Oregon State Bar Bulletin — NOVEMBER 2007
The Legal Writer
Devilish Details
Legal Writing is Precise Writing
By Suzanne E. Rowe

A colleague appeared in my office with a pressing question about hyphens. He was writing an article about people who own small businesses. But he was concerned that a punctuation mistake might make the article about small people, instead of small businesses. That concern (and perhaps a touch of procrastination) propelled him to my office. Was he writing about small business owners or small-business owners?

Legal writing is precise writing. Sometimes the missing hyphen, misplaced word or extra comma can change the meaning of a sentence. In quotations, lack of precision can hurt your reputation (or just make you look sloppy). The devil’s in the details.

The general rule is to use a hyphen to join words that together make a single adjective. Familiar examples are middle-class neighborhoods and one-way streets.

Of course, those aren’t the ones that drive us crazy. My colleague’s example does. The key is clarity. If a hyphen would avoid ambiguity, put it in. Since small business owners could be either a) small people who own businesses or b) people who own small businesses, he was correct to consider a hyphen. The hyphenated term is clear: small-business owners can be tall, but their businesses must be small.

The good news is that dictionaries and grammar books vary in their rules on some hyphens, allowing even curmudgeons a bit of breathing room. And common usage allows you to continue writing about "small business owners."

Words that are on their way to becoming one sometimes use a hyphen to help us make that transition. Remember that we traveled from "on line" to "on-line" to "online"?

Sometimes placement determines whether a hyphen is needed. In discussing age, for example, the term "eight-year-old child" needs hyphens, but the clause "the child was eight years old" does not. Even if the noun child is only implied in the first example, the hyphens are needed. "The eight-year-old was a model student."

Misplaced Modifiers
Modifiers should be placed as closely as possible to the words they modify. The more space that intervenes, the more opportunities for ambiguity. Note the variations in the following sentences that occur from moving around the word "only."

Example 1: Only lawyers can eat in the firm’s cafeteria. (Support staff, friends and family are not invited.)

Example 2: Lawyers can only eat in the firm’s cafeteria. (They can’t work there.)

Example 3: Lawyers can eat only in the firm’s cafeteria. (They can’t eat at their desks.)

Each of these sentences is grammatically correct. The writer’s intent determines which is appropriate in a given situation.

As another example, consider the following sentence: "The partners discussed the legal problems in building the bridge with 10 associates."

Are the associates building the bridge? Are the partners going to make the associates hold hands and ankles to build a bridge of themselves? Or are the partners discussing with the associates the legal problems in building the bridge?

Here’s a clearer version: "The partners discussed with 10 associates the legal problems in building the bridge."

Unrestrictive Commas
One function of commas is setting off interesting but unnecessary parts of sentences. These commas show the reader which information can be skipped over because it adds flavor but not critical substance. Thus, a tiny comma can change the meaning of a sentence. Consider the two examples below:

Example 1: The judge is reading the briefs that are well written.

Example 2: The judge is reading the briefs, which are well written.

In the first sentence, the judge is reading only some of the briefs. The judge is reading the good briefs; the law clerk is skimming over the rest. In the second sentence, the judge is reading all the briefs. It’s interesting that all the briefs are well written, but that information doesn’t limit the substance of the sentence. If the missing comma means your brief is not being read, the shift in meaning matters.

(Yes, some of us curmudgeons remember the difference between "that" and "which," but most writers today consider them interchangeable. Thus, our little commas are even more important!)

A more personal example makes the point with greater impact. Consider the next two sentences:

Example 1: My girlfriend who lives in Bend is visiting this weekend.

Example 2: My girlfriend, who lives in Bend, is visiting this weekend.

In the first sentence, the words who lives in Bend tell us vital information about the girlfriend, likely to distinguish her from the girlfriend who lives in Ashland. If both girlfriends show up the same weekend, the writer could be in trouble.

In the second sentence, life is simpler. The writer has one girlfriend, and she happens to live in Bend. The words who lives in Bend are set apart from the substance of the sentence with commas, so we know that information just adds flavor. Maybe she’ll invite us for a ski weekend?

Quotation Marks
Quotation marks are like mini- affidavits. They assure your readers that the words between the marks are exactly the same as in the original. Think photocopy. Think cut and paste.

If you change one word, add one letter, or remove one comma within quotation marks, you have to tell the readers, or your affidavit is no good. Quote out of context or omit a little word like not, and your reputation can be ruined. Citation guides like the Bluebook and the ALWD Citation Manual provide endless details on how to show changes, additions or omissions from quotations.

But there are more devilish details. If you cut and paste from an online database a quote that contains either apostrophes or quotation marks, the version that appears in your document is likely to contain "straight" apostrophes and quotation marks, not the "smart" curved ones we are more accustomed to. Just delete them and retype them (or use your word processor’s "replace" function), and the auto-correct in your computer will turn straight to smart.

Another detail: In America, commas and periods always go inside the final quotation mark. They’re too delicate to be left out alone in the American wilderness. Note that British periods and commas must be tougher; they get pushed outside all the time. When you move to England you can be mean to periods and commas, too.

Other punctuation — a question mark, a semi-colon, etc. — goes outside the quotation mark unless it’s part of the quoted text. Note the following examples:

Example 1: The federal statute fails to define the term "appropriate medical screening." (The period is inside the quotation mark.)

Example 2: The law clerk searched the statute for hours for a definition of "appropriate medical screening"; eventually, he admitted that no statutory definition existed. (The semi-colon is outside the quotation mark.)

Example 3: How could Congress avoid defining the key term "appropriate medical screening"? (The question mark is outside the quotation mark.)

Example 4: Although the statute fails to define the term "appropriate medical screening," the circuits have provided insight. (The comma is inside the quotation mark.)

And one more detail: Not every quote needs to be preceded by a comma, a style often used in dialogue. Make the quote flow grammatically within your sentence, without introducing extraneous commas. The following examples demonstrate the difference.

Example 1: The witness testified, "I saw the whole thing."

Example 2: The witness testified that she "saw the whole thing."

The first example has a comma to separate the dialogue from the lead-in. The second example would be grammatically incorrect with a comma stuck after the word she because the comma would separate the subject and verb.

This last example combines the rules on commas and final punctuation: The attorney asked the defendant, "How many drinks did you serve this man?" The comma is needed to introduce dialogue. The question mark is part of the quote, so it is inside the quotation mark.

Don’t skim over details of your writing, some of which can make a substantive difference. The devil’s in the details, but our profession is, too.

The Chicago Manual of Style (15th ed. 2003).

University of Purdue Online Writing Lab (http://owl.english.purdue.edu).

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 of Oregon’s Academic Learning Services for comments on this article.

© 2007 Suzanne E. Rowe

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