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The
Legal Writer #18: Rules That Aren't Rules
By
Judge Mark P. Painter
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.
To
End Or Not To End
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.
To
Split Or Not Split
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.
None
Is Or None Are
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.
And
& But
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
The
Sense Of Since
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.
____________________________________
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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