In the (Subjunctive) Mood

Lawyers frequently use the subjunctive mood and frequently use the wrong verb form when doing so.  The subjunctive mood is used when discussing a situation that one wishes were true (or hopes will become true), but is not then true.  For those confused, think Fiddler on the Roof (“If I were a rich man…”)

Generally, the subjunctive verb tense is the same as the present tense except for the verb “to be,” which becomes “be” in the subjunctive present tense and “were” in the subjunctive past tense.  For example:

Every new employee is trained to use the firm’s software. (Present tense not subjunctive)

The office manager requires every new employee be trained to use the firm’s software. (Present tense subjunctive)

I was an associate at that firm for 10 years. (Past tense not subjunctive) 

If I were still an associate at that firm, I’d take advantage of the 401(k) match. (Past tense subjunctive)

Do Lawyers Become Worse Writers?

Bryan Garner has written an interesting piece for the Student Lawyer on law student writing.  I, like Garner, have encountered students who believe their writing has gotten worse since college.  According to Garner, while students' writing may have gotten somewhat worse, most students never actually possessed good writing skills in the first place.  This, says Garner, is because students have over-valued their writing abilities and, as a result, have failed to develop the skills they need to be accomplished persuasive writers (which is, after all, what much of legal writing is all about).

Garner's full article can be found here.

Double (D) Entendre

Judge Biery out of the Western District of Texas issued an opinion earlier this week in an interesting case in which several strip clubs are challenging a San Antonio ordinance requiring dancers to wear bikini tops (rather than pasties). 

This opinion, which denies the clubs’ request for a preliminary injunction, is full of double entendre.  You should read the entire opinion yourself, but I’ve listed some of my favorite sentences below:

-“An ordinance dealing with semi-nude dancers has once again fallen on the Court’s lap.”

-“Plaintiffs clothe themselves in the First Amendment seeking to provide cover against another alleged naked grab of unconstitutional power."

-“Indeed, this case exposes the underbelly of America’s Romanesque passion for entertainment, sex and money, sought to be covered with constitutional prophylaxis.”

-“Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.”

The case is 35 Bar and Grille, LLC v. City of San Antonio, No. 5:12-cv-00034, pending in the Western District of Texas.

*NOTE: The opinion is not on Westlaw as of the time of this posting.  I'm sure it will be up soon.

Southeast Regional Legal Writing Conference

I attended the Southeast Regional Legal Writing Conference this past weekend and participated in some very interesting sessions on developing legal writing curriculum, selecting legal writing textbooks, and teaching legal writing, including a great March Madness-style game for teaching The Bluebook.  I came away with some interesting ideas I plan to implement with my students.  I want to give a big thanks to all the presenters who shared their ideas and materials.