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May 5, 2008

By Judge Mark P. Painter

Geraldine Ferraro is one of those people who seemed to have disappeared from the political scene. She had her 15 minutes of fame in 1984 as the running mate of Presidential candidate Walter Mondale. So when she surfaced with a splash as a Hillary Clinton spokesperson, I noticed.

Being nonpolitical by law, I take no position on the political impact of the words she said about Barack Obama. But I do object to the glaring grammatical glitch.

Someone who ran for the second-highest office in America should speak correct English. Her quote:

"If Obama was a white man, he would not be in this position. And if he was a woman (of any color) he would not be in this position.  He happens to be very lucky to be who he is."

Of course, each was should be were.  It's subjunctive.

The verbs should be were because they describe a condition contrary to fact—Obama is not white or a woman.

Should have been fixed

Newspapers used to change quotes to correct English, unless the bad English was part of understanding the quote or the person—Dizzy Dean might be used as an example here. He said Phil Rizzuto slud into third base. When someone criticized his using slud he said, "Slud is something more than slid. It means sliding with great effort." Of course, he also opined, "Well what's wrong with ain't?"  (See more Dizzy quotes at http://www.baseball-almanac.com/quotes/quodean.shtml.)

There are two reasons for cleaning up quotes: 1) it's not fair to quote bad grammar that might be okay in speech, but not in writing – the reader will think the speaker is an idiot; 2) perpetuating bad English in a newspaper might lead readers to think the error is the correct English. That's unfortunate – the more we see bad English in print, the more it works its way into our minds as acceptable.

Subjunctive can make the difference

Subjunctive is not used nearly as much as it once was. 

Now, the subjunctive is used to signal contrary-to-fact conditions, or suppositions. Historically, the subjunctive was used to convey any conditional thought, whether contrary to fact or not.  That usage is now archaic.

A wish is subjunctive, because wishing means that the thing wished for is not presently true. "I wish I was" is never correct. Phrases beginning with if often require the subjunctive verb, but only if they express something contrary to present fact. "If the court were [not was] made up differently …" But "If he goes [not go] ten miles, he will be in Stratford" is not subjunctive, because it simply states a conditional fact.

Why should lawyers care? Because just like leaving out a serial comma, the misuse of subjunctive mood can lead to ambiguity—and some court will construe your language against your intention.

Here are some examples where the subjunctive made a difference:

• "In Wong Wing, we hypothesized that detention 'necessary to give effect' to the removal of an alien 'would be valid'; the use of the subjunctive mood makes plain that the issue was not before the Court."  (Demore v. Hyung Joon Kim, 538 U.S. 510 (2003).)

• "Appellants argue that Clause 4(D) is 'expressly subjunctive and contingent' because preceded by the qualifying phrase 'if applicable'." (Royal Insurance Co. of America v. Orient Overseas Container Line Ltd., 514 F.3d 621 (2008).)

• "The phrase 'had he lived' in our wrongful death statute merely expresses in the subjunctive mood the contrary-to-fact situation that if the decedent had lived, which he did not, he could have brought a personal injury action for the death-causing injuries."  (Nealis v. Baird, 996 P.2d 438 (Okla.).)

The best explanation of the subjunctive mood is in Garner's Dictionary of Modern American Usage, though the discussion in the Dictionary of Modern Legal Usage—which you already have on your desk if you have heeded all my imperative (not indicative or subjunctive) entreaties in past columns—is also helpful.

Six uses

Garner explains that the subjunctive form survives in six contexts:

• Conditions contrary to fact: "If she were [not was] president," or "If he were [not was] older, he could go to the dance," or "If a wish were [not was] a horse, then a beggar would ride." None of the facts are [not is] true—she is not president, he is not older, wishes are not horses.

• Suppositions: "Supposing I were [not was] president," or "If I were [not was] to run for president, I might lose," or "Even if there were [not was] only one size, it would not fit," or "Were the situation reversed … " or "Hypothetically, doctor, if the wound were (not was) properly sutured ..."

• Wishes: "I wish I were [not was] president," or "Would that I were [not was] rich."

• Demands: "I insist that she go [not goes] to school."

• Suggestions: "I propose that our profession commit [not commits] itself to plain language," or "I suggest that judges be [not are] appointed on merit."

• Statements of necessity: "It is necessary that he be [not is] trained," or "It is imperative that the checks and balances be [not are] operating."

Learn the subjunctive, before some court does it for you.

Readability

I always show the readability levels for the column. They are (my writing only) 16 words per sentence, 12% passive voice, and grade level 8.4.

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Mark Painter has served as a judge on the Ohio First District Court of Appeals for 13 years, after 13 years on the Hamilton County Municipal Court.  Judge Painter is the author of 365 nationally published decisions, 120 legal articles, and six books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://store.cincybooks.com.  Judge Painter has given dozens of seminars on legal writing.  Contact him through his website, www.judgepainter.org.