Above the Law

UPDATE: The quotation from United States v. Boardwalk Motor Sports, Ltd. should have been attributed to the dissent. Our apologies to Judge Jerry E. Smith, the author of the majority opinion, for this error.

In a 1988 review of my Dictionary of Modern Legal Usage — or, as it’s now called in its third edition, Garner’s Dictionary of Legal Usage — a generally effusive reviewer criticized me for including an entry on the possessive its as opposed to the contraction it’s. The comment seemed unfair at the time, although I concede that one might wish for a legal profession in which reminders on such elementary points would truly be unnecessary.

Earlier this year, however, a lawbook appeared in which the contraction is misused for the possessive right on the front cover. As the author of more than 20 books, I can tell you that one must be careful about leveling any blame for this, since the blunder may well have been a printer’s error that the author never even saw before the book was produced. I have seen such things happen. But it’s also true that the error does crop up in legal writing as elsewhere — even in federal judicial opinions. For example:

It’s for its:

    • “After argument, the bankruptcy court announced it’s [read its] decision.” In re Thomas Consol. Indus., Inc., 456 F.3d 719, 723 (7th Cir. 2006).
    • “Our conclusion that there is nothing unreasonable about the Union’s interpretation of it’s [read its] constitution and by-laws.” Hughes v. Bricklayers & Allied Craftworkers Local No. 45, 386 F.3d 101, 107 (2d Cir. 2004).
    • “On appeal, Garley claims error in: (1) the district court’s failure to grant his motion to remand the case to state court; and (2) it’s [read its] decision to grant Sandia’s motion to dismiss.” Garley v. Sandia Corp., 236 F.3d 1200, 1203 (10th Cir. 2001).

Its for it’s:

    • “Its [read it’s] not clear what the limit would be if we depart from the rule that the levy must be served while the bank is truly in possession of the funds.” United States v. Boardwalk Motor Sports, Ltd., 692 F.3d 378, 390 (5th Cir. 2012) (Clement, J., dissenting).
    • “In this case, while its [read it’s] not entirely clear how it calculated the award of damages, the jury clearly found Winters liable on both Counts I and II.” United States ex rel. A+ Homecare v. Medshares Mgmt., 400 F.3d 428, 458 (6th Cir. 2005).
    • “Our panel majority opines that it could be limited to people sharing a dwelling — but its [read it’s] possible that these individuals must also be related by blood, marriage, or adoption.” Continental Ins. Co. v. Roberts, 410 F.3d 1331, 1336 (11th Cir. 2005) (Hill, J., dissenting).

Again, scriveners’ errors may be to blame for some of these slip-ups. But probably not all.

The thing to remember is that its is an “absolute possessive” like ours {it’s ours}, yours {no, it’s yours}, and his {it’s his car}. Its is the possessive form of it {each court has its local rules}. The apostrophe in it’s always signals the contraction of it is {it’s a poorly written opinion}. So when you see the apostrophe, think “it is” to decide whether it’s written in its correct form.

On Twitter, people have devised bots to correct elementary blunders such as your for you’re (and vice versa), usually with a hectoring tone. I believe someone has also devised one for it’s vs. its, such as “it’s its, idiot!” Although the nasty tone does not reflect how best to correct someone, Hector would be proud.

Sources:
Garner’s Dictionary of Legal Usage 488 (3d ed. 2011).
The Redbook: A Manual on Legal Style § 12.3, at 251 (2d ed. 2006) (3d ed. forthcoming).

Bryan A. Garner, President of LawProse Inc., is the most prolific CLE presenter in the U.S., having trained more than 150,000 lawyers and judges. His book — most prominently Black’s Law Dictionary and Garner’s Modern American Usage — have been cited as authority by every state and federal appellate court, including the highest. For more about him, go to www.lawprose.org. To follow him on Twitter: @bryanagarner.

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