LawProse Lesson #207: Three ways to improve a statement of facts.

Three ways to improve a statement of facts.

First, let it progress naturally from beginning to end—almost invariably in chronological order. Just tell the judge your story of the relevant events that gave rise to this legal dispute. Presenting the facts in order gives the judge a more coherent picture of the case.

Second, remove all argument and editorializing. Those don’t belong in a statement of facts. Including them is counterproductive because doing so is inevitably transparent. As if that weren’t enough, argument within a statement of facts may even violate court rules.

Third, unflinchingly include the unfavorable as well as the favorable facts. At best, you lose credibility fast if you unfairly exclude germane facts that don’t support you. And you’ll fail to make a good argument that overcomes them. At worst, the judge will think you’re cherry-picking what to divulge—and maybe even think you’re hiding something from the court.

The statement of facts in a brief gives you an opportunity to shine as a storyteller. Learn the techniques of writing short stories. But never forget you’re dealing in nonfiction!

Further reading:
Garner, The Winning Brief 524–46; 725–28; 739–42 (3d ed. 2014) (with many detailed examples).
Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 93–96 (2008).

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LawProse Lesson #206: Statutory and Contractual Interpretation.

What important skill is most generally lacking among law-school graduates?

Almost certainly this: the ability to develop, hone, and deliver arguments about the interpretation of contracts and statutes. Lawyers often spend months working on text-based cases without realizing that their best argument is the ordinary-meaning canon, the negative-implication canon, the last-antecedent canon, the surplusage canon, or the associated-words canon. Many have never even heard of these canons of construction, though they’re applied in thousands of American cases every year.

Although law schools are largely to blame for this curricular fault, many—such as Harvard—are beginning to reform. But most lawyers who graduated from law school after about 1960 must learn the techniques on their own.

What if your judge isn’t a textualist? Not to worry: all judges are textualists first (“We begin with the words . . .” is a mantra in judicial opinions), even if they then move on to consider other matters, such as their own policy preferences. They all start with the text. Legislative history comes up later if at all.

What about the canons listed above? Here are their meanings:

1. Ordinary-meaning canon: Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.
2. Negative-implication canon. The expression of one thing implies the exclusion of others.
3. Last-antecedent canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.
4. Surplusage canon. If possible, every word and every provision is to be given effect. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.
5. Associated-words canon.
 Associated words bear on one another’s meaning.

If you’d like to know more, Bryan Garner will be teaching “Statutory and Contractual Interpretation” on a nationwide LawProse tour this summer. (Dates will soon be posted on our website.) He’ll be teaching from the book he coauthored with Justice Antonin Scalia: Reading Law: The Interpretation of Legal Texts (2012). The book has already been cited as authority in more than 225 state and federal decisions.

Controversial? Nah—not when it comes to statutes and contracts. Reading Law cites dozens of Supreme Court justices with approval, with timeless examples from Chief Justice John Marshall, Justice Joseph Story, Justice Robert H. Jackson, and Justice Felix Frankfurter. There is praise for Justice John Paul Stevens and Justice Ruth Bader Ginsburg. But most of the 650+ cases are drawn from state supreme courts.

If you want to know how to unlock straightforward but sophisticated arguments about legal texts, the keys aren’t hard to find.

Further reading:
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).

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LawProse Lesson #205: Lay, v.t. vs. lie, v.i.

Lay, v.t. vs. lie, v.i.

These two short verbs can cause tall trouble. Let’s lay down some helpful guidelines so we won’t be accused of lying down on the job.

Lay means “to put down, place, or arrange.” It’s always transitive—it needs a direct object {Please lay the purchase contract on Stan’s desk.}.

Lie means “to recline, be situated.” It’s always intransitive—it can’t take a direct object {I’m going to lie on the bed until the dizziness stops.}.

Using lay instead of lie is one of the most widely known usage errors in speech and writing {She is going to lay [read lie] down in the guest room.} {We were laying [read lying] on the beach yesterday.}. Although this error has become so common that some commentators claim it’s no longer a mistake, using lay without a direct object, in the sense of lie, is nonstandard. People who know the difference will catch the misuse.

A big source of the confusion is the way these verbs are inflected—lay is also the past-tense form of lie:

lay>laid>laid: {Please lay down the weapon.} {He laid the weapon down immediately.} {The problem has been laid to rest.}.

lie>lay>lain: {The nurse told me to lie on the stretcher.} {My mother lay down and took a nap.} {The disease has lain dormant for two years.}.

So both these sentences are correct: “I’m going to lay the baby down for his nap.” and “The baby lay down for his nap at 2:00 p.m.” The first sentence uses the transitive lay in the present tense; the second uses the past tense of intransitive lie. And if you laid the baby down ten minutes ago, he’s lying in his crib now. Yes, it can make your head spin and make you want to lie down or at least lay down your head.

We could go on and on. But we’ll now lay this lesson aside and lie low until next week.

Further reading:
Garner’s Modern American Usage 501–03, 510 (3d ed. 2009).
Garner’s Dictionary of Legal Usage 528, 544 (3d ed. 2011).
The Redbook: A Manual on Legal Style § 12.3, at 290 (3d ed. 2013).

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LawProse Lesson #204: “Lay of the land” or “lie of the land”?

Lay of the land or lie of the land?

Literally, the phrase means “the arrangement of an area’s terrain; topography.” Figuratively, it refers to “the facts of a given situation; the current state of affairs.”

The phrase is an Americanism dating from the late 18th century. From the beginning, it’s been lay of the land—although as soon as it caught on in England, speakers of British English (BrE), beginning about 1860, started “correcting” the phrase to lie of the land. Today the lie form is about twice as common in British print sources.

But in American English (AmE), lay has always been predominant—today by an 8:1 ratio in print sources.

It’s true that using lay as a noun might not seem entirely traditional. But in 1934 the venerable Webster’s Second International Dictionary listed lay (n.) with ten different senses, #6 being “position and arrangement; specif., topographical features and situation; as, the lay of the land.”

The first edition of the Oxford English Dictionary (1933), completed just a year before Webster’s Second, lists the same sense with illustrative quotations from 1819 {lay of the country} and 1864 {lay of the land}—the latter being from Henry David Thoreau.

The British “correction” of the phrase didn’t really take hold in BrE as the established form until the late 1880s.

But there’s no reason for Americans to think that the AmE form is inferior. It has a better lineage than the BrE form.

Golfers have good and bad lies in the fairway; carpet installers know to roll carpets against the lay of the nap; and hens have productive lays when their eggs are discharged. That’s all the examples we’ll give here: this is a clean column.

That’s the linguistic lay of the land.

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Garner’s Usage Tip of the Day: Miscellaneous Entries.

Miscellaneous Entries.

libido. Although dictionaries once recorded /li-BIY-doh/ as the preferred pronunciation, /li-BEE-doh/ is now the established preference in American English.

licorice (/LiK-uh-rish/) is the standard spelling. “Liquorice” is a variant form. This word shouldn’t be confused with its uncommon homophones, “lickerish” (= lascivious, lecherous) and “liquorish” (= tasting like liquor).

lie/lay/lain. So inflected (except when “lie” means “to utter a falsity” — see below). A murderer may “lie in wait.” Yesterday he “lay in wait.” And for several days he has “lain in wait” — e.g.: “The Ramseys say an intruder may have lay [read 'lain'] in wait for hours before killing the 6-year-old beauty queen.” “Ramseys’ Mission: Find the Killer,” Austin Am.-Statesman, 18 Mar. 2000, at B8. In the sense of telling an untruth, the verb is inflected “lie”/”lied”/”lied.”

lie low; lay low. The latter phrase is incorrect.

lien, n. (= a legal right or interest that a creditor has in another’s property, lasting usu. until a debt that it secures is satisfied), is pronounced, most properly, /LEE-uhn/, or commonly but less properly /leen/ or /lin/.

For information about the Language-Change Index click here.

Quotation of the Day: “There is more to our language than just words, but the classic word-book — the dictionary — seems to many people to be the receptacle for the whole language, indeed to be the symbol of it. There seems to be something comforting about having on one’s bookshelf a handy directory to all the words of the language.” Randolph Quirk, “Thinking of Words,” in The Linguist and the English Language 128, 137 (1974).

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LawProse Lesson #203: “Lie low” or “lay low”?

Lie low or lay low?

     Both phrases could be correct—it depends on the tense you are using. Use lie low in the present tense; lay low in the past tense.

Ex.: The celebrity is lying low for a few weeks to avoid news reporters.
Ex.: Last month, that same celebrity lay low to avoid the paparazzi.
Ex.: He has lain low for almost a year.

The base verb used here, of course, is lie, conjugated lie-lay-lain, not the transitive lay as is often misused in phrases such as lie down and lie low.

Two interesting examples of the latter were drawn to our attention by Michael J. Young of Florence, South Carolina. He noted that the Associated Press writer got it wrong in reporting on the arrest of the “wealthy, eccentric” Robert Durst after an HBO documentary based on his life and alleged connection with three murders. Durst had been arrested, the reporters wrote, in a New Orleans hotel “where he had been laying low.” Read lying low.

On the same day, Reuters got it right in a piece on Russian president Vladimir Putin. The reporter said that Putin was scoffing at rumors that he had been in poor health and had to “lie low” for a while.

Further reading:
Garner’s Dictionary of Legal Usage 528, 544 (3d ed. 2011).
Garner’s Modern American Usage 501–03, 510 (3d ed. 2009).
The Redbook: A Manual on Legal Style § 12.3, at 290 (3d ed. 2013).

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LawProse Lesson #202: Parenthetical plurals.

Should you use “(s)” to indicate that a noun could be either singular or plural?

Competent drafters should avoid creating parenthetical plurals and craft better ways to express a thought. A parenthetical plural is formed when an “(s)” is added to the end of a singular noun to indicate that the statement may apply to one or more members of the category.

The practice creates serious drafting problems. Does the noun take a singular or plural verb? If a pronoun refers to the parenthetical plural, should it be singular or plural? And what about nouns that don’t take a simple -s in the plural form (e.g., party)? Using “(s)” as a shortcut produces ungainly, unsightly sentences. For example:

If the defendant(s) fail(s) to comply with the court’s order, the defendant(s) will be held in contempt of court. [One possible revision: If a defendant fails to comply with the court’s order, that defendant will be held in contempt of court.]

When drafting contracts or statutes, prefer the singular over the plural unless the sense is undeniably plural (as when the sentence refers to a practice that is often repeated). Check every plural noun and make sure that it’s really necessary. You’ll enhance the clarity and readability of your documents.

Further reading:
Garner’s Dictionary of Legal Usage 685 (3d ed. 2011).
Garner, Legal Writing in Plain English 135 (2d ed. 2013).

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LawProse Lesson #201: “Subpoena” vs. “subpena”

Why do so many federal statutes use the spelling subpena instead of subpoena?

     Funny thing. It seems to be the result of an old choice made for the Government Printing Office Style Manual. The earliest copy we have at LawProse, the 1926 edition, has no reference to the spelling of this word. But the 1973 edition recommends subpena and subpenaed. The change seems to have come sometime in the 1940s. The heyday for this spelling in all sorts of print sources was 1945 to 1955. Since then, it has dwindled. And in 1984 the GPO Style Manual (as it is abbreviated) changed its preference to the standard spelling subpoena.

So it all depends on when a given statute was enacted.

The midcentury idea, apparently, was to eliminate Latinate ligatures known as “digraphs.” (Some people mistakenly call them “diphthongs”: they’re actually digraphs—two vowels traditionally joined into a single character.) The tendency in American English has been to use spellings such as anesthetic (not anaesthetic), encyclopedia (not encyclopaedia), orthopedic (not orthopaedic), and penitentiary (not poenitentiary), etc.

Some words, though, are resistant. Aesthetic and subpoena are good examples. In 1943, as part of the anti-digraph wave, the hefty Funk & Wagnalls New Standard Unabridged Dictionary of the English Language, in two volumes, listed its main entries under esthetic and subpena. These were poor predictions on the part of some very good lexicographers. Neither American English nor British English has adopted the reformed spellings.

But for a time, the GPO Style Manual adopted them both, so we’re left with some anomalous spellings in our statute books. That all changed in 1984. Shades of George Orwell.

Further reading:
Garner’s Dictionary of Legal Usage 856 (3d ed. 2011).

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LawProse Lesson #200: Which is standard: “toward” or “towards”?

Which is standard: toward or towards?

      In American English, toward has been the usual form in print sources since about 1900. Many usage authorities since then have expressed a strong preference for toward, without the final -s.

The s-less form of the word is consistent with analogous (though less common) directional words such as cityward, downward, forward, outward, seaward, shoreward, and westward. All these forms are standard in British English as well as American English.

But British English makes an exception with towards: since the mid-16th century, the literary convention in Britain has always been to prefer the plus-s form of the word.

So your preference should depend on which of the two major varieties of English you’re using. If you’re American, make it toward. To do otherwise is editorially untoward.

Further reading:
Garner’s Modern American Usage (3d ed. 2009) (under “toward” and “Directional Words.”)

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Garner’s Usage Tip of the Day: load, n.; lode.

load, n.; lode.

Although they have similar etymologies, their meanings have fully diverged. “Load” (in its basic senses) means “a quantity that can be carried at one time” or, by extension, “a burden” {a load of work} {a load off my mind}. “Lode” carries the narrow meaning “a deposit of ore,” as well as the figurative sense “a rich source or supply.”

The correct phrase, then, is “mother lode” (= an abundant supply), not “mother load.” Although dozens of headline writers have used “mother load” as a pun (usually in reference to pregnant women), some have fallen into true error — e.g.:

o “She worked as a computer programmer, but kept plugging away at the music. And finally, she hit the mother load [read 'mother lode'].” Tony Kiss, “Messina Never Gave Up Dream of Music Career,” Asheville Citizen-Times, 3 Nov. 1996, at F1.

o “This site is a mother load [read 'mother lode'] of investing and financial planning information.” Ted Sickinger, “Web Review,” Kansas City Star, 6 Apr. 1997, at F23.

For information about the Language-Change index click here.

Quotation of the Day: “I am convinced that books written mainly to make money do not usually make much, and hence when somebody asks me if he should not write textbooks to make a lot of money, I am tempted to suggest that he get a nice cushy job as a baby sitter to a half dozen juvenile delinquent morons. He may live longer, and he will probably die wealthier.” Charlton Laird, And Gladly Teche 217 (1970).

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