Guest Article

 January 30, 2006

By Judge Mark P. Painter

Past columns have discussed lawyerisms such as said, such, provided that, pursuant to, and/or, and the like. But there are many more. Here are some examples: 'On or about' A recent brief started out this way: The parties separated in December of 2003. Appellant/Father filed his Complaint for Divorce on or about December 22, 2003. On or about November 16, 2004 Appellant/Father filed a Motion for Shared Parenting of the parties' minor children. A Custody trial was had in this matter on February 8, 2005. On or about February 10, 2005, a Judgment Entry Allocating Parental Rights and Responsibilities was issued by the trial court naming Appellee/Mother residential custodial parent of the parties [sic] minor children. Appellant filed a Motion for Reconsideration on or about February 23, 2005, which was denied by Entry on or about March 9, 2005. Appellant filed his timely Notice of Appeal on or about March 9, 2005. I daresay that the date a motion is filed shouldn't be in question. Though most of the dates in this paragraph are not necessary (See Rule 5: Avoid Overchronicling - Most Dates Are Unimportant), if you mention a date, do not use the hedge on or about. It's silly and annoying. Fixed, the paragraph would read this way: The parties separated in December 2003. A custody trial was had in February 2005. The trial court named Smith the residential custodial parent of the minor children. Jones moved for reconsideration, which the trial court denied. Jones appeals. None of the exact dates are necessary. But parties' names are (See Rule 27: the Parties Have Names), and we can assume that the first paragraph of the brief has already named them (See Rule 3: Frame the Issue in Fewer than 75 Words). Stricken too was the rampant capitalization - there is no reason to capitalize complaint, divorce, entry, custody, and motion, except in captions. 'What, if anything?'  Why do lawyers question a witness by asking, "What, if anything, happened next?" Unless the world had ended at that precise moment - in which case neither the lawyer nor the witness would exist - something obviously happened next. My only theory is that some goofy judge must have sustained a "leading question" objection once, so lawyers started inserting the if anything to avoid that issue. Of course, the original question, "What happened next?" is not leading, because it does not suggest an answer. 'Whether or not' My theory is the same for this absurdism. Very seldom is the or not necessary. The whether implies the or not, as in "Can you tell me whether or not it will rain?" Was this lawyerism also the result of a "leading question" misunderstanding? Who knows? You should always leave out the or not unless it supplies meaning, which occurs only in the regardless context: "The game will be played whether or not it rains." As in all matters of usage, for more information see Bryan Garner's Dictionary of Modern Legal Usage, 2nd ed. Know All Men by these Presents Are we gonna get a present? It's akin to Further Affiant Sayeth Naught. Use either not (or naught). Readability Score I always show the readability scores for a column. Statistics for this column: 13 words per sentence, 10 percent passive voice, and grade level 9.8.

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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 Municipal Court. He has served as an Adjunct Professor at the University of Cincinnati College of Law since 1990. Judge Painter is the author of five books, including The Legal Writer: 40 Rules for the Art of Legal Writing. The third edition of that book was published in May. It is available from http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing and will give his six-hour legal writing seminar in December 2005 in Cincinnati, Cleveland, Columbus, and Toledo, Ohio. Contact him through his website, www.judgepainter.org.