Never end a sentence with a preposition. Never split an infinitive. Do not start a sentence with and or but. None always takes a singular verb. Never use since for because. None of these are rules. Bryan Garner calls these and other bogus rules “superstitions.”1

But many of us were told that they were rules. A few are useful guides — it is usually better not to split an infinitive or end a sentence with a preposition. Winston Churchill said of the latter, “That is a rule up with which I will not put.” The former would require “To boldly go where no one has gone before” to be “To go boldly where no one has gone before.” The recast version loses some of its punch, its novelty.

Thou shalt not end a sentence with a preposition is not now and has never been a rule of English usage. It may have derived from Latin grammar, where prepositions could not end a sentence. But Latin is a dead language — keep it buried.

We should not twist our sentences into goofiness by avoiding sentence-ending prepositions. Should we write that is something about which it is not worth arguing rather than that is not worth arguing about? I think not. Even better sometimes is to avoid the preposition altogether — that is not worth discussing.

The problem with legal writing is not just that we shy away from ending a sentence with a preposition when it would be natural, but that we use too many prepositions.

Bryan Garner tells us that good writing uses fewer prepositions.2 We write docket of the court instead of the court’s docket. But the latter is much better, and it avoids a preposition. We write a distance of five miles instead of five miles. The former is simply redundant — an example of flabby writing. You can reduce the clutter in your writing by eliminating many prepositions.

An infinitive is a verb preceded by to. Splitting the infinitive means putting some words between the to and the verb. Inserting an adverb between the to and the verb sometimes makes the construction cumbersome. Counsel are directed to carefully and thoroughly research their briefs would be better as Counsel are directed to research their briefs carefully, or even better Counsel should research their briefs carefully. When there is a conjunction involved, be sure to get the infinitive in the right place: Buyers are allowed to either pick the fruit or buy it already picked should be Buyers are allowed either to pick the fruit or buy it already picked.

In a recent column on the subjunctive mood, I used this example: If she were [not was] president, or If he were [not was] older, she could go to the dance, or If a wish were [not was] a horse, then a beggar would ride. None of the facts are true — she is not president, he is not older, wishes are not horses. An alert reader questioned whether I should have written none of the facts is true.

The reader had remembered her grammar teacher’s emphasizing that none is always singular. How can there be more than one of nothing? That is true when none is used in the sense of not one, rather than in its more common sense of not any. That is, if more than one fact is untrue, none takes the plural. But if we say of all the facts, none is more important than the time of day, we are emphasizing a single fact, and thus none is singular. The plural is much more common. When in doubt — and some constructions are close — use the plural, none are.

The singular tends to sound fussy.

This issue was covered in a previous article, so it just merits fleeting mention here. The most likely genesis of the stricture against beginning a sentence with and or but is that it might not be a complete sentence — in second grade we might have written I have a dog. And a cat. And a parakeet. So the teacher told us not to start a sentence with and. That was good advice to keep from writing fragments, but no one disabused us of it later, when we had learned to distinguish complete sentences from fragments. Consider yourself disabused.

Lawyers sin the most by starting sentences with however. Change it to but and your flow will greatly improve. There are many examples of the proper use of and and but — from Pound, Holmes, Jackson, Shakespeare — in my book.3

Another bogus rule is that you should never use since when you mean because. This probably arose because (or since) someone felt that there could be confusion. Since can have a temporal meaning — since the 1900s — but it also means because, and is perfectly proper in that sense — Since we know it is raining, the game will be cancelled. There never has been a rule against this usage, but some people continue to believe that there is.

Remember, send your questions or suggestions to me at jugpainter@aol.com.

Footnotes:

1 Garner, Dictionary of American Usage (1998) 631.

2 Id. at 518.

3 The Legal Writer, Second Edition: 40 Rules to Improve the Art of Legal Writing (2003) 72.

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Mark Painter is a judge on the Ohio First District Court of Appeals and an Adjunct Professor at the University of Cincinnati College of Law. He is the author of five books, including The Legal Writer 2nd ed.: 40 Rules for the Art of Legal Writing. The book is available at Joseph-Beth Booksellers in Cincinnati and Cleveland, The Book Loft in Columbus, the Ohio Book Store in Cincinnati, Barnes & Noble in Cincinnati (Kenwood), and from Ohio Lawyers Weekly Books at http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing. Contact him at jugpainter@aol.com, or through his website at www.judgepainter.org.

Perhaps it sounds pretentious to call pushing for plain language in legal writing a “crusade,” but it makes some sense when we remember history. Lawyers started writing two words for one after the Norman Conquest, which was some years before the original Crusades. We are making progress—but progress in our profession is slow. After all, we have been writing badly for more than a thousand years.

The campaign to rid our paragraphs of the jumble of letters and numbers called citations has won converts throughout Ohio. Putting citations in paragraphs, rather than in footnotes, destroys readability. As lawyers, we have trained our eyes to “fast forward” past citations, but it is still difficult, especially where the citations are long. Another problem is that citations hide bad sentences and flaws in reasoning.

As for progress—these are cases from various Ohio appellate courts where citations are banished to footnotes: State v. Stuber, 150 Ohio App.3d 200, 2002-Ohio-6309, 779 N.E.2d 1090 (Hadley, J.); State v. Youlten, 151 Ohio App.3d 518, 2003-Ohio-430, 784 N.E.2d 768 (Kilbane, J.); Good v. Krohn, 151 Ohio App.3d 832, 2002-Ohio-4001, 786 N.E.2d 480 (Walters, J.); Citicasters Co. v. Bricker & Eckler, L.L.P., 149 Ohio App.3d 705, 2002-Ohio-5814, 778 N.E.2d 663 (Hildebrandt, J.); State v. Huffman, 151 Ohio App.3d 222, 2002-Ohio-7121, 783 N.E.2d 950 (O’Neill, J.); Bowling v. St. Paul Fire & Marine Ins. Co., 149 Ohio App.3d 290, 2002-Ohio-4933, 776 N.E.2d 1175 (Winkler, J.); Crystal v. Wilsman, 151 Ohio App.3d 512, 2003-Ohio-427, 784 N.E.2d 764 (Blackmon, J.); State v. Bennett, 150 Ohio App.3d 450, 2002-Ohio-6651, 782 N.E.2d 101 (Sundermann, J.); State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Sharp, 11 Ohio App.3d 756, 2003-Ohio-1186, 785 N.E.2d 822 (Painter, J.). Delaware and Alaska have adopted the citations-in-footnote system statewide, and at least some Texas Supreme Court justices have converted: See, for example, Derose v. State (Del. 2003), 830 A.2d 409; Riddell v. Edwards (Alaska 2003), 76 P.3d 847; In re A.V. (Texas, 2003), 113 S.W.3d 355.

We now see plain-language opinions populating the Northeast Second, Pacific Third, Southwest Second, and Atlantic Second volumes. The cases are infinitely more readable than ones with citations in the text.

The foregoing list is in the text because the citations are the point, not authorities for the point. And they are not interspersed within and between sentences.

Lawyers and firms are also getting on board. Most law firms in the First Appellate District have converted, along with the county prosecutor’s office. In Cleveland, the Cleveland Department of Law, under the leadership of director Subodh Chandra, has converted its entire operation to plain language.

Many firms have writing programs and have done in-house instruction on writing plainly. I see mostly briefs from Cincinnati lawyers, but I am sure there are many more firms and departments statewide that have swept citations to footnotes, forbidden legalese, and stopped using three words for one. One benefit to me personally — the briefs I get are so much easier to read than a few years ago.

Under the progressive leadership of Dean Joseph Tomain, the University of Cincinnati College of Law is seeking to prevent students from internalizing the bad legal writing to which they will be exposed in law school — cases, statutes, deeds — by giving to each entering student two books on plain language. Law students, many of whom are good writers when they start, must be told not to be ruined by reading legal writing and seeking to emulate it. Perhaps other law schools could follow Dean Tomain’s example.

Much more needs to be done. I still see briefs in Courier font, the most difficult to read. Some lawyers cling to unreadability by putting citations in paragraphs, using parenthetical numericals (there is one (1) defendant), including irrelevant dates, and failing to state the issue up front.

Some judges continue to believe that they write only for other judges and lawyers, and think that we like the “old” ways better. Most of us don’t; most of us like to be able to read a document. And cases are about people—shouldn’t the parties at least be able to read what is happening to them? Unfortunately, in Ohio the leadership in plain language is coming from the ground up, through the firms and appellate courts, as the Ohio Supreme Court still clings to jumbling citations in paragraphs. Once that court follows the lead of the supreme courts in Delaware and Alaska, and many other courts across the country, the task for the rest of us will get easier.

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Mark Painter is a judge on the Ohio First District Court of Appeals and an Adjunct Professor at the University of Cincinnati College of Law. He is the author of five books, including The Legal Writer 2nd ed.: 40 Rules for the Art of Legal Writing. The book is available at Joseph-Beth Booksellers in Cincinnati and Cleveland, The Book Loft in Columbus, the Ohio Book Store in Cincinnati, Barnes & Noble in Cincinnati (Kenwood), and from Ohio Lawyers Weekly Books at http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing. Contact him at jugpainter@aol.com, or through his website at www.judgepainter.org.

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