On grammar & usage for lawyers

In lieu of the regular Thursday grammar/usage advice, I’m going to talk about the philosophy that I apply in giving such advice. I think that it may be useful to you. It will at least help you to understand my perspective, which will help you decide whether to take the other advice or not.

Without getting into too much detail, then, and oversimplifying a lot, here is the situation. There is and has been for a long time a war going on in English grammar and usage. The war is between prescriptivists (who tell people rules of grammar and usage) and descriptivists (who describe the language as it is actually used by competent native speakers). Each side indulges in some unfair caricature of the other. For example, some Ps say that Ds are “hey, dude, anything goes” slackers who don’t believe that anything that anyone writes can possibly be ungrammatical (this is false); and some Ds say that Ps are uptight schoolmarms working out their repressions by imposing made-up rules on others (also false).

A typical P v. D conversation about a point of grammar may go like this:

P: “That” should only be used to mark a restrictive clause, and doesn’t take a comma. “Which” should only be used to mark a nonrestrictive clause, and must be preceded by a comma.

D: That’s not true. That rule was actually invented by E.B. White in a late edition of Strunk & White, and he didn’t even follow it himself. In fact, masters of English prose—great authors—ignore the so-called “that/which” rule.

P: Well, they must not know any better. The rule makes sense. Everyone should follow it.

D: You are a pedantic fossil.

P: You are a filthy anarchist.

[And so on.]

Ds tend be linguists, with PhDs, and write dictionaries. Ps tend to be lovers of English with far more varied credentials (journalists, writers, bloggers, etc.), and write style books. When they fight about the facts, Ds are usually right. They certainly are about the that/which rule, which is no rule at all.

When I’m giving advice on this blog, though, things are much simpler. I am advising lawyers about how to write legal briefs. As a brief-writer, you are writing for a very narrow audience. You are writing on behalf of a client, to persuade one person—or at most a small handful of people—of a few points. You must not lose ground because of some prejudice on the part of your audience. If the judge erroneously believes that adherence to some made-up grammar rule is a mark of literacy, then you should follow it. If the judge believes that Courier is the finest typeface ever designed, you should print your briefs in it. If the judge wants your briefs in crayon, break out your finest burnt umber and have at it.

Thus I try to advise you about genuine grammatical errors about which pretty much everyone would agree (such as that “it’s” means “it is” and never “the one belonging to it”). When there is a “rule” of usage that is wrong, but is widely believed to be right among educated people (such as that/which), I’ll recommend that you use it, so that you don’t lose points with the judge. We’ll play it safe here. But I’ll tell you when I’m recommending something controversial.

Just don’t go out into the world proclaiming the that/which rule, and pointing to this blog as an authority in its favor. And don’t write the Great American Novel following every rule recommended herein. Your fellow great authors don’t.

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4 Responses

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  1. You and your readers may be interested to see what David Crystal has to say on the matter: http://david-crystal.blogspot.co.uk/2013/05/on-question-thatwhich-interests-people.html

  2. Hunh. OK if I use Caribbean Green instead of Burnt Umber–which appears to have been retired? (Good lord: there is actually a Wikipedia page on the subject of Crayola Colors!
    http://en.wikipedia.org/wiki/List_of_Crayola_crayon_colors
    Thank you, Wikipedia!}

  3. Many years ago I used to get copies of the pleadings of some of the best lawyers in the country, and from some of the most famous or well-known cases, to see how the top lawyers wrote their pleadings. It was very instructive and I think I learned a lot. One idea I had, which I’ve never yet seen, is to create a book, or today an e-book or database, of model pleadings, briefs, etc. In my mind, such graphic examples of good legal writing would go a lot further to helping lawyers write well and persuasively, than posts such as here which simply relate basic grammar or compsition rules, etc.

    Its the old “show me” rule whereby we can see firsthand examples of great legal writing. Some books are good where a few examples can be seen. But a database or blog with a wide variety of examples for difference pleadings would be great.

    I am still appalled when I see young lawyers who don’t even know how to set up a balanced caption, and then open the motion with the key point(s) of their argument(s). One would think that most law schools have better legal writing focus; the reality is that many do not. They presume young lawyers will easily pick it all up once out in practice.

    I suggest you start a “showcase” of award-winning type motions, pleadings and brief, etc, and lets get some examples to look at that everyone can save and reread (and hopefully share with others) in the future to get their skills refined. Repetition is the mother of all skills, even if it starts with repetitive reading before one starts writing. That’s what I did, and now it all comes easy and flows out — after 25 years of practice.

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