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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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?
- 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.
- 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.
- 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.
- 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.