Random Musings on Usage in Legal Writing

While writing for Lawyerist, I’ve thought about many potential legal-writing and usage tips that, considered alone, didn’t warrant full-blown treatment in a column.

So I decided to compile some of them for this week’s column. Here they are, in no particular order of importance.

  1. Endorse/indorse; ensure/insure/assure. Lawyers often confuse these five words. If you’re writing about signing the back of a negotiable instrument—like a check—use indorse, which means “to sign on the back.” (“indorse on the back of a check” is redundant). Endorse means to publicly express approval or support. If you ensure something, you make sure that it happens. But as Bryan Garner notes, insure is “restricted to financial contexts involving indemnification; it refers to what insurance companies do.” Finally, both insure and ensure get confused with assure, which “takes a personal object,” and means to make a promise to or convince.
  2. Furthermore. Garner says that the conjunction furthermore “is quite proper,” but qualifies the endorsement by noting that its “heaviness can weigh down a passage.” He’s being too kind. I cringe when I’m dragged through its three syllables—fur–ther–more. Instead of bringing your writing to a screeching halt, why not try breezy, one- and two-syllable replacements like also, and, or besides? What’s more is also a nice substitute, but only if you use it sparingly.
  3. Had a conversation with. Lawyers love nominalizations, but why not write talked to instead of had a conversation with? If your firm gives you bonus points for obscure prose, go ahead and indulge yourself. But if your firm expects you to produce stellar legal writing, and you don’t start spotting and rewriting nominalizations like this one, you might have to start having conversations with a legal headhunter.
  4. In the event that/should. What’s the need for the subordinating conjunction in the event that? There’s a one-syllable conjunction that does the same thing. It’s if.  And please don’t use should like this: “Should you have any questions, please let me know.” No ordinary person talks like this. Substitute If for Should here.
  5. Inasmuch. In 1926, H.W Fowler called the “ordinary modern use” of inasmuch a “four-syllable substitute for since,” and said that “its only recommendation as compared with since is its pomposity.” Fowler’s advice to our forebears: “A word that in one sense is pompous, [and] in another obscure or ambiguous, [and] in both has satisfactory substitutes, is better left alone.” Because or since are preferred one- and two-syllable substitutes to this anachronistic piece of deadwood.
  6. Informed. Eric Partridge points out that inform when used “for mere tell, is officialese and to be avoided by ordinary people.” Lawyers, of course, don’t fancy themselves “ordinary people.” But informed when used for tell does nothing for your writing except, perhaps, make you sound more informed. It would be silly for somebody to say: “She informed [read: told] me that she was going to the store.” So why write it?
  7. Irregardless. Irregardless isn’t a word. Garner calls it “the badge of illiteracy.” Wilson Follett calls it a “barbarism”—”an expression in the mouth of an educated speaker which is so at variance with good sense and good usage that it startles the hearer.” Theodore Bernstein’s entry is simply: “Illiterate.” So the only rule about using irregardless is that you can’t use irregardless.
  8. Moreover. Longman’s Guide to English Usage says that moreover is a “word appropriate to formal writing.” But effective legal writing is conversational legal writing. So like furthermore, replace the three-syllable moreover with one- and two-syllable words like and or also or besides.
  9. Permit/allow. Lawyers often conflate these words; but, as Garner notes in his Redbook, there is a “connotative nuance” between them. If you permit something, you formally approve it. If you allow something, you don’t approve it but you also don’t oppose it.
  10. Witnesseth. Garner says that witnesseth is “a variant form of Elizabethan usage.” As in Shakespeare’s Queen Elizabeth. Witnesseth has no legal significance or effect in contracts, yet transactional lawyers on the cutting-and-pasting edge of the law still include it as a stamp of approval at the end of their legalese-riddled masterpieces. Be bold and cut it. Nobody will witnesseth its omission.

(photo: http://www.flickr.com/photos/caliorg/6150105011/)

Lawyering Skills

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  • Craig

    The suffix -eth is used to designate that the action is ongoing or perpetual. So instead of Mr. Jones witnesses (only at this time) it is Mr. Jones witnesseth (At this time and forever more). Perhaps there is no contractual meaning to it, but the words themselves do contain a distinction.

  • Ed

    It seems that the current generation is striving to become far simpler than any previous generation could possibly aspire to be.

    • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

      Who can blame us? Simpletons just seem so happy!

    • http://www.linkedin.com/in/matthewsalzwedel Matthew Salzwedel

      Writing in simple, Plain English, is nothing new. Genesis ch. 1 is about as simple as it gets.

  • http://gimbalcanada.com/ Karen Dunn Skinner

    Ah, if we could rid the world of irregardless! Great points — although I got a little confused by the syllable counts in number 5. Then I realized you must have meant that “Inasmuch as.” Still stumped at “because” as a single syllable.

    • http://www.linkedin.com/in/matthewsalzwedel Matthew Salzwedel

      Karen, good catch. Because is a two-syllable word. I’ve corrected the sentence. Thank you for your fastidiousness!

  • Christian Swindells

    All good points but you use ‘like’ in places where you should use ‘such as’. ‘Like’ compares but excludes; ‘such as’ includes.

  • http://www.linkedin.com/in/matthewsalzwedel Matthew Salzwedel

    Christian,

    Both are acceptable, though I follow grammar and usage experts like Patricia T. O’Conner, who says that the choice between like and such as “is a matter of taste—either is acceptable. To my ear, like sounds better; such as has a more formal air.” (Woe is I, at 106). Accord, e.g., Robert Burchfield, The New Fowler’s Modern English Usage (3d ed.) (“Opinion is neatly divided about the merits of like or such as used to introduce examples of a class. . . . The choice is often governed by the meaning: if the sense required is “resembling” then like is preferable.”). Barbara Wallraff, in Your Own Words, also adds: “[U]sing like where such as would convey the same meaning is perfectly good English unless in a given context like is ambiguous.” Wallraff lists other usage authorities who have commented on the issue: Theodore Bernstein (difference between like and such as is “slight”). The New York Times also favors like over such as, calling such as “stilted.”

    For a nice summary, also check out Grammar Girl.

    • captain_quirk

      “I believe that our education like such as in South Africa and, uh, the Iraq, everywhere like such as…”

  • http://phillylawblog.wordpress.com/ Leo

    My pet peeve: Compose v. Comprise

    Second: Impact v. affect.

  • CH

    “Told” has a different meaning than “informed.” You can tell me something and yet, I might not be paying attention. If you inform me about something, you didn’t just tell me something, but you educated me about it—you actually inserted knowledge into my brain. That’s the difference.

    I love this blog and I love many of the points but many of them make me shake my head because they sound better in theory than they actually perform in practice.

    There’s a reason we have different words for things that basically seem like the same thing. Look at the Eskimos. I’ve always heard they have tons of different words for snow because snow is so important to them. I live in NC so I only need one word for snow. But it would be ignorant for an Eskimo to tell fellow Eskimos that they shouldn’t use any of the other words for snow because “snow” is the most basic form of the meaning they’re trying to convey. Maybe they aren’t simply trying to convey the meaning of snow, but they’re trying to convey the meaning of 2-day old snow. My point is that, whether we know it or not, we use multiple words to convey what may seem like the same meaning for a reason.

    Of course I wouldn’t verbally tell a friend, “John informed Bobby that he was going to jail.” But that’s because I’m actually speaking to my friend. If my friend doesn’t understand something or wants clarification, I am there to explain. I can elaborate. I don’t need to pick the best words to convey the exact meaning because I am in front of him, speaking to him, seeing his expressions, and gathering data about whether he is receiving the information that I intend on him receiving. When we write, even if we are writing in a conversational manner, we don’t have the ability to clarify and elaborate if the reader doesn’t understand something. So we must choose our words carefully.

    *Moreover, words like “informed” allow us to convey the true meaning of what we want to convey. Are we trying to convey that A actually told B something, or do we want to convey that B received the information/knowledge? They’re completely different meanings. If A informed B through writing, then told wouldn’t be an accurate description of how B learned of the information. Again, is it important to know how B received the information or whether B received the information?