English Grammar and Usage

Before law school, I considered myself a pretty detail-oriented person, especially when it came to writing. After entering law school, I was dismayed to find myself to be unimpressively average in a group where just about everyone was anal about typos, grammar, spelling, etc. Then I spent a summer at a large law firm and was appalled to discover that in this environment, my technical abilities were best described as a meager “below average.”

A few years at large law firms set my anal retentiveness straight. I counted two spaces after a period (in the olden days when everyone seemed to agree it was the right thing to do); made sure semicolons, not commas, followed every colon; and ensured absolute consistency in underlining or bolding definitions. After a few years, I became satisfied that I had reached a black-belt level of ability to churn out a technically perfect document.

Then, I went in-house….

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In this day and age, the rejection letter is few and far between. Most law school graduates who are desperately searching for employment have only their empty inboxes to serve as their cold, harsh dose of reality. Truth be told, some even long to receive those uncommon rejection letters, if only in recognition of their continued existence on this planet as a human being with a piece of paper that’s worth six figures and then some.

But if you were to receive one of those magical, mystical rejection letters, wouldn’t it make you feel better if that letter were so riddled with typos that it would be hard to believe that it had been sent to you by a Biglaw firm?

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Federal judges don’t always tell lawyers that their writing is crap, but when they do, they’ll do it in a publicly filed court order. Because while judges have got many a tool in their benchslapping arsenal, a public shaming is perhaps the most useful of them all.

Today’s instance of public shaming comes to us courtesy of Judge Steven Merryday (M.D. Fla.), the same fellow who denied a motion to suspend trial in a death penalty case from an attorney who wanted to participate in an Ernest Hemingway look-alike contest.

Let’s jump right in and see what happened, because this judge had a field day with redlining….

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Take the words “all contributors.” Now close your eyes and contemplate what those words mean in plain English. This exercise serves two purposes, by both focusing your mind on the definition and simulating exactly how much the D.C. Circuit thinks you should know about the political process. How did they come to their decision, you might ask? By twisting, turning, and bending the words of the English language in a way that’s still illegal in nine states.

I mean, what more can you say about an opinion that calls dictionaries an “optical illusion?” Seriously…

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I used to have nightmares about the red pen, until I started drinking before bed.

As regular readers of this website will note, my grammar and spelling is not too well. As regular readers of this website will also note, this is a blog, not a legal document or a court filing. When I wrote legal documents for a living, I also had legal secretaries who would fix some of the liberties I’d take with the English language. Even without that help, no document leaves a Biglaw office until it has been looked at by a bunch of people. A typo emanating from my desk would have had to escape the notice of at least three other people before making it out of the building.

I could not have survived in the small-firm or solo practitioner environment. Without people who dot an “i,” and cross a “t,” and say, “I have no earthly idea of what you are trying to say, because your sentence has three subjects and no predicates,” I’m in a bit of trouble.

I’d probably end up looking a lot like Howard Roy Schechter — a California lawyer who seemingly sent out a cease-and-desist letter that could have been written in crayon for its childlike attention to detail….

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Tom Wallerstein

I was shocked to discover that “[a]ccording to the Lawyer Statistical Report, only 14% of attorneys are employed in large law firms of more than 100 lawyers. The large majority of attorneys (63%) and law firm employees work in small offices of ten attorneys or less.”

I have no idea if those numbers are accurate. But the reason I was shocked is because the report should have said, “ten attorneys or fewer.” “Fewer” is proper when referring to countable items other than time, money or distance. “Less” is proper when referring to things that generally are not counted.

OK, maybe “shocked” is too strong a word, but I do cringe every time I’m in the grocery store confronting the grammatically incorrect express lane of “10 items or less” instead of the proper “ten items or fewer.” Conversely, I always enjoy reading ATL’s “Grammer Pole of the Weak” column that explores some technical grammar debate. I usually have an opinion no matter how arcane the question.

I can trace my own fascination with words to the first time I read George Orwell’s novel 1984 [affiliate link]. Before it became an Apple commercial, the book was a moving exploration of the vast power of language and the relationship between words and ideas. The hero of the novel was employed to edit books and newspapers and remove words that had been banned. The political and social role of “Newspeak,” the state-imposed language, was a central theme.

My fascination with words continued in college where I studied speech. With oration, at its best, your words could glow with the gold of sunshine. At its worst, your tongue is twisted with words half spoken. But I majored in philosophy, and especially the philosophy of language. Law, with its supposed emphasis on logic, language and speech, seemed a natural fit for me.

After all, as lawyers, words are our stock and trade. What is an argument but a collection of ideas, expressed in words, intended to persuade?

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English m*****f***** do you speak it?

How much English do you have to be able to speak in order to hold elected office? I don’t know, but apparently justices in Arizona think they know it when they hear it.

Continuing Arizona’s quest to become the most racist state in the Union, the Arizona Supreme Court affirmed a ruling that prevented Alejandrina Cabrera from running for a city council seat because she doesn’t speak English proficiently.

But we can’t just “blame whitey” for this one. Here we’ve got a Southwestern case of Latino-on-Latino crime.

Well, you know what they say: when in ‘Zona, do as the xenophobes do…

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Prosecutable hate speech in 17th-century Massachusetts included calling people “dogs,” “rogues” and even “queens” (though the last referred to prostitution); magistrates took serious umbrage at being labeled “poopes” (“dolts”).

John McWhorter, the noted linguist, in his New York Times review this past weekend of Speaking American: A History of English in the United States.

(Additional fun facts about language and the law — specifically, facts about statutes criminalizing oral sex — after the jump.)

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Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of legal writing and English grammar and usage over to our readers for discussion and debate.

Last week, we learned that 59% of our readers would never use “their” in the place of “his or her” when referring to a gender-neutral singular noun. After all, using “their” might sound better, but that certainly doesn’t make it the right word choice.

And that brings us to the topic of this week’s Grammer Pole, which came to me while I was listening to Metallica yesterday afternoon. Guys in heavy metal bands know when to use “whom,” so why don’t lawyers? Because sometimes, it just sounds better when you’re wrong….

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Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of legal writing and English grammar and usage over to our readers for discussion and debate.

Last week, we found out that our readers, 81% of them, in fact, couldn’t care less about being polite (who knew?). Grammatically speaking, they don’t think that a single person can be “diverse.” You hear that, law firms? If you’re looking for minority applicants, cut the pleasantries and say so.

This week, we’ll be turning to a question that’s been debated through the ages. We’ve dealt with gender-neutral language in the past, but today we’re turning it up a notch. When using gender-neutral singular nouns, is it acceptable to use “their” as a singular pronoun later on in the sentence?

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