Above the Law

Although in any number of constructions it is perfectly permissible — and even preferred — to omit that, the word is quite useful and even necessary. We need it as a restrictive relative pronoun {the book that he read last month}; as a demonstrative adjective {that idea is sound}; and as a conjunction {he said that all the documents were sealed by the court}. In formal writing that is often ill-advisedly omitted, creating a miscue or an ambiguity, even if only momentarily. In particular, the conjunction that should usually be retained to introduce clauses following verbs such as acknowledge, ask, believe, claim, doubt, hold, indicate, say, and suggest. Consider what notable grammarians have said about unnecessarily omitting that:

    • “[T]he use or omission of the that of a substantival clause depends partly on whether the tone is elevated or colloquial.” H.W. Fowler, A Dictionary of Modern English Usage 623 (Ernest Gowers ed., 2d ed. 1965).
    • “[I]n the vast majority of instances the inclusion or exclusion of that is optional and a matter of idiom — in short, how it sounds to one speaking English as a native tongue. . . . [T]he inclusion of the word seems to be definitely indicated [when] a time element intervenes between the verb and the clause.” Theodore M. Bernstein, The Careful Writer: A Modern Guide to English Usage 442 (1965).
    • “[V]erbs with which the omission is easiest are those of saying, denying, thinking, feeling, hoping, fearing, etc.; but not all those of cognate meaning will do without that. Verbs of answering, retorting, rejoining, complaining, and others known only by one’s idiomatic sense will rarely tolerate the omission. . . . It is obvious, too, that when the omission of that gives a false lead, it must be restored.” Wilson Follett, Modern American Usage: A Guide 320-21 (1966).
    • “The omission of the conjunctive that sometimes causes a momentary confusion.” Eric Partridge, Usage and Abusage 340 (1982).
    • “A misguided principle of the editing-by-rote school is to delete the word that whenever possible. It’s often possible, but that doesn’t mean it’s desirable. Tin-eared editors chanting the mantra ‘Omit needless words’ produce staccato ridiculousness that, in addition to sounding awful, can cause readers to stumble.” Bill Walsh, Lapsing into a Comma 212-13 (2000).

Bernstein points out the issue with intervening time elements. For example: She said today she was filing the brief. Did she say it today or did she file it today? Correct placement of that would clarify: She said that today she was filing the brief (she’s filing it today). She said today that she was filing the brief (she said it today).

One other technique to consider: if a verb follows that, you can often change the verb to an -ing word: decision that reversed a judgment becomes decision reversing a judgment. This type of edit will prevent such awkward constructions as the regulation that provides that….

Garner’s Dictionary of Legal Usage 887 (3d ed. 2011).
Garner’s Modern American Usage 808 (3d ed. 2009).
Garner, The Winning Brief 258-60 (2d ed. 2004).
The Chicago Manual of Style § 6.22, at 314, (16th ed. 2010).

Thanks to Michael D. Ryan for suggesting this topic.

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.