LawProse Lesson #221: The fallacy of intelligibility.

The fallacy of intelligibility.

Several readers wrote about last week’s lesson to say that it matters not one whit whether you “cite a case” or “cite to a case.” They said: “Everybody knows what it means.”

That’s an interesting line of argument. You’ll encounter it often in usage circles, but not among those who prize fastidiousness with language. True, language is an arbitrary set of conventions, and there is no logical reason why we say “contrary to” instead of “contrary of” or “contrary with.” It’s largely a matter of linguistic custom. Educated speakers of English are expected to know which preposition to use with “contrary.” It’s a linguistic marker.

There is some logic behind preferring “couldn’t care less” to “could care less” (are you trying to say that you do care?); this particular phrase, like so many others, is also a linguistic marker. Do you think that idiosyncrasy is a form of government? That maelstrom is a kind of storm? That a bellwether is an omen of bad (or even good) weather? These, too, are linguistic markers. There are thousands of them.

Few of these markers lead to real confusion. Rather, they may result in a loss of credibility for the speaker or writer. Nonstandard, ungrammatical language irks educated readers. It distracts them and makes them less likely, even unwilling, to align themselves with you. Wrong words are like wrong notes in music: they spoil the tune. And wrong words make readers stop thinking about your message and start pondering your educational deficits.

If anyone tells you otherwise (that is, if someone says it don’t make no never-mind), don’t believe it.

Further reading:

Garner’s Modern American Usage 154-56 (3d ed. 2009) (s.v. class distinctions).

Garner’s Dictionary of Legal Usage 158-59 (3d ed. 2011).

The Chicago Manual of Style (16th ed. 2010).

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LawProse Lesson #220: Is the verb “cite” transitive or intransitive?

Is the verb “cite” transitive or intransitive?

For most of its history, the verb cite (dating from the 15th century) has been a transitive verb; that is, it takes a direct object. For example, a lawyer cites a case or a police officer cites a driver for a traffic violation.

      I could cite plenty of authorities for that assertion, including dictionaries right up to the latest Merriam-Webster’s Collegiate (11th ed. 2011). That book, not known for being a stickler when it comes to rolling with the flow on changing usage, still lists cite as a transitive verb only.

     But since the late 1990s, legal writers have started to insert the superfluous preposition to after the verb, thereby making it intransitive. So they no longer cite cases, but cite to cases.

  This newfangled usage is not merely verbose; it irks traditionalists who think that you should “cite cases to a court” or “cite the record,” not “cite to cases” or “cite to the record.” (Believe me, it’s a pet peeve among a fair number of judges.) The object of cite should be the authority cited, not the person to whom the authority is cited.

      Here at LawProse we encourage you to inoculate yourself against this linguistic virus. The way to do that is simply to start noticing the usage whenever you see or hear it and not repeat it.

Further reading:

Garner’s Dictionary of Legal Usage 158-59 (3d ed. 2011).

Garner’s Modern American Usage 153 (3d ed. 2009).

The Redbook: A Manual on Legal Style § 12.3, at 259 (3d ed. 2013).

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LawProse Lesson #219: Are “certworthy” and “enbancworthy” bona fide words?

Are “certworthy” and “enbancworthy” bona fide words?

Yes. According to the 10th edition of Black’s Law Dictionarycertworthy dates from 1965 and means “(of a case or issue) deserving of review by writ of certiorari.” It was first recorded in the 7th edition of Black’s in 1999.

      Enbancworthy is recorded from 1968 and is defined as “(of an appellate case) worthy of being considered en banc.” It appears to have been invented by Judge John R. Brown of the 5th Circuit. He was proud of his neologizing effort.

      Both are labeled as slang terms.

      Each word is made with the combining form -worthy, which means either “fit or safe for” or “deserving of.” Among the English terms made with this suffix are seaworthy (first recorded in 1807), airworthy (1829), creditworthy (1840), and praiseworthy (1538). According to the Oxford English Dictionary, the suffix -worthy came into use in the 13th century. Among the obsolete terms that were current in Middle English are deathworthy and thankworthy. But comparatively few of the old compounds were noteworthy enough to come into common use.

      We hope you find this small discursus on neologisms lessonworthy.

Source: Black’s Law Dictionary 276, 643 (10th ed. 2014).

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LawProse Lesson #218: How much argle-bargle is required for jiggery-pokery?

How much argle-bargle is required for jiggery-pokery?

In the last few Supreme Court terms, Justice Antonin Scalia has used some memorable British colloquialisms—especially argle-bargle and jiggery-pokery.

Argle-bargle is a chiefly British phrase that has taken on the meaning “copious but meaningless talk or writing; nonsense.” It originated in the early 19th century from the Scottish term argle—a late 16th-century variation of argue. Merriam-Webster’s lists the term simply as a synonym of argy-bargy, which in BrE means “a lively discussion or argument.”

Jiggery-pokery means “devious or suspicious behavior; sly manipulation; subterfuge; trickery.” The term originated in the late 19th century, most likely as a variant of the Scottish joukery-pawkery from jouk (to turn or bend, usu. to avoid someone or something) and pawky (artfully shrewd). Jouk also gives us the sports term juke (to make a false move in order to deceive an opponent), combining jouk‘s original physical sense and the metaphorical one it assumed as joukery.

Such reduplicative phrases have a way of catching the public ear. Flimflam, jibber-jabber, hocus-pocus, and mumbo jumbo are mainstays of political commentary. And flip-flop is a recurrent favorite, cropping up in prominent elections. So keep an ear out for it in 2016.

Though Justice Scalia’s borrowings from across the Pond may sound funny to American ears, they are part of a well-established tradition and have rich histories of their own—far from pure applesauce. Before I became Justice Scalia’s coauthor (on two books), I interviewed him at length in 2006. When the Justice mentioned that Justice Robert H. Jackson is his favorite writer in Supreme Court history, I responded: “Jackson . . . was considered to be way too aggressive toward his colleagues in his dissents.”

Justice Scalia responded, chuckling: “Oh, imagine that.”

Source:
Antonin Scalia, interview by Bryan A. Garner, 13 Scribes J. of Legal Writing 51, 64 (2010).

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LawProse Lesson #217: When do you capitalize “federal” and state”?

When do you capitalize federal and state? What about congressional and constitutional?

     These words have been worked hard over the past week. Maybe they’ve earned capitals on that basis alone. But let’s see what the best typographic practice calls for—keeping in mind that professional editors today overwhelmingly prefer “down-style,” in which capitalization is sparingly used.

Generally speaking, the word federal should be lowercase unless it’s part of a title or an organization’s name {federal assistance} {the federal government} {Federal Rules of Civil Procedure} {Federal Trade Commission}.

Don’t capitalize state when using it as a common noun {She visited the New England states last month.} {The travel guide lists the most secluded beaches in the state of California.}. But do capitalize state if it is (1) part of a proper name {I live in Washington State (as opposed to Washington, D.C.).} {Sick of the hot Texas summers, Susan is moving to New York State (as opposed to New York City).}; (2) used in place of a particular state, or referring to a specific governmental body {Don has worked for the State of Kansas for 20 years.} {The State’s criminal penalties for drug crimes are too lenient.} {Contact the State for licensing requirements.}; or (3) a party to litigation {The State filed a response yesterday.}.

As a matter of style, you’ll find many recent U.S. Supreme Court cases in which both words are capitalized. That may be a holdover from 18th-century style, in which many common nouns are capitalized.

The adjectives congressional and constitutional are not capitalized because their corresponding nouns, Congress and Constitution, are not exclusively proper nouns {A vigorous daily walk is good for your constitution.} {The student body held a congress to discuss tuition increases.} {the constitutional basis for imposing congressional term limits}. But adjectives that are derived from words that exist only as proper nouns should be capitalized {American}.

Down-style is easier to read: it emphasizes only words that require emphasis. In legal writing, there is an unfortunate tendency toward contagious capitalization. But it’s a curable condition.

Further reading:
Garner’s Modern American Usage 131–32, 186, 193 (3d ed. 2009).
Garner’s Dictionary of Legal Usage 133–34, 203, 209, 354 (3d ed. 2011).
The Redbook: A Manual on Legal Style § 2, at 61–77 (3d ed. 2013).
The Chicago Manual of Style § 8.50, at 406–07, § 8.61, at 412–13 (16th ed. 2010).

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LawProse Lesson #216: Embracing constructive criticism.

Embrace constructive criticism.

     Undeveloped writers feel instinctively that if someone else criticizes their writing, it’s a personal affront. But more experienced writers know that if you insulate yourself from criticism, you’ll find it difficult to improve.

Every document can benefit from a review by a fresh pair of eyes—as many as possible, in fact. Good writers embrace that fact and welcome the help.

Ideally, every serious writing project receives a series of good edits late in the writing process. Not just heavy edits, but good edits. The best situation is having an experienced editor look at your document. But even nonprofessional editors and less-experienced juniors can give you valuable comments. They might find a particular sentence awkward or a particular word jarring. If they do, other readers probably will too. Or they may point out a flaw or gap in your reasoning or argument.

The more secure you are as a writer, the more you’ll seek out independent, objective scrutiny of your writing. It won’t come naturally—you’ll have to put aside your ego. Writing is a humbling affair.

I recently met a senior lawyer who took me aside and confided that he never lets anyone edit his prose. “Who would be qualified?” he asked rhetorically. But his colleagues, I’m sure, are more adept than he believes. And I’d wager that his prose isn’t nearly what he thinks it is.

Further reading:
Legal Writing in Plain English 161–62 (2d ed. 2013).
The Winning Brief 67–74 (3d ed. 2014).

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LawProse Lesson #215: How do you decide which Latin phrases to italicize?

How do you decide which Latin phrases to italicize and which ones to keep in roman type?

The answer depends on how thoroughly naturalized the word, abbreviation, or phrase has become in English. If the term has become so commonplace in English that it is said to be “anglicized,” it stays in roman type; if it’s persistently considered a foreignism, it should be in italics.

If that sounds like a fuzzy “rule,” you’re right. Consider that in the best style, the abbreviations “e.g.” (exempli gratia) and “i.e.” (id est) are set in roman even though the full terms are italicized. Here are a few more examples:

Italicized

a vinculo matrimonii
caveat emptor
de minimis
duces tecum
ejusdem generis
in loco parentis
in pari materia
inter alia
non compos mentis
sensu stricto

Not italicized

certiorari
de facto
en banc
habeas corpus
mens rea
nunc pro tunc
prima facie
res judicata
stare decisis
sua sponte

With no bright-line rule for determining when a foreignism becomes anglicized and should no longer be italicized, the best practice is to check the current edition of a reliable dictionary or usage guide. The surest guide for legal terms is Black’s Law Dictionary (10th ed. 2014). Follow the style of the entry’s headword.

One last note: remember that a word or phrase—anglicized or not—is always italicized when it is being used as a term rather than for its meaning. So, for example, even though habeas corpus is thoroughly anglicized and therefore set in roman type, it’s properly italicized in this sentence about the term itself.

Further reading:
The Redbook: A Manual on Legal Style § 3.3, at 80–81 (3d ed. 2013).
Garner’s Dictionary of Legal Usage 488 (3d ed. 2011).
Black’s Law Dictionary xxxiv (10th ed. 2014).
The Chicago Manual of Style §§ 7.49–7.53, at 364–65 (10th ed. 2010).

Thanks to Adam M. Hapner for his contributions to this lesson.

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LawProse Lesson #214: Lawyers’ biggest failing as writers.

Lawyers’ biggest failing as writers.

What’s the most pervasive flaw among legal writers? It’s the tendency to begin writing before fully understanding the message to be conveyed. Lawyers often don’t think through what they want to say until they’re already writing—and they therefore meander, backtrack, and even restart. Unless they spend a great deal of time rewriting and cutting, they end up submitting something verbose, rambling, repetitious, incohesive, and unpersuasive.

The mature writer first figures out the major propositions and then writes in support of them. The resulting product has both an overt structure and a strong focus.

This method of writing isn’t inborn; it’s learned. With some patience and humility, anyone can learn to do it.

Further reading:
Legal Writing in Plain English § 1, at 7–9 (2d ed. 2013).
The Winning Brief 11–62 (3d ed. 2014).
Antonin Scalia & Bryan A. Garner, Making Your Case 69–70 (2008).

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LawProse Lesson #213: Caselaw: one word or two?

Caselaw: one word or two?

Two-syllable noun phrases often begin as separates, then become hyphenated, and then become solidified. Take, for example, the word today. It started as two words {to day}. In the 19th century it was commonly hyphenated {to-day}. The Century Dictionary (1895) listed to-day as the preferred form with today as a variant. In 1934 the venerable Webster’s New International Dictionary (2d ed.) still listed the hyphenated form, but preferred today. Today it is invariably solid.

So how about case law vs. case-law vs. caselaw?

The multisyllable decisional law could never be solidified. But for the two-syllable caselaw, we made the editorial decision to write it as one word in Garner’s Dictionary of Legal Usage and Black’s Law Dictionary. Although Merriam-Webster’s spells it as two words, we agree with The Chicago Manual of Style: “[Our] general adherence to Webster’s does not preclude occasional exceptions when the closed spellings have become widely preferred by writers (e.g., website) and pronunciation and readability are not at stake.”

In fact, our forthcoming treatise—written with 13 appellate judges—is tentatively titled Caselaw.

Further reading:
Garner’s Dictionary of Legal Usage 136 (3d ed. 2011).
The Redbook: A Manual on Legal Style §§ 7.16–7.17, at 137–38 (3d ed. 2014).
The Chicago Manual of Style §7.79, at 373 (16th ed. 2010).
Black’s Law Dictionary 259 (10th ed. 2014).

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LawProse Lesson #212: Be the voice of reason.

Does a snarky tone win in motion practice?

Among the most common remarks that judges make about advocacy is how extremely distasteful they find digs, jabs, put-downs, and negative characterization of opposing counsel and opposing clients. Yet litigators everywhere seem to adopt these tactics more than ever. So what’s the best approach, and why? Should we trust what judges say about motions they find persuasive? Or should we assume that litigators have learned something—that the judges really are favorably affected by the negative tactics and don’t truly know what persuades them?

Say you’re a judge and you pick up this motion:

Before:
Callan Co. makes meritless waiver claims. It claims, for example, that Tarton Systems didn’t disclose the rulings of the court that they lost on. But Callan blithely ignores all of the findings dealing with the appeal on the merits, where Tarton complained about mistakes below. Paraphrasing Mark Twain, Callan’s reports of Tarton’s alleged waiver have been greatly exaggerated. For example, Callan blunderingly carps that appellants didn’t challenge the Statement of Decision. Callan’s claim is so wrong on many levels. Because Callan’s brief is filled with plentiful blatant and fanciful exaggerations—too many to list here—Tarton attaches a table that delineates 34 other examples for the court’s amusement or chagrin (Appendix pp. 1–3).

It could have read this way:

After:
Callan Co. asserts that Tarton Systems has waived this appeal. For example, Callan claims that Tarton did not challenge the statement of decision and cites In re Marriage of Arceneaux in support. Arceneaux is not on point because the plaintiff in that case did not object to the proposed statement of decision or move for a new trial. Here, Tarton repeatedly objected to the statement, moved for a new trial, and also moved for a new and different judgment. Callan also claims that Tarton did not disclose adverse rulings of the court. In fact, though, Tarton has filed with this court the entire record of the appeal on the merits.

That’s an actual example that I’ve shown to hundreds of groups of lawyers and judges. Every group has reacted negatively to the first motion and positively to the second motion.

It stands to reason that we can mostly accept what judges say about persuasion. On this particular point, the reason is obvious: judges must understand and accord competing interests their due. A judge’s job is to be an impartial arbiter of the law. When the advocate takes a sardonic, barb-ridden tone, it becomes very difficult for the judge to align with that advocate.

The moral of the story: Always strive to be the voice of reason. An advocate’s role is to be a client’s champion in court. The advocate who plays the buffoon in a farce is botching the job.

Further reading:
The Winning Brief 459–68 (3d ed. 2014).

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