>> The Legal Writer #30

The Legal Writer #30

By Judge Mark P. Painter

This column addresses some miscellany. Long-time readers will note that the references to the “rules” refer to those in The Legal Writer 2nd Ed.: 40 Rules for the Art of Legal Writing. These were discussed in detail in previous columns. If you missed the earlier installments, there is info on how to buy the book at the end of this installment.

A Rule Against Apostrophes?

Did someone ban contractions from legal writing? Is there a rule against apostrophes? Did we learn that one right after the rule against perpetuities? (An apostrophe in being, plus …) Writing is it not likely instead of isn’t it likely just sounds stuffy. If you prefer cannot for can’t, I won’t argue, but generally use the contraction if it sounds natural. And yes, sometimes the formal can supply slightly more emphasis. Write with your ear, as well as your eye and your brain.

The apostrophe is unjustly maligned. Avoiding apostrophes results in clumsy constructions. It also adds to the word count, by adding clutter. The apostrophe is a useful tool. Use it.

In addition to contractions, some writers seem to think possessives are banned. Lawyers write the docket of the court instead of the court’s docket (see Rule 23 – Always Question “Of”). Use the possessive with the apostrophe, not the longer and more pompous of construction.

Fun With Numbers

The general rule is to spell out numbers one through ten. You should then use numerals for 11 and above.

Some authorities do have different rules. For example, The Chicago Manual of Style (15th ed. 2003), favors spelling out numbers up to one hundred.

But Bryan Garner’s Modern American Usage (2003) specifies the one-to-ten rule, as does his Dictionary of Modern Legal Usage (2nd ed. 1995). That rule is better for legal writing.

As with most rules, there are exceptions. If a number begins a sentence, it is spelled out, though it is often better to recast the sentence. “Nineteen ninety-nine will be remembered for …” would be much better as “We will remember 1999 for …”

Another hint: leave out the double zeros after a decimal. Write $200, not $200.00. And substitute words for rows of zeros where possible. Write $2 million, $5 billion. For percentages, use the percent sign (%).

And remember Rule 6 – No Parenthetical Numericals. Never clutter your document with both words and numbers: “There were four (4) plaintiffs and six (6) defendants.” Never.

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. See Bryan Garner’s comment on this anachronism: “When the affiant hath nothing further to say, the affiant generally stoppeth testifying.”

And is it naught or not? The former makes more grammatical sense, but, says Garner, “the best choice is … to use these phrases not.”

Too Many Dates

Lawyers and judges use too many dates (See Rule 5 – Avoid Overchronicling – Most Dates Are Clutter). Using an exact date signals that it is important – that the reader should remember it for future reference. If that’s not your intention, strike it out.

You can convey continuity and order by clues like next and later. Or use “in June,” then “in July” to show chronological order.

When using month-day-year style, there is a comma before and after the year – “the ceremony of June 26, 2003, was festive.” In the day-month-year style (more prevalent in Commonwealth and European writing), there is no comma – “the ceremony of 26 June 2003 was festive.” And remember that when not using an exact date, there is no comma between the month and year: “in June 2003.”

In referring to decades, do not use an apostrophe – “during the 1980s” not “1980’s.” Technically, either is acceptable; but the modern rule, which produces cleaner looking text, is to leave out the apostrophe.

Uncommon Comma Considerations

Commas do not surround Jr., Sr., III, Inc., LLP, Ltd., and the like. Just write, “John Smith Jr. is president of Minoliana Inc.” In parenthetical material, a comma never precedes a closing parenthesis, but may follow it. “When in Rome (where I went last year), be sure to see the Pantheon.” A comma is used to set off a state or country: “Peoria, Illinois, is her home.”

Cross Out Cross-References

Last month I received an email with this question: Where do you use supra and infra? My short answer is – nowhere. Nor should you use op. cit. or loc. cit.

These cross-reference indicators are distracting and unnecessary in most legal writing. They abound in law reviews, so new lawyers tend to believe they are acceptable, even desirable. If you want your brief or memo to be just as unreadable – and unread – as most law reviews, then litter it with supras and infras.

When you use an infra, you are saying to the reader “I’m going to tell you about this later.” That’s just silly – if something is relevant now, talk about it now, not later.

Footnotes are for citation only (See Rule 13 – Citations Go in Footnotes). So any supra or infra would automatically be in a footnote. But instead of using a supra to indicate you have cited something just a footnote or two earlier (if it is in the last footnote, it would be Id.), it’s more convenient for the reader if you just repeat the cite.


Mark Painter has served as a judge on the Ohio First District Court of Appeals for 10 years, after 13 years on the Hamilton County (Cincinnati) Municipal Court. He is also an Adjunct Professor at the University of Cincinnati College of Law. Judge Painter is the author of five books, including The Legal Writer: 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, and from http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing. Contact him through his website at www.judgepainter.org