Answers

For those who eagerly* have been awaiting the answers to my June 1, 2012 post, see below:

No one should trust companies that break laws.

Some people believe jails, which are often overcrowded, breed criminals.

Appeals that are granted before final disposition are interlocutory.

Firms that offer bonuses are desirable places to work.

United States District Courts, which cannot hear all cases, are courts of limited jurisdiction.

Trials that involve numerous parties take longer than two-party trials.

*More on this later.  Eager and anxious frequently are misued.

Worse Crimes Indeed

Ray Bradbury died this morning at his home in Los Angeles at the ripe old age of 91.  In reading various articles today about his life, I was struck by the fact that he always is described as a writer of science fiction, a classification I find highly inaccurate--Bradbury's works offer so much more than science fiction fantasy.   

 

Bradbury constantly encouraged us always to search for knowledge and never to allow ourselves to become comfortable in the belief that our own narrow understanding of the world offers anything close to the complete picture. Bradbury’s message was, I think, less about state censorship and more about the ways in which we voluntarily—even willingly—censor ourselves. His works are a reminder to never stop learning.

“There are worse crimes than burning books. One of them is not reading them.”

-Ray Bradbury

That Which Doesn't Kill Us...

Many writers—even good writers—do not understand the difference between “that” and which.”  While generalizations are often dangerous, they are helpful in understanding when it is appropriate to use “that” rather than “which.”

Generally, “that” should be used before essential clauses and “which” should be used before nonessential clauses. 

Essential clauses, sometimes called restrictive clauses, are necessary in that the meaning of the sentence is dependent on the presence of the clause.  If the meaning of a sentence would change if the clause were removed, the clause is essential.   Conversely, nonessential clauses can be removed from a sentence without changing the meaning of the sentence.  Nonessential clauses generally provide additional, descriptive information. 

Essential clauses generally are not surrounded by commas. 

Nonessential clauses generally are surrounded by commas.

For example:

Laws that are facially discriminatory are subject to strict scrutiny. 

“That are facially discriminatory” is an essential clause.  The sentence would not be true if the clause were removed because all laws are not subject to strict scrutiny.  Thus, “that” is the appropriate word.

Trials, which are costly, are rarer today than in years past.

“Which are costly” is a non-essential clause.  While the clause does help explain to the reader why cases are tried less frequently today than in the past, the clause is not essential.  If the clause were removed, the sentence would still make sense and be accurate.  

Insurers should avoid writing policies that are ambiguous.

Again, the clause “that are ambiguous” is essential.  Insurers should not avoid writing all policies, only those that are ambiguous.

The exterior of the Smith County courthouse, which was built in 1910, is beautiful.

“Which was built in 1910” is a non-essential clause.  The sentence is accurate when the clause is removed.  “Which,” therefore, is appropriate. 

This rule is not fool-proof, but it will provide you with the right answer the majority of the time.

I’m going to leave out all punctuation from the sentences below to avoid giving away the answers.  See if you can figure out whether “that” or “which” is appropriate.  I’ll post the correct answers next time.

No one should trust companies that/which break laws.

Some people believe jails that/which are often overcrowded breed criminals.

Appeals that/which are granted before final disposition are interlocutory.

Firms that/which offer bonuses are desirable places to work.      

United States District Courts that/which cannot hear all cases are courts of limited jurisdiction.

Trials that/which involve numerous parties take longer than two-party trials.

        

Ease Up on the Legalese

The recent Mother’s Day holiday reminded me of the role that some very strong women have played in my life.  Without them, I most certainly would never have become the woman I am today.  For many of us in the younger generation of lawyers, our mothers held down full-time jobs while also serving as the house cleaners, checkbook balancers, carpool drivers, and homework helpers.  Our fathers, on the other hand, had the enviable task of simply working for a living.*

When I was in law school, I took a Poverty Law seminar in which I wrote a paper about payday lending and the various ways in which the states have attempted to regulate these usurious schemes.  I distinctly recall a conversation with my mother, who has both a bachelor’s and master’s degree, in which she said,

“I’d love to read your paper if you think I’m smart enough to understand it.” 

Her comment underscores one of the very problems with the legal system today—its inaccessibility, or perceived inaccessibility, to non-lawyers. 

With respect to legal writing, the recent trend has been a movement away from legalese to plain language.   I do not know whether this trend is attributable to Generation X and Generation Y, the overall societal movement away from formality in writing (for example, the use of texting and Twitter to communicate), the transition to email as the primary means of communication, or some other trend.  Regardless of the reason, I think the movement toward plain language is positive in that it de-mystifies the law, even if just a little, for non-lawyers and does away with legalese that is sometimes difficult for even lawyers to understand.

Some of my "favorite" legalese and the plain language alternatives

Legalese                                      Plain Language

Inasmuch as                                Since/Because

With respect to                            About

Null and void                               Null/Void

Sufficient number of                    Enough

During such time as                     While

Notwithstanding the fact that        Although/Despite

*For those of you who think women and men are anywhere close to "equal," Google the name "Kathleen M. Sullivan."  She is believed to be the first female name partner at an AmLaw 100 firm.  Guess when she was made a name partner?  I'll give you a hint--it wasn't during the 20th century.  Think MMX.

Precision

I give a presentation each semester on legal writing to undergraduates taking a business writing course.  One of the things I emphasize is the need for precision in legal writing--say what you mean and mean what you say.  In addition to all the grammatical issues I see as a practitioner (comma splices, lack of subject-verb agreement, and mixed tenses, to name a few), one of the things that strikes me is the lack of precision in what is written by attorneys, judges, and, sometimes, even appellate justices. 

I suppose the need for precision is more clear to me than many other practitioners because I am a coverage attorney.  Much of my practice is devoted to analyzing and interpreting language in insurance policies, where a comma can mean the difference between no coverage and $1,000,000 in coverage.    

I recently was involved in a (non-coverage) case that highlights the need for precision by all practitioners.  This case probably would have settled long before trial had the attorney been precise in drafting written discovery.

In the case, the plaintiff, an attorney herself, claimed she sustained personal injuries in an automobile accident.  The plaintiff's counsel drafted written discovery requests and asked the defendant to provide the substance of any conversation she had with the plaintiff "regarding the cause of the accident."  The defendant responded that she had no conversations with the plaintiff regarding the cause of the accident, and the case proceeded.

On the eve of trial, the plaintiff's counsel learned that, according to the defendant, as the plaintiff stepped out of her car at the scene of the accident, the plaintiff angrily shook her fist at the defendant and told her: "I'll sue you and take you for everything you have."  The plaintiff's counsel sought to exclude any testimony regarding the alleged statements by his client on the ground that the defendant did not disclose the statement in response to written discovery requests.

The judge denied the plaintiff's request, finding that the plaintiff's interrogatories to the defendant did not encompass the plaintiff's alleged statement about suing the defendant.  The judge rightfully concluded the plaintiff's interrogatory sought only conversations about the "cause" of the accident.  Because the plaintiff's alleged statement did not pertain to the "cause" of the accident, it was not responsive to the plaintiff's request and, therefore, the defendant did not act inappropriately in failing to disclose the statement. 

As a result of the judge's ruling, the plaintiff, who was not a particularly sympathetic individual, settled with the defendant.  Had the plaintiff's counsel drafted a more precise request and sought, for example, all conversations "pertaining to the accident" or all conversations "at the scene of the accident," he would have learned of his client's alleged statement much sooner and probably would have attempted to settle the case much earlier.     

This is my first post on my first foray into the world of blogging.  I look forward to posting on this blog and sharing my thoughts on legal writing, the practice of law, current events, and other interesting law-related stories and anecdotes.