Language’’ is a regular feature of the Michigan Bar Journal,
edited by Joseph Kimble for the Bar Journal Advisory Board’s Plain
English Committee. The assistant editor is George Hathaway. The
committee seeks to improve the clarity of legal writing and the
public opinion of lawyers by eliminating legalese. Want to contribute
a plain English article? Contact Prof. Kimble at Thomas Cooley Law
School, P.O. Box 13038, Lansing, MI 48901. For information about
the Plain English Committee, see our website—http://www.michbar.org/generalinfo/plainenglish/home.cfm.
itself needs words.
an astonishing vocabulary exceeding 600,000 words, the English language
is the most expansive in human history. Of course, no one has mastered
600,000 words, but lawyers probably have a larger vocabulary than most.
since law is especially language-dependent, lawyers are usually more adept
than most at using words. Unfortunately, lawyers are also adept at misusing
words. Certain misuses—such as those discussed below—are discouragingly
phrase is a favorite among lawyers—but only among lawyers. Laypeople rarely
use it. If only it was as rare in the law, for it is clunky and often
ambiguous. It can mean, for example, by, under, in accordance with,
in compliance with, or in carrying out.
bring this lawsuit pursuant to [read under] the Tort Claims Act.
defendant was held pursuant to [in accordance with] the arrest
to [According to] the contract, the seller must forfeit the deposit.
to [In carrying out] the mandate, the trial court entered judgment.
should be used in restrictive clauses, while which (preceded
by a comma) should be used in nonrestrictive clauses. A restrictive clause
is essential to the meaning of the sentence. A nonrestrictive clause could
be omitted without affecting the sentence’s meaning, because it adds supplemental,
often use which when they should use that:
which [read that] support this rule are too numerous to list.
prosecutor wanted a jury which [that] would favor the death penalty.
Garner has offered two examples in which correct usage of that and
which is essential to meaning:
the cases that were decided before the 1995 legislation support this argument.
the cases, which were decided before the 1995 legislation, support this
Garner explains: ‘‘The first sentence implies that some cases decided
after the 1995 legislation don’t support the argument. The second implies
that no cases were decided after the 1995 legislation:’’
it is often acceptable to use while for although, since
both can suggest a contrast. But be cautious: while also carries
a connotation of temporality.
she laughed at her own joke, she felt guilty.
this mean that she felt guilty only during the time that she laughed?
Or does it mean that she laughed even though she felt guilty? To avoid
this temporal ambiguity, it is often better to choose although over
speaking, however can he used to start a sentence. But the simpler,
cleaner word but is preferable. However works better in
mid-sentence, as in this example:
seems unlikely, however, that Congress intended that result.
meaning of however is always appropriate at the start of a sentence:
you read the statute [meaning in whatever way you read the statute], you
must agree that it is poorly drafted.
many times have you seen prose like this: ‘‘The negligence of Defendant
Jones and/or Defendant Smith proximately caused Plaintiff’s injuries’’?
Lawyers think they are being precise by including both the conjunctive
and and the disjunctive or. But courts have not viewed this
phrase as precise, calling it, among other things, ‘‘a verbal monstrosity,’’
‘‘a befuddling, nameless thing,’’ and an ‘‘abominable invention.’’
Garner points out, the word or usually connotes and as well.
So often, you can leave out the and. Overall, it is better to say
‘‘Defendant Jones or Defendant Smith or both’’ if you absolutely must
convey both the conjunctive and the disjunctive.
are crutch words that lend awkwardness, not precision. There is no need
to say ‘‘To the Honorable Judge of Said Court.’’ Just say ‘‘To the Honorable
Court.’’ Don’t say ‘‘The said witness saw the said defendant run the light.’’
Simply say ‘‘The witness saw the defendant run the light.’’
say ‘‘The pleading is filed by tendering same to the clerk:’’ Use common
English and say ‘‘The pleading is filed by tendering it to the clerk.’’
uses of the word whether do not require the qualifier or not,
since whether implies or not. Thus, you can usually
omit or not as superfluous.
is the client’s decision whether or not [read whether] to settle.
not should be included when whether or not means ‘‘regardless
game will be played whether or not it rains.
Hs a verb usually meaning ‘‘to influence’’ or ‘‘to have an effect
on.’’ Effect is usually a noun meaning ‘‘a result or consequence:’’
Sometimes effect is used as a verb meaning ‘‘to bring about, accomplish:’’
ruling did not affect him.
ruling had no effect.
ruling effected a change in the law.
means ‘‘to suggest;’’ infer means ‘‘to deduce:’’
the legislative history, the court inferred Congress’s intent.
legislative history implies that Congress meant something else.
course, the preceding list merely scratches the surface. For more complete
treatment, consult any of Bryan Garner’s books, such as The Redbook,
A Manual on Legal Style and A Dictionary of Modern Legal Usage.
2003 Defense Research Institute, Inc. First published in the January 2003
issue of For the Defense.