Feature Story

July 26, 2004

By Judge Mark P. Painter

Among the many words lawyers overuse looms provided. Often it's provided that, sometimes provided also, sometimes provided always. Almost always it's unclear.

As with many legal manglisms, provided started out harmlessly enough. It was an enacting word of (very) early legislation. English laws passed by parliament began, "It is provided." That's OK.

But then lawyers started using provided in a different sense — as a "proviso"— meaning an exception. Or a limitation. Or a condition precedent. Or a condition subsequent. Or something. The term became a catch-all lawyerism — "a legal incantation … an all-purpose conjunction, invented by lawyers but not known to or understood by grammarians."1

Myriad cases turn on what provided means. Bryan Garner says it best: "Writers on drafting have long cautioned drafters not to use provisos. In fact, the words provided that are a reliable signal that the draft is not going well."2

Don't use provided that. Instead, use if or except, or when, or but, put one of them first, and rephrase. Or avoid the construction altogether. If you are using provided that to introduce new material, begin a new sentence.

Bad:

The expense may be deducted, provided that it was a business expense.

Better:

If the expense was a business expense, it may be deducted.

Better yet:

If the expense was a business expense, you may deduct it.

Better yet:

You may deduct business expenses.

Bad:

Any person may apply to be a Cincinnati police officer, provided that the person has attained the age of 21.

Better:

Anyone who has attained the age of 21 may apply to be a Cincinnati police officer.

Better yet:

If you are 21 or older, you may apply to be a Cincinnati police officer.

The rewrites aren't perfect — probably they can be improved upon — but they are much better than the originals that use provided that. And all the rewrites get much higher readability scores.

Rogues' Gallery

One good thing about writing about legal writing is the plentitude of bad examples — OBar comes every week. And the legislature's handiwork is everywhere.

Magistrate Myron Harkacz of Lorain County — where consonants abound — supplied this gem:

R.C. 3107.41(c)(2)

If the agency determined that the petitioner is an adopted person, if the department of health informed the agency either that the file of releases does not contain a release or releases filed by one or both of the petitioner's biological parents that authorize the release of identifying information to him and does not contain a release or releases filed by any biological sibling that authorizes the release of specified information to him or that the file of releases contains at least one such release but a withdrawal of release has been filed that negates each such release, if the agency did not inform the court that it had determined that one or both of the petitioner's biological parents as indicated on the petitioner's original birth record were deceased, and if the court did not determine that one or both of the petitioner's biological parents as indicated on that record were deceased, the judge shall order that the petition remain pending until withdrawn by the petitioner and order the department of health to note its pendency in the file of releases according to the surname of the petitioner as set forth in his original birth record; shall inform the petitioner that he is an adopted person and, if known, of the county in which the adoption proceedings occurred; shall inform the petitioner that information regarding his name by birth and the identity of his biological parents and biological siblings may not be released at that time because the file of releases at that time does not contain an effective release that authorizes the release of any such information to him; and shall inform the petitioner that, upon the subsequent filing of a release by or the death of either of his biological parents, or the subsequent filing of a release by any of his biological siblings, the petition will be acted upon within thirty days of the filing in accordance with division (E) of this section.

The rest of R.C. 3107.41 is similar. This sentence has 326 words. So far, I have not found a longer sentence in the "Revised" Code. (A free book to the first reader who finds one of more than 400 words.)

Even shorter passages can descend to unfathomability. Last column we used some examples from academia. This one is from The Cultures of United States Imperialism, by Donald Pease (Duke University Press, 1993): "When interpreted from within the ideal space of the myth-symbol school, Americanist masterworks legitimized hegemonic understanding of American history expressively totalized in the metanarrative that had been reconstructed out of (or more accurately read into) these masterworks."

The sentence is 55 words and scores a perfect zero on any measure of readability.

A Special Thanks

These columns, now spanning more than two years, have had the benefit of my editor. One of the best ways to learn writing is to have a good editor go over everything you do. Christopher Deitz has edited these columns both for content and grammar. And he always catches a glitch or two. Chris also edits every case that comes out of our court. I have learned a lot from you Chris —thanks! (He didn't edit this section — I added it after. So it probably has some errors.)

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 — my text only: 12 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.)

Footnotes:

1 Driedger, The Composition of Legislation (2nd Ed. 1996) 96, quoted in Butt & Castle, Modern Legal Drafting (2001) 125.

2 Garner, Dictionary of American Legal Usage (2nd Ed. 1995) 710.

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Mark Painter is a judge on 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 the Ohio Bookstore in Cincinnati, Joseph-Beth Booksellers in Cincinnati and Cleveland, the Book Loft in Columbus, and from Lawyers Weekly Books at http://books.lawyersweekly.com. Judge Painter has given more than three dozen seminars on legal writing. Contact him through his website at  www.judgepainter.org.