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LawProse Lesson #158: Whether whether causes problems for legal writers.

Yes, it does—in four ways:

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lawproseYes, it does—in four ways: (1) in issue statements, (2) in the common misusage of if for whether, (3) in needless instances of whether or not, and (4) in the proper phrasing of an appositive (question whether vs. question of whether vs. question as to whether).

Issue statements

Law students have traditionally learned to start the questions presented in a brief with the word whether, thereby stating what should be a direct question as an indirect question in the form of a sentence fragment. But that’s the least of the problems. The whether-question is invariably either highly abstract and therefore incomprehensible or else factually convoluted and therefore incomprehensible.

One cornerstone of LawProse teaching over the years has been to combat the ills of badly phrased issue statements, beginning with the banishment of whether. The preferable format is the syllogistic deep issue (statement-statement-question), which you can read about in great detail in The Winning Brief (watch next month for the greatly expanded third edition), Garner on Language and Writing (pp. 120-48), or The Elements of Legal Style (pp. 183-87).

Whether vs. if

Stylists distinguish between these terms. Whether introduces an alternative or possibility {economic conditions will determine whether we have to move}. If states a condition {we’ll need some incentive pay if we have to move}. Avoid misusing if for whether in stating alternatives or possibilities.

Whether vs. whether or not

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Whether does not usually need or not because that sense is included in the word {the issue is whether the offer was accepted on time}. Include the or not only when the phrase means “regardless of whether” {the court will hear the motion on Tuesday whether or not the defendant is present}.

Some people are so addicted to or not that they use it unnecessarily and then actually repeat it {we need to decide whether or not we are going to meet or not [drop both or not phrases]}.

Question whether

Over the years, reputable usage authorities have recommended the phrasing question whether {this point raises the question whether equitable estoppel is really any different from promissory estoppel}. The phrase represents what grammarians call an appositive (a noun or noun phrase set beside another noun or noun phrase in a synonymous or identifying way). Hence it’s considered mildly sloppy to write question of whether and downright rubbishy to write question as to whether.

All of which answers the question whether whether has any rightful place in legal writing: it does—just not in issue statements.

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Further reading:
Garner’s Dictionary of Legal Usage 420, 941-42 (3d ed. 2011).
Garner’s Modern American Usage 436, 857-58 (3d ed. 2009).
The Redbook: A Manual on Legal Style § 12.3, at 317 (3d ed. 2013).
The Chicago Manual of Style § 5.220, at 284, 299 (16th ed. 2010).
The Elements of Legal Style 183-87 (2d ed. 2002).
Garner on Language and Writing 120-48 (2009).

Thanks to Noah Klug for suggesting this topic.

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