Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

Winter January, 2008

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

Available at: https://works.bepress.com/gerald_lebovits/107/ JANUARY 2008 VOL. 80 | NO. 1 JournalNEW YORK STATE BAR ASSOCIATION

Our Children, Our Future A special issue on New York’s children THE LEGAL WRITER BY GERALD LEBOVITS

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

n the last column, the Legal Writer put on a jacket.” In this example, there’s a subject complement. Example: “The discussed 10 grammar issues. We no punctuation between the two inde- attorney is an intelligent man.” “A” Icontinue with another 10. pendent clauses. The first clause is “It’s precedes a word that begins with the 11. The Run-on Sentence. A run-on cold in the courtroom”; the second sound of a consonant, even if the word sentence isn’t a long sentence. A run-on is “I should put on a jacket.” To fix begins with a vowel, such as “eulogy.” sentence is formed when (1) a conjunc- this run-on sentence, put a semicolon “An” precedes a word that begins with tive separates two independent or a period between the independent a vowel sound, even if the word begins clauses (clauses that could serve as clauses. If appropriate, include one of with a consonant. Use “an” before a separate sentences) and a semicolon or the conjunctive listed above. silent “h”: “an heir.” Use “a” before a period doesn’t precede the adverb; Becomes: “It’s cold in the courtroom; I an aspirated, or pronounced, “h”: “a (2) no punctuation separates two inde- should put on a jacket.” Or: “It’s cold historic occasion,” “a history book.” pendent clauses; or (3) a splices in the courtroom. I should put on a “The” is a definite that refers to two independent clauses. jacket.” Or: “It’s cold in the courtroom; someone or something specific. “The” Example 1 — the conjunctive adverb thus, I should put on a jacket.” Or: “It’s begins a phrase to refer to some- run-on: “Judge Doe wrote the opinion, cold in the courtroom. Thus, I should thing already known to listeners or however, he never read it to the liti- put on a jacket.” to assert the existence of something. gants.” In this example, “however” is Example 3 — the comma-splice run-on: Examples: “The courthouse is across the the conjunctive adverb separating two “It’s cold in the courtroom, I should put street.” “The shortest attorney in New independent clauses, or clauses that on a jacket.” In this example, a comma York County was the most successful could be a full sentence. Examples of separates the independent clauses. Fix attorney.” conjunctive adverbs are “accordingly,” this run-on sentence the same way as in Use an article before a : “again,” “also,” “anyway,” “besides,” Example 2: Put a semicolon or a period a noun that names something that “certainly,” “consequently,” “finally,” between the independent clauses and can be counted. Don’t use an article “for example,” “further,” “further- include a conjunctive adverb. before a noncount noun or a mass more,” “hence,” “however,” “inciden- It’s not a run-on sentence to sep- noun: a noun that can’t be counted. tally,” “indeed,” “instead,” “likewise,” arate two independent clauses with Incorrect: “My law clerk celebrated “meanwhile,” “moreover,” “neverthe- a coordinating such as birthday yesterday.” Becomes: “My law less,” “next,” “nonetheless,” “on the “and,” “but,” “or,” “for,” “nor,” “so,” clerk celebrated a birthday yesterday.” other hand,” “otherwise,” “rather,” or “yet.” Example: “Lawyer X read the (“Birthday” is a count noun.) Incorrect: “similarly,” “still,” “then,” “thereafter,” decision, but he didn’t understand a “The witness asked for glass of water.” “therefore,” “thus,” and “undoubt- word of it.” Becomes: “The witness asked for a glass edly.” In Example 1, no semicolon or Exception: It’s not a run-on sentence of water.” (Glasses can be counted.) period precedes the conjunctive adverb to use asyndetons: independent claus- Incorrect: “He showed a courage when “however.” To fix this sentence, put a es not joined by conjunctions. Example: he jumped into the lake to save the semicolon or a period after “opinion.” “I came, I saw, I conquered.” baby.” Becomes: “He showed courage Then put a comma after the conjunctive Run-on sentences are hard to read; when he jumped into the lake to save adverb. Example 1 becomes: “Judge Doe therefore, never use them. the baby.” (“Courage” is a . wrote the opinion; however, he never 12. Articles. “A” and “an” are indef- An article may not precede “courage,” read it to the litigants.” Or: “Judge Doe inite articles that refer to someone or which can’t be counted.) wrote the opinion. However, he never something general. Use “a” and “an” 13. Adverbs. Adverbs are words read it to the litigants.” to begin a noun phrase. Example: “A that modify a , an , or Example 2 — the no-punctuation run- juror was disqualified for speaking on: “It’s cold in the courtroom I should with the press.” Use “a” or “an” as Continued on Page 74

80 | January 2008 | NYSBA Journal The Legal Writer (3) dangling modifiers; and (4) awk- Eric told his daughter he would play Continued from Page 80 ward separations. with her after the meeting? Two correct A misplaced modifier occurs when versions: “Eric told his daughter he another adverb. Adverbs tell when, you improperly separate a word, would play with her when the meet- where, why, or under what conditions phrase, or clause from the word it ing was over.” Or: “When the meeting something happens or has happened. describes. Some commonly misplaced was over, Eric told his daughter that he Most adverbs end in “ly.” Examples: words: “almost,” “even,” “exactly,” would play with her.” “badly,” “completely,” “happily,” “hardly,” “just,” “merely,” “nearly,” Where you position a squinting “lazily,” “quickly,” and “slowly.” You “only,” “scarcely,” and “simply.” adverb (“almost,” “even,” “exactly,” can’t rely on this rule to recognize Example of a misplaced word: “She “hardly,” “just,” “merely,” “nearly,” adverbs; some end in “ly”: almost sold all her used law books at “only” “scarcely,” “simply,” or “sole- “friendly,” “lovely.” the garage sale.” The writer isn’t try- ly”) affects the sentence. Incorrect: “The Some adverbs are hard to recog- ing to say that “she almost sold all her court attorney only made one mistake.” nize. Examples: “afterward,” “almost,” used law books.” The writers means Becomes: “The court attorney made to say, “She sold almost all her law only one mistake.” Examples: “She only books at the garage sale.” Example of nominated Matthew for partner.” (She Run-on sentences a misplaced phrase: “Throw your sister didn’t vote for him.) “She nominated are hard to read, out the window the Bluebook.” The only Matthew for partner.” (She didn’t writer isn’t trying to say “Throw your nominate anyone else.) therefore, never sister out the window.” The writer A modifier dangles when the noun means to say: “Throw the Bluebook or to which a phrase or clause use them. to your sister.” Therefore: “Throw the refers is in the wrong place or miss- Bluebook out the window to your sis- ing. Sometimes the dangling modi- “already,” “back,” “even,” “far,” “fast,” ter.” Example: “She served punch to the fier is at the beginning of the sentence. “hard,” “here,” “how,” “late,” “long,” attorneys in paper cups.” The writer Sometimes it’s at the end. Example “low,” “more,” “near,” “never,” “next,” isn’t trying to say that “the attorneys of a dangling : “Once edited “now,” “often,” “only,” “quick,” “rath- were in paper cups,” but that’s the and rearranged, Bill received an A+.” er,” “slow,” “soon,” “still,” “then,” effect. Therefore: “She served punch in This suggests that “Bill” was edited “today,” “tomorrow,” “too,” “when,” paper cups to the attorneys.” Example and rearranged. Therefore: “Once he “where,” and “yesterday.” of a misplaced clause: “She returned the edited and rearranged his law-school Put the adverb next to the word it car to the dealer that was defective.” paper, Bill received an A+.” Example modifies. Incorrect: “It almost seems This sentence suggests that the dealer, of a dangling : “After editing for impossible to finish the brief by July.” not the car, was defective. Therefore: an hour, the brief looked good.” This Becomes: “It seems almost impossible “She returned the defective car to the suggests that “the brief” was editing to finish the brief by July.” Incorrect: dealer.” Example: “He remembered that for an hour. Therefore: “After I edited “Don’t you ever remember writing the he forgot his brief when he reached the brief for an hour, the brief looked brief?” Becomes: “Don’t you remember the courthouse.” This suggests that good.” Example of dangling : ever writing the brief?” “he forgot his brief when he reached “To write a brief, a computer is needed Incorrect: “He drove slow.” In this the courthouse.” Therefore: “When he for efficiency.” Because “a brief” is example, you want “slow” to modify reached the courthouse, he remem- positioned next to “a computer,” the the verb “drive.” To determine wheth- bered that he forgot his brief.” Or: writer suggests that a computer can er “slow” is correct, ask yourself: How “He remembered when he reached the write a brief. Therefore: “For efficiency, did he drive? Slowly. Therefore: “He courthouse that he forgot his brief.” a computer is needed to write a brief.” drove slowly.” Incorrect: “Use adverbs A squinting modifier is a modifier Or: “To write a brief, you’ll need a correct.” Ask yourself: How should I that might refer to a preceding or a fol- computer for efficiency. Or: “To write use adverbs? Correctly. Therefore: “Use lowing word. Like a misplaced modi- a brief, an attorney needs a computer adverbs correctly.” fier, a squinting modifier creates con- for efficiency.” Example of a dangling Put adverbs at the beginning of sen- fusion. Unlike a misplaced modifier, elliptical clause: “When just five years tences for emphasis or when you want the adverb might function perfectly in old, my father taught me how to cross- to qualify the entire sentence. Correct: the sentence structure but its meaning examine my sister.” Because “when “Fortunately, no one was in the court- might be ambiguous. Example: “Eric just five years old” is positioned next room when the ceiling fell down.” told his daughter when the meeting to “my father,” the sentence suggests 14. Modifiers. Writers encounter was over he would play with her.” that “my five-year-old father taught four modifier problems: (1) misplaced Is it that Eric spoke to his daughter me how to cross-examine my sister.” modifiers; (2) squinting modifiers; when the meeting was over? Or that Therefore: “When I was just five years

74 | January 2008 | NYSBA Journal old, my father taught me how to cross- “dessert” to mean “sweet.” Examples: “Who” is the subject. Example: “Who examine my sister.” “His partner deserted him in the wrote the brief? Jane!” “Whom” can be An awkward separation creates con- hall.” “Bring plenty of water and a an object or a subject. Object example: fusion. Incorrect: “Many students have, hat when you travel in the desert.” “I “Whom did you see at the corner?” by the time they finish law school, love decadent desserts.” Use “its” to Subject example: “Jane is the person interned for a judge.” The sentence is show possession. Use “it’s” to mean whom defendant shot.” Here’s a tip: confusing because the “it is” or “it has.” Examples: “What is Answer the implicit question the sen- “have” is separated from the main its color? It’s beige.” “It’s freezing in tence raises to see whether “he” (“she”) verb “interned.” Therefore: “By the time the courtroom.” Use “less” for things or “him” (“her”) can replace “who” they finish law school, many students that can’t be counted or which can be or “whom.” “He” or “she” replac- have interned for a judge.” Or: “Many counted, but only as a group, not indi- es “who.” “Him” or “her” replaces students have interned for a judge by vidually. Use “fewer” for things that “whom.” Incorrect: “Who do you want the time they finish law school.” can be counted individually. Example: to argue the case?” Becomes: “Whom do Misplaced prepositions lead to mis- “Less sand; fewer grains of sand.” Use you want to argue the case?” Answer: I cues. Make sure, for example, not to “loose” when you mean “unfastened.” want him or I want her to argue the put the word “with” is in the final Use “lose” when you mean “misplace.” case. An unnecessary “whom”: “Jane position of a sentence. Incorrect: “The Example: “My button is loose.” “I’ll lose is the person whom defendant shot.” defendant robbed a bank with money.” my tie if I don’t fasten it.” Use “princi- An unnecessary “who”: “Jane is the In this example, the reader might won- pal” when you mean “main” or “head person who defendant shot.” Becomes: der why the defendant didn’t use a of school.” Use “principle” when you “Jane is the person defendant shot.” gun. mean “rule.” Examples: “In this town, 17. The Sentence Extra. Eliminate 15. Problem Words and Pairs. You this is the principal road.” “The prin- the unnecessary “that” in a string of can’t “bare” it when two words sound cipal, Mr. Discipline, isn’t my friend.” clauses. Incorrect: “The law clerk said alike or when they’re spelled alike. Or “I follow all the principles of writing.” that although she will draft the opin- is it “bear” it? Don’t let it “affect” you. Use “than” to compare. Use “then” to ion, that no one will read it.” Correct: Or is it “effect” you? mean “at that time.” Examples: “New “The law clerk said that although she Use “accept” when you mean York has more attorneys than Hawaii.” will draft the opinion, no one will read “take.” Use “except” when you mean “New York was then unpopulated.” it.” Also eliminate extra prepositions. to “leave out.” Example: “Please accept Use “their” when you mean “belong- Consider this James Bond lyric from my apology.” Or: “Everyone except for Lawyer Lee went to court.” Use “affect” when you mean “ to influence” Misusing words will effect your writing. or “a feeling or state.” Use “effect” Pick on the right idiom. when you mean “something resulting from another action” or “to come into Use adverbs correct. being.” Example: “Mr. X, whose manner is affected, put his theory into effect. ing to them.” Use “there” when you the Wings’ classic “Live and Let Die”: His theory had a profound effect. It mean “place.” Use “they’re” when you “But if this ever changing world in affected many things.” Use “already” mean “they are.” Examples: “They used which we live in . . . .” Boring but cor- when you mean “before.” Use “all their car to get to New York.” “How do rect: “But if this ever changing world in ready” when you mean “prepared.” I get there?” “They’re coming to New which we live . . . .” Or: “But if this ever Example: “She already left for court.” York.” Use “weather” to mean “envi- changing world that we live in . . . .” Or: “She was all ready to go to law ronmental conditions.” Use “whether” 18. “That” Versus “Which.” “That” school.” Use “all together” when you to mean “if.” Examples: “The weather is a pronoun. “Which” mean “everyone at once.” Use “alto- will be hot and muggy tomorrow.” “I is an interrogative pronoun. Examples: gether” when you mean “completely.” don’t know whether it will be hot or “that brief”; “which brief?” “That” is Example: “We jumped off the court- muggy tomorrow.” Use “your” when restrictive or defining. “That” intro- house stairs all together.” Or: “Lawyer you mean “belonging to you.” Use duces a restrictive clause: a clause Lee is altogether lazy.” Use “bare” “you’re” when you mean “you are.” necessary to the sentence’s meaning. to mean “uncovered.” Use “bear” to Examples: “Your argument was bril- “Which” isn’t restrictive or nondefin- mean “animal” or “endure.” Examples: liant.” “You’re brilliant.” ing. “Which” introduces a nonrestric- “The baby’s head was bare.” “I saw 16. Who and Whom. It isn’t egre- tive clause: a clause unnecessary to the bear climb a tree.” “I can’t bear gious to use “who” instead of “whom.” the sentence’s meaning. Use “that” to to sit in court.” Use “desert” to mean But it’s unforgivable to use “whom” introduce essential information. Use “leave behind” or “arid region.” Use instead of “who” to sound erudite. “which” to define, add to, or limit

NYSBA Journal | January 2008 | 75 information. usually set off a hopeful.” “Jack is the least competent case” or “dissent from the majority clause beginning with “which.” attorney in the firm.” “As a litigator, he opinion.” “Equivalent with” becomes Here’s a tip: If the word or con- became most successful.” “equivalent to” or “equivalent of.” cept before the “that” or the “which” Some adjectives have irregular “Free of” becomes “free from.” “Grad- is one of several, use “that.” If the comparative and superlative forms. uated law school” becomes “graduated word or concept before the “that” or Examples: “bad” (ill) becomes “worse” or from law school” or “was graduated the “which” expresses a totality, use “worst.” “Far” becomes “farther” (dis- from law school.” “Identical to” becomes “which.” Example 1: “Judge Right must tance) or farthest.” “Far” also becomes “identical with.” “In accordance to” impose a sentence, which he doesn’t “further” or “furthest” (additional or becomes “in accordance with.” want to impose.” Example 2: “Judge distance). “Good” (well) becomes “bet- “Inadmissible for evidence” becomes Right must impose a sentence that he ter” or “best.” “Little” becomes “less,” “inadmissible into evidence” or “inad- doesn’t want to impose.” Use “which” “lesser,” or “littler” in the comparative missible for the purpose of impeach- if Judge Right must impose but one form. “Little” becomes “least” or “lit- ment.” “In search for” becomes “in search sentence and doesn’t want to impose tlest” in the superlative form. “Much” of.” “Insured from a loss” becomes it. Use “that” if Judge Right, who has (many) becomes “more” or “most.” “insured against loss” or “insurance on several sentences to impose, doesn’t 20. The Right Idiom. An idiom is a the property” or “insurance for the busi- want to impose only one of them. phrase whose meaning is greater than ness.” “Plead the Fifth Amendment” Another tip: If you can drop the the sum of its parts. Some incorrect becomes “take [or invoke] the Fifth clause and still retain the meaning of idiomatic expressions in legal writing: Amendment.” “Prefer . . . over” becomes the sentence, use “which.” If you can’t, “Abide from a ruling” becomes “abide “prefer . . . to.” “Relation with” becomes use “that.” Example 1: “The trial exhib- by a ruling.” “Accord to” becomes “relation to.” “Relations to” becomes its that were damaged in the fire were “accord with.” “Adverse against” “relations with.” “Released from a debt” my exhibits.” Example 2: “My trial becomes “adverse to.” “Angry at” or “released into custody” or “released exhibits, which were 8 x 10 inch color becomes “angry with.” “Appeal at a by the court.” “Stay for awhile” becomes photographs, were damaged in the court” becomes “appeal to a court.” “As “stay a while” or “stay for a while.” “Ties fire.” In Example 1, if you drop the regards to” becomes “as regards.” with” becomes “ties to.” “Warrant for “that” clause” (“that were damaged”), “Authority about” becomes “authority eviction” becomes “warrant of eviction.” the entire sentence would lose its mean- on.” “Blame it on me” becomes “blame In the next issue, the Legal Writer ing. In Example 2, if you drop the me for it.” “Centers around” becomes will discuss the do’s and don’ts of “which” clause (“which were 8 x 10 “revolves around” or “centers on,” punctuation. ■ inch color photographs”), the sentence “centers in,” or “centers at.” “Comply would make sense. The “which” clause to” becomes “comply with.” “Contrast in Example 2 adds information. In to” becomes “contrast with.” “Convicted GERALD LEBOVITS is a judge of the New York City Example 1, the “that” clause defines the for [or in] a crime” becomes “convicted Civil Court, Housing Part, in Manhattan and an entire sentence and gives it meaning. of a crime.” “Correspond with,” as a adjunct professor at St. John’s University School 19. Comparisons. Use the compara- comparison, becomes “correspond to.” of Law. He thanks court attorney Alexandra tive degree to compare two persons You “correspond with” when you write Standish for assisting in researching this column. or things. Use the superlative degree a letter to someone. “Desirous to” Judge Lebovits’s e-mail address is GLebovits@ when you want to compare more than becomes “desirous of.” “Dissent from aol.com. two persons or things. this case” becomes “dissent in this For some adjectives that have one syllable and some adjectives that have two syllables, form the comparative by adding “er” and form the superla- tive degree by adding “est.” Examples: “Fine” becomes “finer” or “finest.” “Friendly” becomes “”friendlier” or “friendliest.” For some two-syllable adjectives and most adjectives that have more than two syllables, form the compara- tive by adding “more” or “less.” For these adjectives, form the superlative by adding “most” or “least.” Examples: “The recent decision seemed more

76 | January 2008 | NYSBA Journal