Feature Story

May 17, 2004

By Judge Mark P. Painter

Parenthetical Numericals

"There are four (4) plaintiffs and six (6) defendants, all claiming the ten thousand dollars ($10,000). But only three (3) of the four (4) plaintiffs are entitled to recover from one (1) defendant."

The reader sounds out the numbers twice.

This irritating practice of spelling out numbers and then attaching parenthetical numericals is a habit learned when scribes used quill pens to copy documents. The real reason for this was to prevent fraud by making it difficult to alter numbers. Now, our word processors probably won't make three look much like four, so we can safely do away with this anachronism.i

Any brief that states, "There were two (2) defendants and three (3) police officers present" is extremely hard to read and looks silly. Unless you are writing a brief in longhand — and unless you believe the parties will alter your numbers — skip this "noxious habit."ii

And/Or

And/or is a legalism almost as bad as parenthetical numericals. It not only can be ambiguous, but is usually incorrect.

As far back as 1935, the Wisconsin Supreme Court had this to say: "[W]e are confronted with the task of first construing 'and/or,' that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance. . . "iii

There is never a reason for and/or. Become an antiandorian — delete and/or from your verbal repertoire.

Pursuant To

Or even worse in pursuance of. Pursuant to can mean under or for. Actually, it has four different senses: 1) according to, 2) under, 3) authorized by, or 4) in carrying out.iv So say what you really mean. Instead of pursuant to R.C. 4511.19(B), write under R.C. 4511.19(B). Instead of Jones was sentenced pursuant to a rape conviction, write Jones was sentenced for a rape conviction, or even better, Jones was sentenced for rape.

Doing a Lexis search on pursuant turns up 56 cases just in Ohio and just in one week. So judges are guilty too. Just in that week, I note one court (note no citation) had nine pursuant tos:

- filed a grievance pursuant to the Collective Bargaining Agreement

- was arbitrated pursuant to the union's request

- arbitration award issued pursuant to a collective bargaining agreement

- matters must[,] however[,] be brought pursuant to this Grievance Procedure

- filed a second amended complaint pursuant to Civ.R. 15(A)

- required to first be submitted pursuant to a grievance

- submitted to the employer pursuant to a grievance

- issues are properly brought pursuant to a grievance

- grant sanctions pursuant to the specific provisions of Civ.R. 11

Not to be outdone, another district had 10:

- permitted to maintain his innocence pursuant to North Carolina v. Alford

- its findings pursuant to R.C. 2929.12 and R.C. 2929.13

- trafficking offense should have been reduced pursuant to R.C. 2929.12(C)(2)

- theft offense should have been reduced pursuant to R.C. 2929.12(C)(3)

- reduce the theft sentence pursuant to R.C. 2929.12(C)(3)

- drug and alcohol problem pursuant to R.C. 2929.12(D)(4)

- three statutory factors pursuant to R.C. 2929.14(E)(4)

- a sanction imposed pursuant to R.C. 2929.16

- Pursuant to this provision, the trial court's

- imposition of consecutive sentences pursuant to R.C. 2929.14(E)(4)

Almost all these can be changed to under. At first, I thought there was a pursuant to in a decision from our court that week. But it was in the "overview" section — part of the "value added" by Lexis. I'm sure one sometimes sneaks through here — but I found only one so far this year.

Said And Such

You may use she said, of course. It's the way we use said for the, or that, or this that is infuriating. And many times we use it when no word is necessary. The said defendants can safely be the defendants without losing meaning.

Such is the same — such complaint translates to the complaint.

In the last ten years in Ohio, I found only six times where said defendants was used in an appellate decision — and each time it was in a direct quote. I glean from this that lawyers rather than judges are the main culprits. And the legislature, of course. The Revised Code (don't they have nerve to call it that?) is replete with bad examples:

When any person by deed or will grants or devises property and money, or either, to trustees in perpetuity, in trust, stipulating that the principal and income, or any part of the principal and income thereof, is to be used and applied by said trustees and their successors in office for educational, charitable, or benevolent purposes, to be conducted in this state, and when such deed or will provides that the trustees shall become a body corporate to hold and invest said property and money and to administer said trust, said trustees upon accepting said trust shall file with the secretary of state articles of incorporation as provided by section1702.04 of the Revised Code, together with a certified copy of such deed or will, and thereupon said trustees and their successors in office shall become a corporation not for profit to administer said trust, and said trustees shall forthwith become the board of trustees of such corporation for such term as is prescribed by such deed or will or by the code of regulations of such corporation. The members of the board of trustees and their successors, during their respective terms of office, shall be the members of the corporation.v

Before any court establishes a sanitary district as outlined in section 6115.04 of the Revised Code, a petition shall be filed in the office of the clerk of said court, signed by five hundred freeholders, or by a majority of the freeholders, or by the owners of more than half of the property, in either acreage or value, within the limits of the territory proposed to be organized into a district. Such a petition may be signed by the governing body of any public corporation lying wholly or partly within the proposed district, in such manner as it prescribes, and when so signed by such governing body, such a petition on the part of said governing body shall fill all the requirements of representation upon such petition of the freeholders of such public corporation, as they appear upon the tax duplicate; and thereafter it is not necessary for individuals within said public corporation to sign such a petition. Such a petition may also be signed by railroads and other corporations owning lands.vi

All the suchs and saids could be changed to the, or eliminated entirely. My search turned up 1,104 sections of the Revised Code that have at least one said — many have dozens. Neither Lexis nor Casemaker would let me search for such, but the violation rate is probably the same.

Readability

In each column, I list the two major readability statistics — remember, you can program Word to tell you these and more. Statistics for this column: 15 words per sentence, 6 percent passive voice. (Remember the 1818 Rule — no more than an average of 18 words per sentence and 18 percent passive voice sentences.) That's for my text only. If we check the quotes from the Code, the word-per-sentence count goes off the charts: 122. And those (said?) Code sections rate a reading-ease score of 4.6 (of 100), the lowest I have ever seen. The balance of the text gets a 58.

Endnotes:

i See Painter, The Legal Writer 2nd Ed.: 40 Rules for the Art of Legal Writing (2003), 35.

ii Garner, A Dictionary of Modern Legal Usage (2nd Ed. 1995), 606.

iii Employers' Mut. Liab. Ins. Co. v Tollefsen (Wisc.1935), 263 N.W. 376, 377.

iv See Garner, A Dictionary of Modern Legal Usage (2nd Ed. 1995), 721.

v R.C. 1719.01.

vi R.C. 6115.05.

vii See 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.