English Grammar and Usage, John Roberts, Reader Polls, SCOTUS, Supreme Court

Grammer Pole of the Weak: The Case of That v. Which

It’s Friday, Friday, gotta talk about grammar on Friday. Welcome back to Grammer Pole of the Weak, a column where we turn questions of English grammar and usage over to our readers for discussion and debate.

Last week, we discovered that 75% of our readers love to use substantive footnotes in their legal writing. Aww, Scalia would be so proud.

And speaking of Scalia, we’ve given him a little too much time in the limelight in this series. So, this week, we’re going to turn to an issue of grammar with some stylistic flair that was brought to our attention by another member of SCOTUS….

Back in late 2006 and early 2007, legal writing guru Bryan Garner sat down with almost all of the then-sitting Supreme Court justices and spoke about — you guessed it — legal writing. Videos of the interviews are available here, and a free transcript of the interviews is available here.

In his interview with Garner, Chief Justice John Roberts revealed that he isn’t a fan of the word “which” when used in legal writing. He much prefers use of the word “that.” The Blog of Legal Times has more:

Chief Justice John Roberts Jr. really doesn’t like reading “which” in a brief, when “that” will do. “I don’t know why,” Roberts confessed to Garner. “But when I see sentences with ‘which’ in them, it slows you down … It starts to sound like one of those old 19th-century contracts — which and wherefore. ‘That’ just seems to have a better pace to it. I actually find you can usually get rid of both of them and go with the gerund.”

And Roberts isn’t the only judge who appreciates usage of the word “that.” Judge Gerald Lebovits of the New York City Criminal Court has written on the subject of proper usage in the New York State Bar Association Journal, noting that “[k]nowing the difference between ‘that’ and ‘which’ separates the master from the apprentice. And that’s not all, folks: Using that ‘that’ correctly helps the reader understand which ‘which’ is which. Which of us could disagree with that?”

Lebovits even provides his readers with some useful tips:

Go which hunting. “That” is restrictive (or defining). “Which” is not restrictive (or nondefining).

A tip: If the word or concept before the “that” or the “which” is one of several, use “that.” If the word or concept before the “that” or the “which” expresses a totality, use “which.”

So, which is it? Should we be striking the use of the word “which” from our legal briefs, as Justice Roberts suggests, or trying to differentiate between the proper usage of “that” versus “which,” as Judge Lebovits recommends?

What do you think, readers? Let us know in our poll:

Should you eliminate the word "which" from your legal writing?

  • No - Lebovits is the man. His method, which is the best, should be used. (69%, 754 Votes)
  • Yes - Roberts all the way. His is the method that should be used. (31%, 346 Votes)

Total Voters: 1,100

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The Garner Transcripts: That v. Which, and Other Supreme Court Writing Tips [Blog of Legal Times]
That’s the Way It Is: “That” and “Which” in Legal Writing [The Legal Writer / New York State Bar Association Journal]

Earlier: Prior Grammer Poles of the Weak

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