Legal Writing Punctuation—Part II Gerald Lebovits

Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

Spring March, 2008

Do's, Don'ts & Maybes: Legal Writing Punctuation—Part II Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/110/ MARCH/APRIL 2008 VOL. 80 | NO. 3 JournalNEW YORK STATE BAR ASSOCIATION

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Unauthorized Publicity vs. Public Interest Also in this Issue Common-Law Dissolution by James A. Johnson in New York Outsourcing and Intellectual Property Rights Crime Victims Compensation THE LEGAL WRITER BY GERALD LEBOVITS

Do’s, Don’ts, and Maybes: Legal Writing Punctuation — Part II

n the last column, the Legal Writer “The attorney has worked at 123 after a lengthy introductory clause. discussed seven punctuation issues Justice Avenue, Elmhurst, New York A clause has a subject and a verb. A Iin legal writing. We continue with 11373, since 2001.” Don’t use commas phrase has a subject or a verb, but two more. between the state and the zip code. In not both. Introductory word examples: 8. Commas. Commas are meant to typing, add two spaces after the state “Honestly, I remember nothing about slow down language or replace words. and before a zip code. Example: “New the accident.” Writers often omit intro- To create a pause, add a comma. York, New York 10013.” ductory commas. Incorrect: “Thanks Put commas after salutations Use commas to separate digits. Bob.” Correct: “Thanks, Bob.” Correct: in informal writing. Example: “Dear The Bluebook tells writers to insert “Therefore, the plaintiff failed to prove Grandma Jane,” Use colons in formal commas only in figures containing negligence.” Also correct (without the writing. Example: “Dear Mr. Johnson:” five or more digits.1 The Association comma): “Therefore the plaintiff failed In formal and informal writing, use of Legal Writing Directors (ALWD) to prove negligence.” Introductory commas after closing. Examples: Citation Manual instructs writers to phrase example: “In Quebec City and “Sincerely,” “Very truly yours,” insert commas in numbers containing Montreal, students read and write in Put commas before titles. Examples: four or more digits.2 The New York French.” Introductory clause: “Although “Jane Smith, Esq.” “Bob Jones, Ph.D.” State Official Style Manual (Tanbook) Jane wrote the appellate brief, Mary “Tom Roe, M.D.” In a sentence, put doesn’t discuss the issue. The Bluebook: argued it on appeal.” Ambiguity or commas after titles. Example: “Sam “4500.” Insert a comma only when the miscue: “After the house blew up Mary Smith, Ph.D., conducted the psychiat- number exceeds four digits: “45,000.” sued.” Without the comma, the house ric evaluation.” Insert commas before ALWD: “4,500.” is a homicide bomber that blew Mary “Jr.” or “Sr.” only if the person uses a Use commas to contrast or empha- up. Correct: “After the house blew up, comma. If the person uses a comma, size words. Example: “Jane deposed Mary sued.” use commas before and after. Examples: three, not five, witnesses.” “William met “Judge John Smith, Jr., is presiding.” his client in Ithaca, not Schenectady.” “Judge John Smith, Sr., is presiding.” Set off interruptive phrases or tran- “After the house Don’t use commas to separate nouns sitional expressions with commas. The blew up Mary sued.” from restrictive terms of identification. most common interruptive phrases or Example: “Alexander the Great.” transitional expressions are the con- Without the comma, Use commas to set off dates. junctive adverbs “additionally,” “for Example: “The deposition is scheduled example,” “however,” “moreover,” the house is a for Wednesday, October 31, 2007.” “therefore,” and “thus.” Examples: homicide bomber that Don’t put a comma between a month “The attorney, however, spent too and the year. Correct: “July 2008 will be much time asking the witness irrel- blew Mary up. her sixth anniversary since she passed evant questions.” “The attorney, for the bar exam.” example, asked the witness what she Use commas to set off introductory A controversy exists about whether ate for breakfast.” “The plaintiff, there- phrases that add nonessential informa- to put a comma after the date if the date fore, failed to prove negligence.” tion to a preceding clause. Introductory appears within a sentence. The comma A controversy exists about intro- phrases will begin with words like is optional, but the Legal Writer rec- ductory commas. Use introductory these: “although,” “according to,” ommends it. Example: “On August 29, commas to clarify an introductory “after,” “despite,” “first,” “if,” “includ- 2007, she started law school.” word, clause, or prepositional or par- ing,” “irrespective of,” “particularly,” Use commas to separate parts of an ticipial phrase or subordinate clause, “perhaps,” “preferably,” “probably,” address and after the address. Correct: to avoid ambiguity or miscues, and CONTINUED ON PAGE 58

64 | March/April 2008 | NYSBA Journal THE LEGAL WRITER “Where’s the beef CONTINUED FROM PAGE 64 don’t need commas. Using test 2 to jerky?” Don’t use a insert “and”: “The firm bought three “provided that,” “regardless of,” and and new and affordable computers.” comma unless you “usually.” Examples: “Although she (No sense.) was sick, Ms. Jones finished the trial.” Use a comma to separate two parts mean “Where’s the “If the defendant appears this morn- of a double-comparative. Correct: “The beef, jerky?” ing, we’ll continue the trial.” sooner, the better.” “The more, the Use commas to set off tag questions. merrier.” Examples: “She finished cross-examin- Put a comma before a coordinating tioner’s summary-judgment motion; ing the witness, didn’t she?” “She’s an conjunction (“and,” “but,” “for,” “nor,” consequently, the court set the matter eloquent attorney, don’t you think?” “or,” “so,” “yet”) that joins two inde- for trial next week.” Or: “The court Use commas to separate coordinate pendent clauses. Don’t put a comma denied petitioner’s summary-judg- adjectives. Examples: “He’s a meticu- before a conjunction if the conjunc- ment motion. Consequently, the court lous, efficient attorney.” “After win- tion joins a dependent clause: a sen- set the matter for trial next week.” ning the trial, Joe bought a new, trendy tence that has no subject, verb, or both Using a comma instead of a semicolon convertible.” Because noncoordinate can’t stand on its own as a sentence. or a period will create a comma-splice adjectives carry equal weight, don’t Examples of conjunction joining two inde- run-on sentence. use commas to separate them. pendent clauses: “She lost her first trial, Separate a series of three or more Two tips to figure out whether the but she won every trial since then.” words or phrases by putting a comma adjective is coordinate or noncoordi- “The court attorney studied in the between them. The last comma in the nate: (1) Reverse the order of the adjec- law library, and while there he drafted series — the serial comma — is optional tives to see whether the sentence makes an opinion.” Examples of conjunction but preferred. (More on serial commas sense. Or (2) insert “and” between the joining a dependent clause: “She won will appear in the Legal Writer’s forth- adjectives to see whether the sentence her first trial but never won again.” coming column on legal-writing contro- makes sense. If the adjectives pass test “The court attorney studied in the law versies.) “And” example: “To prepare for 1, they’re coordinate adjectives and library and drafted an opinion there.” trial, Mike drafted the opening, Mary need commas. If the adjectives pass If the two independent clauses are drafted the closing, and I prepared the test 2, they’re coordinate adjectives and short, don’t insert a comma except to exhibits.” “Or” example: “After he leaves need commas. If the adjectives pass emphasize the second clause. Example: the courthouse, John eats at Forlini’s neither test, the adjectives are noncoor- “Lawyers speak and judges listen.” Or: Restaurant, Bagel Place, or Peking Duck dinate and won’t need commas. “Lawyers speak, and judges listen.” House.” Exceptions: Don’t add commas Using the examples above for tests Use commas to enclose appositives: if you join all the words, phrases, or 1 and 2: “He’s an efficient, meticu- nouns or pronouns that rename or statements with “and.” Example: “To lous attorney.” (Sentence makes sense explain the nouns or pronouns that prepare for trial, Mike drafted the open- when you reverse the adjectives.) follow. Examples: “Lawyer A, who ing and Mary drafted the closing and I “He’s a meticulous and efficient attor- practices in state court, and Lawyer Z prepared the exhibits.” ney.” (Sentence makes sense when appeared in federal court.” (Note the Don’t use a comma before an amper- you insert “and.”) “After winning the absence of a comma after “Lawyer Z.”) sand in a firm or organization’s name trial, Joe bought a trendy, new convert- “Harry argued before the Supreme unless the firm or organization’s name ible.” (Sentence makes sense when you Court, Appellate Division, Third uses a comma. Examples: “Mr. White reverse the adjectives.) “After winning Department.” “Anne, the celebrated works for Johnson, Brown & Roe LLP.” the trial, Joe bought a trendy and new trial attorney, answered questions from “Howard, Doe & Jones, P.C., represents convertible.” (Sentence makes sense the press.” “The defendant, accord- the plaintiff in the lawsuit.” when you insert “and.”) ing to witnesses, shot the victim three Never put commas after exclama- Consider this: “The firm bought times in the chest.” tion points or question marks follow- three new affordable computers.” If a conjunctive adverb (“according- ing a quotation. Incorrect: “I declare Using test 1 to reverse the adjectives: ly,” “again,” “also,” “besides,” “con- a mistrial!,” the judge said. Correct: “The firm bought new three affordable sequently,” “finally,” “for example”) “I declare a mistrial!” the judge said. computers.” “The firm bought afford- joins two independent clauses, use Incorrect: “Are you finished with this able three new computers.” “The firm semicolons or periods, not commas, witness?,” the judge asked. Correct: bought affordable new three comput- to set off the clauses. Incorrect: “The “Are you finished with this witness?” ers.” “The firm bought new affordable court denied petitioner’s summary- the judge asked. three computers.” The sentences make judgment motion, consequently, the Don’t use a comma after a “that” no sense regardless which test you use. court set the matter for trial next before quotation marks when the The adjectives are noncoordinate; they week.” Correct: “The court denied peti- “that” precedes a quotation. Incorrect:

58 | March/April 2008 | NYSBA Journal The judge found that, “the witness is refers to. “Which” often precedes non- “How’s your wife Samantha?” Leaving incredible.” Correct: The judge found restrictive phrases. If you remove a out the comma in this example would that “the witness is incredible.” Or nonrestrictive phrase from a sentence, be correct if the person has more than (without a “that”): The judge found “the the sentence will retain its meaning. one wife. Correct: “How’s your wife, witness . . . incredible.” Restrictive phrases don’t need com- Samantha?” (But even that example Don’t use a comma when other mas. A phrase is restrictive when it’s can be a miscue. Is the reader discuss- material precedes and follows the quo- essential to the meaning of the sen- ing Samantha, or is Samantha the per- tation. Correct: “The judge’s repetitions tence. Restrictive phrases are defining: son’s wife?) of “Stop arguing like children” didn’t They identify which things or people In Bluebook and ALWD format, pacify the attorneys. the clause refers to. “That” often pre- put commas after citations when cit- Use a comma to introduce a quota- cedes restrictive phrases. Example of a ing in text:3 “The court in X v. Y, 99 tion only (1) when the quotation is an nonrestrictive phrase: “The car, which F.4th 99 (14th Cir. 2002), held that independent clause and (2) when what was light blue, slammed into the pedes- . . . .” This issue doesn’t arise under the precedes the quotation is inapposite to trian.” That example presupposes that Tanbook, which requires that paren- the quotation or to replace a “that” or a one car among others on the road hit theses enclose a citation in the text and “whether” before the quotation. If you the pedestrian. Example of a restrictive forbids commas to surround the paren- wouldn’t add a comma if the sentence phrase: “The courtroom that seats 250 theses: “The court in X v Y (99 F4th 99 had no quotation marks, don’t add a occupants had a back room for special [14th Cir 2002]) held that . . . .”4 comma before the quotation marks events.” That example presupposes the According to ALWD, the Bluebook, just because there are quotation marks. existence of more than one courtroom. and the Tanbook, don’t put commas Example when the quotation is an indepen- Use a comma to omit an elliptical after signals.5 Incorrect: Accord, But see, dent clause: The witness stated, “I was word, a word a reader can replace Compare, Id., See, See also,. In Bluebook walking down Centre Street when I immediately. Example: “He picked format, use a comma before and after noticed the defendant.” Example of what juror number 4; she, juror number 6.” “e.g.” when you use it with other sig- precedes the quotation is inapposite to the The comma replaces “picked.” nals.6 Example: “See, e.g.,” “But see, e.g.,” quotation: “The attorney worked as an Never use a comma before a verb. Put commas inside quotation marks. associate at Roe & Doe, “and for three Incorrect: “Knowing when to use com- Example: “I have no further questions years he never tried a case.” Examples mas, creates problems for lawyers.” for this witness,” the attorney said. of a comma replacing “that”: Judge Doe Eliminate that comma. 9. Hyphens. Hyphens divide single ruled, “The case must be dismissed on Don’t use a comma before “because” words into parts or join separate words jurisdictional grounds.” “As Judge Doe unless the sentence is long or complex. into single words. explained, “The case must be dismissed Example of an unnecessary comma: “The Use hyphens (“-”) to divide words on jurisdictional grounds.” Example of a associate was late, because she had a between syllables from one line to comma replacing “whether”: The issue is, flat tire.” Example of a necessary comma: the next. Put the hyphen after the last “City Court had the authority to order “I knew that James would be promot- letter on the first line, not at the begin- petitioner to write a reference letter for ed to partner that morning, because ning of the second line. Don’t put any respondent.” Fred’s sister worked in the same firm spaces before or after the hyphen. Use commas to set off parenthetical and she called me with the news.” Never use a hyphen to divide a one- expressions, or unimportant comments The comma is necessary here because syllable word. or information. Example: “His argument the reader might believe that James Hyphenate names if the individual is, in my opinion, frivolous and weak.” was promoted because Fred’s sister uses that style. Example: “Ms. Smith- Put commas after parentheticals, not worked in the same firm. Green.” before them. Incorrect: “The attorney Never use a comma after a com- Words evolve. Long ago, we said attended New York University School pound subject. Incorrect: “Court attor- “tele phone,” not-so-long-ago we said of Law, (NYU) graduating summa cum neys use Westlaw, Lexis, and Loislaw, “tele-phone,” and now we say “tele- laude in 2001.” Correct: “The attorney nearly every day.” Correct: “Court phone.” With frequent use, compound attended New York University School attorneys use Westlaw, Lexis, and words join to become single words. of Law (NYU), graduating summa Loislaw nearly every day.” Examples: “backpack,” “bumblebee,” cum laude in 2001. Use commas to eliminate confu- “copyright,” “deadlock,” “headlight,” Use commas to set off nonrestric- sion. Example: “You’re a better attorney “weekend.” Other compound words tive phrases. A phrase is nonrestrictive than I, Mary Beth.” Include the comma haven’t become single words; when it isn’t essential to the meaning unless you mean “I Mary Beth.” they’ve kept their hyphens. Examples: of a sentence. Nonrestrictive phrases Example: “Where’s the beef jerky?” “simple-minded,” “well-being.” Some are nondefining: They don’t identi- Don’t use a comma unless you mean fy which things or people the clause “Where’s the beef, jerky?” Incorrect: CONTINUED ON PAGE 60

NYSBA Journal | March/April 2008 | 59 CONTINUED FROM PAGE 59 or a superlative (“best,” “better,” Hyphenate when not hyphenating “more” ). The Legal Writer recommends is visually troubling, such as when are spelled as separate words: “lame hyphenating. Example: “The law text- the prefix ends with the same letter duck,” “mountain range.” Always books were the highest priced books.” that begins the word. Example: “anti- check a dictionary to see whether a Becomes: “The law textbooks were the injunction,” “anti-intellectual,” “de- word takes a hyphen or whether it’s highest-priced books.” Example: “New emphasize.” Exceptions: “coordinate,” become a single word. York State judges are no longer in the “cooperate,” “unnatural.” Some writers oppose combining upper income bracket.” Becomes: “New Hyphenate when the base is a prop- words with hyphens to form compound York State judges are no longer in er noun. Examples: “anti-Nixon,” “pro- adjectives. The Legal Writer recom- the upper-income bracket.” Example: Washington.” mends hyphenating to avoid confusion “He was the best qualified candidate Hyphenate when using the words and miscues. Example: “He’s a small for Surrogate’s Court.” Becomes: “He “all,” “ex,” “quasi,” or “self.” Example claims arbitrator.” If you don’t hyphen- was the best-qualified candidate for of “all”: “all-inclusive.” Example of ate, readers might believe that he’s a Surrogate’s Court.” “ex”: “an ex-court attorney.” But con- claims arbitrator who’s short. Correct: Hyphenate compound numbers sider “ex-patriot” versus “expatriot.” “He’s a small-claims arbitrator.” Or: from twenty-one to ninety-nine under Example of “quasi”: “quasi-contractual,” “He’s a Small Claims arbitrator.” the Bluebook.7 Under the Tanbook, use “quasi-complete.” Examples of “self”: Some tips: Hyphenate a compound figures for the figure 10 and higher.8 “self-control,” “self-defense,” “self- adjective appearing before a noun. Use hyphens to write fractions: employed.” Don’t hyphenate when Examples: “The attorney had a choco- “one-fourth.” adding “self” to a suffix, or letters late-colored briefcase.” “He’s a criminal- Hyphenate after “well” when you added to the end of a word: “selfless.” defense practitioner.” Don’t hyphenate use “well” in an adjectival phrase. On your computer keyboard, the when the compound adjective appears Examples: “He’s a well-known attor- “hyphen” key is next to the “sym- after the noun. Examples: “The attorney.” “The firm’s summer interns are bol” keys, usually after the “zero” key. ney’s briefcase was chocolate colored.” a well-matched team.” Otherwise, Don’t press the “Shift” key; if you do, “He practices criminal defense.” Don’t hyphenate after “well” if the phrase you’ll insert an underscore “_” instead use a hyphen to join an adverb ending doesn’t mean the same thing if it’s of a hyphen “-”. in “ly” to another word. The modi- flipped around. Example: “Judge Roe is The Legal Writer continues with fier “ly” already trips off the tongue. well-read.” Hyphenate because Judge punctuation in the next column. ■ Incorrect: “The jury found him guilty of Roe can’t be read well, unless he has criminally-negligent homicide.” Correct: lots of tattoos. 1. The Bluebook: A Uniform System of Citation R. 6.2(a)(vii), at 73 (Columbia Law Review Ass’n et al. “The jury found him guilty of crimi- Hyphenate suspension adjectival eds., 18th ed. 2005). nally negligent homicide.” phrases. Examples: “First-, second-, and 2. Association of Legal Directors (ALWD) Citation Hyphenate uppercased nonprop- third-year associates will attend the Manual R. 4.2(h)(1), at 31 (3d ed. 2006). er-noun adjectival phrases. Example: holiday party.” 3. Bluebook R. 10.2, at 81; ALWD R. 43.1(c) (3), at 318. “Legal-Writing Seminar.” Don’t Some writers don’t hyphenate titles 4. New York Law Reports Style Manual (Tanbook) hyphenate capitalized proper-noun denoting a single office. Examples: R. 1.2(b), at 2 (2007), available at http://www. adjectival phrases. Incorrect: “Off- “Attorney at law,” “editor in chief,” nycourts.gov/reporter/New_Styman.htm (html version) and http://www.nycourts.gov/reporter/ Centre-Street Jam, Inc.” Correct: “Off “vice president.” The Legal Writer, like NYStyleMan2007.pdf (pdf version) (last visited Centre Street Jam, Inc.” the Tanbook,9 recommends that you Dec. 11, 2007). Don’t insert a hyphen in a com- hyphenate. Becomes: “Attorney-at-law,” 5. ALWD R. 44.6(a), at 325; Bluebook R. 1.2, at pound predicate adjective whose sec- “editor-in-chief,” “vice-president.” 46-47; Tanbook R. 1.4(a), at 6. 6. Bluebook R. 1.2 (a), at 46. ond element is a past or present par- Hyphenate a title that precedes 7. Bluebook R. 6.2(a), at 73 (“[S]pell out the num- ticiple. Incorrect: “The effects were far- “elect.” Examples: “Treasurer-elect,” bers zero to ninety-nine in the text and in footnotes reaching.” Correct: “The effects were “President-elect.” . . . .”). far reaching.” But: “The judge’s opin- Hyphenate to join words thought of 8. Tanbook R. 10.2 (a)(1), at 72 (2007). ion had far-reaching effects.” as one expression. Example: “Secretary- 9. Id. app. 5, at 127.

Don’t hyphenate foreign words treasurer.” GERALD LEBOVITS is a judge of the New York City used in an adjectival phrase. Incorrect: Hyphenate prefixes, or letters added Civil Court, Housing Part, in Manhattan and an “Mens-rea element.” Correct: “Mens to the beginning of a word, when omit- adjunct professor at St. John’s University School rea element.” ting the hyphen will confuse the reader. of Law. He thanks court attorney Alexandra Some writers recommend against Examples: “pre-judicial” versus “preju- Standish for researching this column. Judge hyphenating a two-word modifier if dicial,” “re-sign” versus “resign,” “re- Lebovits’s e-mail address is [email protected]. the first word is a comparative (“first,” count” versus “recount,” “re-cover” ver- “greater,” “higher,” “lower,” “upper”) sus “recover,” “re-sent”versus “resent.”

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