:

Do not ever for the second time give your senior a piece of writing with a typo or a grammatical mistake. I will take it once and I will tell the junior my set speech. But if it happens again? Well, find out for yourself.

I have three problems with this statement.

1. The speaker is talking about litigation writing. (If you visit the firm’s website and look this person up, you’ll see that the person is a litigator.) My former student rightly points out that this kind of expectation is probably unrealistic for some transactional drafting:

I’m not a bad writer, but far from perfect. On occasion I miss small errors in my work. I might draft a 160-page credit agreement, based on a form that itself had errors. Some of those errors are minor, such as a stray parenthesis, misplaced comma, etc. Others are more serious and could lead to ambiguity. Of course, I try to catch everything, but I don’t think I’ve turned in a perfect draft once yet. Nor have I seen a perfect document yet from other attorneys unless the document is very short.

Perfect work is rare, but perfect work in the context of a 160-page credit agreement is likely impossible on the first draft. Of course, the speaker is thinking of a motion or a brief or a memo. These are rarely more than 50 pages and are often much shorter. So the speaker should have qualified his remarks for the context in which he works.

2. I think the speaker’s statement is hyperbole, intended to scare young lawyers. Of course, you must proofread your work carefully—very carefully. You should try to turn in perfect work every time. But you must acknowledge that it is not possible to turn in perfect work every time. For example, I wrote a 230-page book, which I proofread myself and had two others proofread. I later found 4 typos in it. I was chagrined and dismayed and embarrassed. But that’s life. Perfect work is rare. In truth, it’s unusual for me to read a book—and I read almost exclusively books about writing—and not find at least one mistake. So the speaker should be more realistic. Besides, the speaker’s not perfect either . . .

3. The speaker makes mistakes, too. This is often what those who claim to expect perfect work forget or seem blind to. I read the speaker’s profile on the firm’s website, and I found two mistakes. Granted, they were fine points of punctuation (and I’m not talking about the serial comma, which the speaker does not use, by the way). But they were mistakes according to the Texas Law Review Manual on Usage and Style, The Redbook, and The Chicago Manual of Style.

So there.

What’s the difference between these two examples?

1. Does a conflict of interest exist where attorneys, who are married to each other, represent opposing parties in the same civil matter?

1a. Does a conflict of interest exist where attorneys who are married to each other represent opposing parties in the same civil matter?

In number 1, the clause “who are married to each other” is a nonrestrictive clause because it’s set off with commas. So that clause, or modifier, doesn’t restrict the attorneys involved; rather, it purports to give us information about attorneys. But that doesn’t make sense. Attorneys are married to each other? All attorneys?

In 1a, the clause “who are married to each other” is a restrictive clause because it’s not set off with commas. So that clause restricts the attorneys involved to those who are married to each other, which makes sense.

One more pair:

2. The lawnmower, which is broken, is in the garage.

2a. The lawnmower that is broken is in the garage.

Now we have relative pronouns in addition to the presence or absence of commas to help us.

In number 2, the clause “which is broken” is a nonrestrictive clause because it’s set off with commas. So that clause doesn’t restrict the lawnmower involved; rather, it gives us information about the lawnmower–it is broken. That makes sense, but it’s a different meaning from 2a.

In 2a, the clause “that is broken” is a restrictive clause because it’s not set off with commas. So that clause restricts the lawnmower involved to the one that is broken. By the way, the implication of 2a is that there’s more than one lawnmower around, so the writer/speaker is specifying the one that is broken.

The commas in number 1 are technically incorrect, but the mistake probably isn’t fatal. Most readers would understand that the question refers to attorneys who are married to each other.