I’ve been reading an inspired and fascinating book by my friend and former colleague, Terri LeClercq. She’s a nationally known legal-writing expert, and she’s written a graphic novel that teaches inmates how to think through a jail or prison problem and then write a grievance about it. It’s called
Prison Grievances: When to Write. How to Write
Please read it and recommend it to anyone you know who is incarcerated.
Get more information here.
Communicating with accuracy and precision is important in legal writing (and legal speaking). Using the right word for your intended meaning aids clarity and enhances credibility. So with the goals of clarity and credibility in mind, I offer a list of confused and misused words, along with explanations.
Some of these explanations may surprise you, and I’ve had a few lawyers disagree with me about some of them. But you don’t have to take my word for it (pun intended). If you disagree with my explanation, do this: look it up on the Web and look it up in a book. If I’m wrong, let me know.
beg the question
The phrase beg the question applies to logic and arguments. One who begs the question assumes as true the point that must be proved or uses as evidence the statement itself: “The reason it is in high demand is that everyone wants it.” That sentence begs the question. But begs the question is now widely used to mean raises the question or [it] makes one wonder. “The witness would not look at the defendant, and that begs the question—was the witness lying?” No, it raises the question.
deep-seated / deep-seeded
A belief or feeling is deep-seated because it has been seated (fit into place) deep within a person. Despite the way it sounds when spoken, and despite the logic of it, the metaphor here is not about planting seeds, so deep-seeded is incorrect.
defuse / diffuse
To diffuse is to spread widely or disperse, and the word is most often used as an adjective: something that is diffuse is spread out, not concentrated. If what you mean is to reduce tension or to lessen danger, you want defuse—literally to remove the fuse. “The CEO tried to defuse criticism of the merger.”
disinterested / uninterested
The distinction between disinterested (unbiased, impartial—literally without an interest in a decision or outcome) and uninterested (not interested, bored) is being lost in ordinary spoken English. But the distinction is worth preserving, especially in law, where we all want our judges to be disinterested but not uninterested.
everyday / every day
If you mean every single day, you want two words: every day. If you mean ordinary and typical, you want one word: everyday. “Almost every day I see writers make the everyday mistake of using everyday to mean every day.”
flesh out / flush out
If an argument is undeveloped or in outline form, you might say it is “skeletal” or “bare bones.” If you want to develop the argument or add details to the outline, you want to flesh out the argument. You want to add meat to what otherwise would be a skeleton or bare bones. That’s where the phrase flesh out comes from. “Your argument lacks detail; you need to flesh it out.” But you don’t want to flush out your argument, which would mean to drive it out or cause it to fly up and away. The proper use of flush out is often seen in discussions of game birds: “The hunters wanted to flush out the quail.”
fortuitous / fortunate
Fortuitous means accidental or by chance. “Seeing Professor Gordon at the airport was entirely fortuitous.” But fortuitous is more and more often being used to mean lucky or propitious. That’s unfortunate. The proper word for lucky is fortunate.
toe the line / tow the line
The correct phrase here is toe the line and is derived from the idea of people lining up—as for a military inspection—and placing their toes on a line. So one who does what is expected and follows the rules is said to toe the line. A similar expression with a similar meaning is toe the mark. The phrase toe the line is more often spoken than written, so it’s easy to see why the confusion arose, but the concept has nothing to do with pulling or towing a line.
Do you live in the land of and/or? Are you Andorian? (The clever name comes from David Elliott, The Orians, the Andians, and the Andorians, 50 Clarity 10, 11 (2004).)
Then it’s time to move. Every source on legal language that discusses and/or advises not to use it. Here’s a sampling:
“And/or is best discarded.” J.K. Aitken, Piesse’s The Elements of Drafting 85 (9th ed. 1995).
“With experience you’ll find that you don’t need and/or.” Bryan A. Garner, Legal Writing in Plain English 112 (2000).
“If the lawyers did invent and/or, they owe it to the common language to atone, by eliminating and/or from the legal vocabulary . . . .” David Mellinkoff, Legal Writing: Sense and Nonsense 56 (1982).
Judges have been even less kind. In fact, some of the harshest things ever said about legal language have been said about and/or.
“[T]he much condemned conjunctive-disjunctive crutch of sloppy thinkers . . . .” Raine v. Drasin, 621 S.W.2d 895, 905 (Ky. 1981).
“[An] abominable invention . . . as devoid of meaning as it is incapable of classification by the rules of grammar and syntax.” Am. Gen. Ins. Co. v. Webster, 118 S.W.2d 1082, 1084 (Tex. Civ. App.—Beaumont 1938, writ dism’d).
“[T]hat befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning . . . .” Employers’ Mut. Liab. Ins. Co. of Wis. v. Tollefsen, 263 N.W. 376, 377 (Wis. 1935).
Why all the vitriol and venom? After all, the phrase does have a reliable meaning. “A and/or B” means “A or B or both.” But there’s ambiguity hidden within the phrase, and not everyone uses the phrase appropriately. The problems with and/or arise from three sources.
First, and by itself can be ambiguous. “The bank may fund A and B.” If the bank chooses to fund A, must it also fund B? Or may the bank fund A but not B? It’s ambiguous, and litigation has ensued.
Second, or by itself can be ambiguous. “The bank may fund A or B.” If the bank chooses to fund A, is it prohibited from funding B? Or may the bank fund both A and B? It’s ambiguous.
To solve the problems created by the ambiguity of and and or, and/or might work, but given its bad reputation, a better approach is to avoid and/or and add clarifying words. See Kenneth A. Adams, A Manual of Style for Contract Drafting 198 (2d ed. 2008). For example:
The bank may fund A and B but not one or the other.
The bank may fund A or B or both.
The bank may fund A or B but not both.
Third, some writers use and/or where it’s inappropriate. For example, imagine a job application that says: “Check here if you cannot work nights and/or weekends.” If you check the box, what does it mean? You cannot work nights? You cannot work weekends? You cannot work either? It’s fatally ambiguous.
But you can’t fix it this way: “Check here if you cannot work nights or weekends or both.” That doesn’t help. You need two check boxes: “Check here if you cannot work nights. Check here if you cannot work weekends.”
Given the three sources of problems with and/or, here’s my advice: Avoid and/or, but don’t assume there’s always an easy fix by writing “A or B or both.” You have to think through the alternatives and be sure what you want to say.
Today, many judges, lawyers, supervisors, and clients will read your writing on a screen instead of on paper. According to a book on the subject of on-screen legal writing, readers behave differently when reading on the screen as compared to reading on paper. Robert Dubose, Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World (2010). Good legal writers know the tendencies of screen readers and write accordingly. In this column, I introduce some screen-reader traits and offer some suggestions.
Here are some tendencies we’re coming to understand about screen readers:
Given these tendencies, what should you do when writing for screen readers? The advice is not surprising and, frankly, would benefit print readers, too.
1. Be brief.
Accommodate screen readers’ brief attention with a brief document. Let me clarify: what I advocate here is really concision. Brief simply means shorter, and anything can be made shorter but cutting content. Concise means as short as possible while preserving content. Sure, some content deserves cutting. But don’t cut crucial content. Instead, preserve necessary content while using as few words as possible. Be concise.
2. Provide summaries.
At the top of the document, as early as the rules and conventions allow, summarize your main points or give the answer with reasons or state your request and support it—whatever the document calls for. In short, provide a substantive summary. I recommend a “substantive” summary rather than a mere roadmap (“Part A presents X; part B discusses Y.”) because the impatient screen reader wants the goods, not just a description of where the goods can be found. A substantive summary that doubles as a roadmap is even better. Do it by presenting the substantive points in the order they’ll appear in the document’s body.
You can also include a mini-summary for every major section of the document and even a single-sentence summary for every paragraph, or what we might call a “topic sentence.”
3. Use headings and subheadings.
Accommodate heavy skimming by making your documents easy to skim. Headings facilitate skimming. Use short, often single-word headings for the main sections of a document: Facts, Argument, Discussion, Analysis, and so on. Use short, sentence-type, explanatory headings for other parts. The headings in this column are examples of short, sentence-type, explanatory headings.
By rule or convention, some legal documents already require explanatory headings, like the assertive point headings in a motion or brief, though you shouldn’t let them get too long. But other documents can benefit from the skim-ability of explanatory headings: email, letters, CLE articles, newsletters, and more.
4. Left-align headings and make them stand out.
Given the top-left preference and the tendency toward skimming, aligning headings and subheadings on the left margin helps screen readers. Headings on the left margin are easy to skim. Centered headings are harder to skim. Centering your main section headings is harmless, but even they can be placed on the left margin. Never center explanatory headings.
To differentiate heading levels, apply a consistent numbering system, use contrasting typefaces (larger size, bold, italics), or indent each lower heading level one additional tab length. If you want to indent your headings, follow these tips:
Ultimately, think about how you read on the screen. Write and layout your text in a way you’d like to read.
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In legal writing, we don’t use superscript ordinals. In other words, we do this:
5th
not this:
5th
(Background: numbers that have the additional letters, like st, nd, rd, and th are called ordinals: 1st, 2nd, 3rd, and 4th. When you shrink the letters and elevate them, they’re called superscript ordinals: 1st, 2nd, 3rd, and 4th.)
So why do many legal documents use superscript ordinals? Because Microsoft Word comes with a default auto-correct setting that automatically converts ordinals to superscript ordinals.
But legal writers shouldn’t accept the Word default for ordinals. Turn it off. Here’s how:
Go to File > Options > Proofing
Click on the “AutoCorrect Options” button
Click on the “AutoFormat As You Type” tab
Uncheck the “Ordinals (1st) with superscript” box
Then:
Click on the “AutoFormat” tab
Uncheck the “Ordinals (1st) with superscript” box
That should do it.
I don’t consider superscript ordinals a glaring mistake. It’s a small distraction at worst. But it’s a symptom of a larger problem. Legal writers should not unthinkingly accept all Word defaults. Take control.