Oregon State Bar Bulletin MAY 2013
The Legal Writer
Taken to Task:
Touch Up Your "T" Words
By Suzanne E. Rowe
Traipsing around the “T” section of my favorite dictionary, I encountered tones of chemical terms, tantalizing food words and a curious trio of photographs. The first set of words was dull (Ta = the element tantalum, ho hum). The food words just made me hungry (tagine, taverna, tarte Tatin — tasty!). The food trio might have a legal writing angle somewhere (and I welcome you to connect Elizabeth Taylor to Shirley Temple to Mother Teresa).
But my favorite dictionary never fails to offer an afternoon filled with words that legal writers should know and appreciate — or at least enjoy. Tucked in its pages, I uncovered these little treasures.
Of course I know about tabloids, but I’d missed tabloidization. It means changing emphasis “from the factual to the sensational.” While tabloidization typically refers to television news, it should never describe your summary of the facts in a motion or brief to a court. Persuade the judge subtly with just the facts: by focusing on your client’s view of the events, by beginning with a theme, and by de-emphasizing unfavorable facts with bland words or juxtaposing them next to redeeming facts. But don’t turn your statement of facts into a titillating tabloid.
The core definition of task is still “a piece of work to be done or undertaken.” Thus, it still refers to the work, not the assignment of work to the worker. A secretary might be given several tasks to complete by the end of the day. Another use of the word is as a transitive verb meaning to “be tasked.” For example, the secretary was tasked with locating the filing office and submitting the documents by the deadline. (Sidebar: I tend to put the verb task in the same unfortunate category as the verb gift, but that’s a rant for another column.)Of course, you’d never combine the two in one sentence: The secretary was taskedwith three tasks. That’s just too much.
The phrase take to task is rather harsh, especially considering how tame task seems. Taking someone to task involves a severe reprimand or criticism. It could be for some fault or for a mistake. For example: The judge took counsel to task for not producing the witness on schedule.
Than vs. Then
Yes, we all know the difference: than provides a comparison, while then says what happened next. Quick typing and poor editing too often produce mixed up sentences, like this one: Once the attorneys realized this applicant was better then the earlier one, they agreed to make an offer than called her immediately. (Huh?)
When a comparison using than ends with a person pronoun, the correct pronoun is I, she, he, we. In formal writing, avoid using me, her, him, us. (Thankfully, the pronoun you doesn’t change from the subjective to the objective case.)
The following sentence compares intelligence: She is smarter than he.
To understand why that’s right, complete the truncated sentence with the verb: She is smarter than he is. No one would write “him is,” right? That wouldn’t sound very smart.
My favorite dictionary notes that the following abomination (my characterization) is widely accepted: She is smarter than him. Ouch! Please save that usage for conversations at happy hour; don’t use it in legal documents that clients are paying you to write.
I’ve already written rather extensively about that — when it’s required, when it can be omitted, when it could or should be replaced by who or which. (See “Which is That?” in July 2010’s OSB Bulletin; “Word Choices” in April 2007.) I was asked recently about omitting that, so here’s a quick review.
That can be omitted (1) where it is used to introduce a subordinate clause or (2) where it is the object of a relative clause. In case the grammatical terms are confusing, here are examples of each:
(1) The judge said that both attorneys had argued well.
(2) The briefs that the attorneys had submitted were excellent.
The word that could be deleted in each.
They, Them, Their, Themselves
This suite of words — they, them, their, themselves — is plural. For example, they refers to “two or more people or things previously mentioned or easily identified.” After mentioning two criminal defendants, a writer could use they to refer to the pair. The other words in the suite would fill in for other parts of speech.
The defendants had evaded capture for one month.
They holed up in a cabin in the woods.
Their only food was wild berries and Spam.
The defendants gave themselves up when they could no longer stand eating Spam.
So far, so good. But this suite of words has been used to refer to single people for about 500 years! If that news is not completely shocking, please refer back to the definition. Use your advanced analytical skills to reason that “two or more” and “one” are mutually exclusive. Scratch your head or pound the table in frustration (I did the latter), and then sigh in resignation.
To use a pronoun and avoid referring to the gender of the object of your conversation, you may use they, them, their, themselves. But please keep such atrocities out of formal documents.
There vs. Their
Here’s another pair that we distinguish easily, but often type incorrectly. There is a place (e.g., Put the book over there.) or sometimes a place filler in a sentence (e.g., There are three reasons that my client should win. The place filler could easily be removed for a tighter sentence: My client should win for three reasons.)
In contrast, their is the plural possessive pronoun. Their books are on the table over there.
Thou, Thee, Thy, Thine
I beg thee not to use these words in legal writing, but the history lesson is too fun to pass up. Long ago, in a galaxy far away, you referred to more than one entity — human or divine. These old-fashioned words — thou, thee, thy, thine — were the singular forms of you, you, your, yours.
Thou must complete thy ethics CLE or the bar will come after thee.
Thus vs. Therefore
Both thus and therefore mean “consequently.” My favorite dictionary says thus is a poetic or literary word used most often in formal writing. Sounds perfect for writing a brief! Therefore is more commonly used, so you might prefer that word when writing a letter to a client or making a presentation to a group of nonlawyers.
Till vs. Until
These two words mean the same thing, but till tends to be more casual than until. Thus, legal writers should probably prefer until in most instances. Certainly, until is preferred for beginning sentences. Here’s an example: Until the jury returns from deliberations, the press will speculate about the verdict.
For readers interested in yet another history lesson, till is the older form. It is not an abbreviation of until, as yours truly had previously assumed. Of course, that little detail doesn’t stop some of us from using the abbreviations ’till and ’til in our informal writing.
Though vs. Although
Like the pair till and until, the pair though and although mean the same thing almost all the time, but though is less formal than although. And as with the earlier pair, the longer and more formal form — although— works best at the beginning of a sentence.
But though can be used as an adverb, as in this example: The student appreciated the interview, though. You couldn’t use although in that sentence.
Tortuous vs. Torturous
Just one little letter — sadly for this month’s column, an “r” not a “t” — results in words of different meaning. Tortuous means “full of twists and turns.” If you are hiking near Bend, you might follow a tortuous path to get to a waterfall. Torturous is derived from “torture” and “should be reserved for agonized suffering.” Living in a refugee camp portrays the true meaning of torturous. Your weekly staff meeting might seem torturous, but find another adjective.
Try to vs. Try and
Although these two are very close in meaning, try to is more formal. Moreover, try and can cause headaches when used beyond the infinitive (e.g., She is going to try and help.) or the imperative (e.g., Try and catch up!)
Toodle-oo! Perhaps my favorite T word is toodle-oo to mean goodbye. It might come from the French, à tout à l’heure, meaning “see you soon.” Or it might just be fun to say.
Source: The New Oxford American Dictionary (2001).
ABOUT THE AUTHOR
Suzanne E. Rowe is the James L. and Ilene R. Hershner Professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program.
An archive of The Legal Writer articles is available here.
© 2013 Suzanne E. Rowe