By Judge Mark P. Painter

This column celebrates another small victory. The Ohio State Bar Association Report (OBar) had for many years been using a non-standard system for the headnotes to cases.

This was a problem because it could lead Ohio lawyers to think citing “ORC Sect. 4511.19” was correct. It is not. The proper citation is “R.C. 4511.19.” In Ohio, we do not use the section mark (Sect. ). Plus it is R.C. not ORC, and there are periods. In one citation, the people doing the headnotes were making three errors.

For months, I emailed away, pointing this out. No response at all. But I finally got the right person, and it’s now fixed! Now, Ohio lawyers won’t be misled. A small step, but an important one. All cases published in Ohio are in the Ohio format, so lawyers and judges are used to reading that — if you use something else, you detract from readability. Why not do it right — and make it easy on the reader?

If you are in doubt about a citation format, or anything else, the official manual, and the 2002 changes (one of which bans the use of italics for anything but emphasis — Latin words are no longer italicized) are online at www.sconet.state.oh.us/rod.

Useless And Distracting Stuff

“Now comes the plaintiff [where?], by and through the undersigned attorney, and moves this honorable court to grant summary judgment…“

Does that convey any meaning at all? Of course not — it’s just legal nonsense. But we litter our legal documents and pleadings with it. Delete it. Just write “Jones moves for summary judgment.” Unless, of course, the honor of the court is actually in question.

“Know all men by these presents…“

What does that mean? I always think I am going to get a present.

“To all to whom these presents shall come, greeting…“

This nonsense is on all of my certificates of election. These quaint documents are a veritable litany of banned words: know ye, aforesaid, said, in witness whereof, and even in pursuance of, which is even worse than pursuant to. Gosh.

“Further affiant sayeth naught.”

This is Elizabethan Middle-English, still sometimes appearing in affidavits. But in the real world, the -th has long since been replaced by -s, or by nothing. We write he says, not sayeth. We make love, not maketh love. Bryan Garner’s comment on this anachronism: “When the affiant hath nothing further to say, the affiant generally stoppeth testifying.” i

And is it naught or not. Actually the former makes more grammatical sense, but “the best choice…is to uses these phrases not.” ii

Remember To Question

Questions on usage, style, or grammar are welcome. Please send questions, comments, or particularly good or bad examples of legal writing to jugpainter@aol.com.

Readability

Last column, I started listing the two major readability statistics — remember, you can program Word to tell you these and more. Statistics for this column: 11 words per sentence, 2 percent passive voice. (Remember the 1818 Rule — no more than an average of 18 words per sentence and 18 percent passive voice sentences.) iii

FOOTNOTES:

i Garner, Dictionary of Modern Legal Usage (2nd Ed. 1995), 779.

ii Id., at 378.

iii Painter, The Legal Writer 2nd Ed.: 40 Rules for the Art of Legal Writing (2003), 61-72.

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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.