Hyphenate phrasal adjectives

This needs a hyphen:

excessive fee litigation

Does this mean that fee litigation is excessive? Or does it mean that the litigation is about excessive fees? As written, it means the first, but the writer intended it to mean the second. Here's how it should have been punctuated:

excessive-fee litigation

Lawyers don't hyphenate their phrasal adjectives enough.

For more guidance, see Garner, A Dictionary of Modern Legal Usage at page 657.

Hat tip to the (new) legal writer.

My mom was an English teacher

"My mom [or dad] was an English teacher, so . . ."

If you are a lawyer, especially a lawyer who is serious about legal writing, and especially a lawyer who teaches legal writing, this is a cool thing to be able to say. You don't even need to complete the thought. Listeners will assume that because your mother was an English teacher, she insisted that you speak correctly, that you use language precisely, and that you take writing seriously.

In reality, your English-teacher mother may have insisted on those things, and she may not have. And even if she insisted on them,you may not have learned them. So having an English-teacher mother really means . . . nothing?

But MY mother WAS and English teacher, and she did insist that I speak correctly. She inculcated into our family the attitude that words and language matter. As a result, we used to joke around the dinner table about word-usage mistakes other people made. (Kind of snotty, I know.) And she has three children with degrees in English, three with degrees in a foreign language, and one who makes a living teaching writing.

Here's the thing, though. My mom quit college when I was born, and she went back to college when I was 17. She finished her English degree after I left for college, and she finished her master's degree in English after I was permanently out of the house. She began teaching freshman English at a university only after that.

So although I still like to say that my mom was an English teacher, I feel a bit disingenuous about it.

"I'm a real nitpicker"

The senior partner asked me to have the agreed order retyped, verbatim, in our firm's preferred format. Opposing counsel had sent over an agreed order, and we were fine with its wording. But the senior partner wanted it to look like our document. "Have it retyped and then take it over to opposing counsel for his signature," he told me.

I walked into the opposing counsel's office and handed him the retyped order, assuring him that we had made no changes to the wording--except that we had added an apostrophe in one place where it was needed.

"I missed an apostrophe?" he asked. "Are you sure? That's surprising because I'm a real nitpicker," he said.

I handed him the original, and he verified that he had, indeed, missed an apostrophe.

I tell this story with due humility because I'm not a real nitpicker. I make mistakes, and I tolerate my own and others' mistakes--to a point.

No typos? Ever?

A former student sent me this comment, carried in a major newspaper, from a senior partner at a law firm:

Do not ever for the second time give your senior a piece of writing with a typo or a grammatical mistake. I will take it once and I will tell the junior my set speech. But if it happens again? Well, find out for yourself.

I have three problems with this statement.

1. The speaker is talking about litigation writing. (If you visit the firm's website and look this person up, you'll see he's a litigator.) My former student rightly points out that this kind of expectation is unrealistic for some transactional drafting:

I'm not a bad writer, but far from perfect. On occasion I miss small errors in my work. I might draft a 160-page credit agreement, based on a form that itself had many errors. Some of those errors are minor, such as a stray parenthetical, misplaced comma, etc. Others are more serious and could lead to ambiguity. Of course, I try to catch everything, but I don't think I've turned in a perfect draft once yet. Nor have I seen a perfectly drafted document yet from other attorneys unless the document is very short.

Perfect work is rare, but perfect work in the context of a 160-page credit agreement is likely impossible on the first draft. Of course, the speaker is thinking of a motion or a brief or a memo. These are rarely more than 50 pages and are often much shorter. So the speaker should have qualified his remarks for the context in which he works.

2. I think the speaker's statement is hyperbole, intended to scare young associates. Of course, you must proofread your work carefully, very carefully. You should try to turn in perfect work every time. But you must acknowledge that it is not possible to turn in perfect work every time. For example, I wrote a 230-page book, which I proofread myself and asked two others to proofread. I later found 6 typos in it. I was chagrined and dismayed and embarrassed. But that's life. Perfect work is rare. In truth, it's unusual for me to read a book--and I read almost exclusively books about writing--and not find at least one mistake. So the speaker should be more realistic. Besides, he's not perfect either . . .

3. I daresay the speaker makes mistakes, too. This is often what those who claim to expect perfect work forget or seem blind to. I visited the speaker's profile on his firm's website, and I found two mistakes. Granted, they were fine points of punctuation (and I'm not talking about the final serial comma, which the speaker does not use, by the way). But they were mistakes according to the Texas Law Review Manual on Usage and Style, The Redbook, The Chicago Manual of Style, and the AP Style Manual.

So there.

Is the up-front conclusion always best?

At a recent seminar, I was preaching, as usual, about beginning legal documents with some kind of up-front conclusion. I mentioned legal advice and legal opinions in particular. Don't start with background, I said, and then build up to the conclusion--the answer. State the question and conclusion first, then give the background and reasons.

An experienced lawyer asked if there was an exception to this for formally issued, government legal opinions.

For example, suppose an administrative agency raises a legal question and submits it to its legal staff. Or suppose an ordinary citizen seeks an opinion from a government agency and the legal staff prepares a written response. I would advise the opinion writer to begin by stating the question and the answer up front.

The questioner had been advised not to put the answer up front but to save it for the end. She was told that if the answer was stated at the beginning, the document did not seem objective. With the answer up front, it seemed that the writer had not really considered the question carefully and objectively, but had come to a quick, even predetermined, decision. For that reason, she had been told not to begin opinions with the answer, but to save it for the end, so that the opinion seem to fully treat the issue before coming to a conclusion.

I disagreed. What do you think?

Ten legal words and phrases we can do without

Ten legal words and phrases we can do without
Austin Lawyer, May 2008

Part of becoming a lawyer is mastering legal vocabulary, be it archaic, fancy, or Latin. It's an important part of what law students and novice legal writers have to learn. But part of becoming an expert legal writer is shedding the archaic, the fancy, and the Latin. Too often, those legal words do nothing but make the text sound like a lawyer wrote it. Always, there are effective alternatives.

I'm trying to drag legal vocabulary into 2008. Goodness knows we don't need words from 1908, let alone 1708. So here are a few legal words we can leave behind.

aforementioned
Why use this outdated word when its shorter cousin, aforesaid is available? I'm kidding. Eliminate them both and specify the place you are referring to.

comes now
A lawyer once asked me to settle a debate at the office: “If there is one plaintiff, it's 'COMES NOW Rodney Jackson, . . .' But if there are two plaintiffs, shouldn't it be 'COME NOW Rodney and Melinda Jackson, . . .'?” Of course, I told him that the correct answer was to stop beginning pleadings with this archaic phrase. And drop the ALL-CAPS.

hereinabove
Almost all the here- words should go, but this is the most annoying. It's old and vague. As with almost all legal writing, the better approach is to specify what you are referring to and where it can be found.

inter alia
Latin words that aren't terms of art, as this one isn't, ought to be eliminated: vel non, sub judice, sua sponte, and others. But this one I particularly dislike. Let's use the everyday-English equivalent: among others or among other things.

instant case
This case, our case, the Jackson case, and the current case are all better.

said
As an adjective to designate a noun that has been mentioned before, this word is no more precise than this, that, these, those, and the. All it really does is make the text smell legal.

subsequent to
Its cousin, prior to, is only slightly less pretentious. Expert writers who want clean, vigorous prose prefer before and after.

witnesseth
This word has no place in modern legal drafting. If you prepare transactional documents, and you're afraid to take it out, be brave. And look it up: you don't have to take my word for it. One expert calls it an “antiquarian relic.” Black's Law Dictionary 1634 (Bryan A. Garner, ed., 8th ed., 2004)

-trix suffix words like administratrix, executrix, prosecutrix, testatrix
In 1992, a legal-vocabulary expert said these forms were “dying.” David Mellinkoff, Mellinkoff's Dictionary of American Legal Usage 600 (1992). We can no longer wait around. Kill them off now. They're sexist, archaic, and hard to pronounce.

For further guidance on outdated and useless legal words, see

Adam Freedman, The Party of the First Part: The Curious World of Legalese (2007).
Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995).
David Mellinkoff, Mellinkoff's Dictionary of American Legal Usage (1992).