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Many readers have sent me
grammar and usage questions - or examples of
goofy legal writing. In this column, I set out
some that might be of general interest.
Problems With
Civil Rule 38
This rule concerns jury
demands. I have surely read it many times, but
alert readers Robert Lynch and Michael Cosgrove
of Cleveland have pointed out the archaic
language in Ohio's version. This is the
offending excerpt: "Such demand shall be in
writing and may be indorsed upon a pleading of
the party. If the demand is endorsed upon a
pleading the caption of the pleading shall state
'jury demand endorsed hereon.'"
The hereon is bad
enough, but the rest of the rule also includes such
issue, such demand, such action, and
herein provided. And the party is always he.
Why does it say indorsed, then endorsed?
The latter is proper, with the other spelling a
"variant." The rule hasn't been
changed since 1976. It needs some work!
Strangely, the federal equivalent has the
indorsed but not the silly hereon language:
"Such demand may be indorsed upon a
pleading of the party."
Intrigued (or maybe not
having a life), I looked at some other states.
Florida has it right: "The demand may be
endorsed upon a pleading of the party." It
has the instead of such, and endorsed
is spelled properly. Pennsylvania says simply,
"The demand shall be made by endorsement on
a pleading or by a separate writing."
Massachusetts has a slightly different variant:
"Such a demand may be endorsed upon
a pleading of the demanding party."
The two italicized words were added to the
federal version when it was adopted in New
Jersey - I guess they like extra words.
Lawyerism
Issues
A reader who wishes to remain
anonymous sent this example, penned by a former
colleague: "Enclosed is a release which
requires your execution." Of course, it
should be that rather than which,
but I doubt that clients would sign anything
requiring their own death. At least it didn't
say, "please find enclosed."
Many years ago, a friend once
tried a case in small-claims court, where the
defendant was in court unrepresented. It was a
collection for a past-due account for a washing
machine. My friend obtained a judgment, but
offered, in front of the judge,
to "stay execution" so the defendant
could make payments. The woman almost fainted,
exclaiming, "You're gonna execute me
for this?" The moral: Be careful using
lawyerisms with non-lawyers.
Like v. As
Another question from a
reader asks when like should be replaced
by as. First off, the old rule is
breaking down in practice, especially in speech.
But in writing, my shorthand explanation is that
if like can be replaced by as or as
if, it usually should be. Like is a
preposition used as an adjective, not an adverb.
As an adjective, it applies to nouns or noun
phrases.
Thus in similes, like
is proper: He is like a fool. He looks like
Washington. In both of these examples, like
translates as similar to.
Where like is at best
questionable in writing is when it's substituted
for as or as if: She acts like
[should be as if] she has a grievance.
The play ended like [should be as]
it should. But be careful. Bryan Garner, the
guru of all writing, warns that you can fall
into the opposite error - don't use as
when like is proper: "As
[should be like] many people, I am
confused."
Readability
I always show the readability
scores for the column. Statistics for this
column: 15 words per sentence, 12 percent
passive voice, and grade level 8.2.
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