Oregon State Bar Bulletin — NOVEMBER 2006

The Legal Writer
Six To Nix: Grammar rules to leave behind
By Suzanne E. Rowe

For some of us grammar curmudgeons, the modern world is a horrifying place. Rules that we learned early and followed slavishly seem to be unknown to a majority of even our literate friends. Our most brilliant colleagues ignore rules that for centuries have provided structure to the English language.

Sadly, we curmudgeons may need to cut the apron strings tying us to our high school teachers and find our way in the modern world. These six rules are among the first we can leave behind.

Prepositional Endings
"Never end a sentence with a preposition" was pounded into our heads. We dutifully learned what a preposition was and found artful (if sometimes convoluted) ways to avoid having one of the nasty little things placed right next to a period. Alas, the Chicago Manual of Style points out that most writers now find this rule "an unnecessary and pedantic restriction."

Winston Churchill agreed. He is credited with saying of the rule, "That is the type of arrant pedantry up with which I shall not put." Clearly, he was making the point that placing "with" at the end of the sentence would not have hurt nearly as much as the convolutions needed to avoid that construction. Notice how much more comfortable and clear the sentence is rewritten as "That is the type of arrant pedantry I will not put up with."

Split Infinitives
Fewer and fewer law students seem to know what an infinitive is, which may mean more and more attorneys are innocently splitting the "to" from the verb’s root.

A quick lesson: The infinitive is the form of any verb preceded by "to." Examples include "to argue," "to testify" and "to negotiate." The split occurs when an adverb is placed between the "to" and the verb root. For years, careful writers following this rule have rewritten "to persuasively argue" as "to argue persuasively."

To the modern ear, the split is acceptable, or even preferred. The Chicago Manual of Style says that splitting infinitives is sometimes justified, for example "to add emphasis or to produce a natural sound." Would Star Trek have been as popular if the Enterprise’s mission had been "to go boldly where no man has gone before"? Somehow "to boldly go" packs more punch.

Avoiding the split infinitive can change the meaning of a sentence. Compare the following:

Example A: The lawyer decided to flatly state her client’s bottom line.

Example B: The lawyer decided to state flatly her client’s bottom line.

In the first sentence, the lawyer is being definitive; in the second, she is being dull.

One interesting explanation for this rule is that in Latin no infinitives are split. Because Latin was long considered the purest of languages, some folks tried to match English rules to Latin rules. Of course, in Latin, the infinitive is one word, so it can’t be split. Applying that rule to English doesn’t make sense.

"Because" Beginnings
Grammar teachers got tired of students creating sentence fragments by sticking a period just before the "because" clause. As a result, some of us were taught to never start (notice the split infinitive?) a sentence with "because." Isn’t the following fragment painful?
The defendant argues that the claim should be dismissed. Because the plaintiff fails the threshold test.

Rather than creating a new rule, grammarians could have avoided the problem with a simple eraser. Just take out the period:

The defendant argues that the claim should be dismissed because the plaintiff fails the threshold test.

The sentence works just as well reversed, even though it starts with "because."

Because the plaintiff fails the threshold test, his claim should be dismissed.

Beginning with "because" can create powerful prose by giving the reason first and deleting excess words.

Wandering "However"
For reasons I haven’t determined, some curmudgeons believe that no sentence should begin with the word "however." Modern usage has relaxed to the point where the following sentence raises almost no eyebrows: "However, the statute can also be interpreted more narrowly."

Uniformly avoiding sentences that begin with "however" prevents perfectly normal construction, as in the following example: "However the junior attorney prepared, he was often caught off guard by the partner’s insightful questions."

The Informal Dash
Dashes are the stylish cousins of commas. Dull commas, long the workhorse of the English sentence, can be used to set off parts of sentences. Stylish dashes—to the dismay of English teachers everywhere—set off the same information with flair. Some grammar curmudgeons may still believe that dashes are too informal for legal documents. Used sparingly, however, they can be quite effective.

If you use dashes, be sure that they are all the same length and use the same spacing. Notice the differences—you can hardly miss them – between the two dashes used in this sentence. The first one is an "em" dash; it’s longer (and note that it touches both words around it). This is the preferred form. The em dash’s little brother is the "en" dash; it’s a bit shorter than the "em" dash, but longer than a hyphen. If you mix the dashes in one document, even a minor curmudgeon may be distracted.

We create verbalizations when we take perfectly good nouns and turn them into verbs. "Access" began its life as a noun meaning a way of entering, for example, an access to a building. Computer technology turned it into a verb. Now we access files online. Well, curmudgeons don’t. They dutifully add a verb so that they "gain access to files online."

Some verbalizations slip easily into our common usage and cause few problems beyond jarring the ear of curmudgeons. Most verbalizations take some time to become familiar and feel comfortable to us. Do our clients gift their favorite charities? They may not yet, but in another 10 years they probably will.

To see whether you are ready to enter the modern world of grammar, consider the following examples:

1. The juror’s mind wandered because he had nothing to look at.

I’ll bet you didn’t notice the preposition "at" just before the period. Ending a sentence with a preposition is really fine.

2. The judge allowed the prosecutor a few moments to briefly summarize her point.

Would you have preferred for the prosecutor "to summarize briefly" to avoid splitting the infinitive? Probably not.

3. Because of heavy rain, the construction site could not be inspected.

There’s no problem beginning this sentence with "because." The result that follows in the next clause avoids a sentence fragment.

4. However, the inspector said he would return the following week.

Here, too, there’s no problem beginning this sentence with "however." Note that the sentence would have worked just as well with the "however" tucked in the middle: "The inspector, however, said he would return the following week." The meaning may shift slightly, to focus on the inspector. Maybe he’s disagreeing with his supervisor’s suggestion that the inspector return the next day, which the inspector thinks is too soon given all the rain.

5. The will left the house—but none of its furnishings—to the youngest child.

Didn’t those dashes set off the problem with pizzazz? The youngest child has the house, but her older siblings own all of the furnishings! Commas would have worked as well, but the sentence would have been a bit dull.

6. I have been tasked with a new assignment.

This is likely the only sentence that made you squirm. "Task" has been a noun for so long that we’re not quite sure it’s something we can do. Check back in 10 years and see whether your feelings—or those of your colleagues—have changed.

A word of warning for less curmudgeonly lawyers: When writing for a client, judge or partner who considers the old rules sacrosanct, learn them well and follow them slavishly.

The Chicago Manual of Style: The Essential Guide for Writers, Editors, and Publishers (15th ed. 2003).

A Dictionary of Modern Legal Usage (2d ed. 1995).

The New Oxford American Dictionary (2001).

The Oxford American Dictionary of Current English (1999).

Suzanne E. Rowe is an associate professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program. She is grateful to Amy Nuetzman for comments on this article.

© 2006 Suzanne E. Rowe

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