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.

Hanged versus Hung

Both of these words are the past-tense of the word “hang,” but have different uses.*  The word “hanged” is appropriate when talking about an execution, and the word “hung” is generally appropriate everywhere else.  Thus,

The laundry was hung on the line to dry, and the traitor was hanged in the town square.

*I did a little research to try to figure out why this is true.  According to Grammar Girl, who cites to The New Fowler's Modern English Usage, there were two different words for "hang" in Old English, which led to the two different past-tense forms.

Writing Matters

I recently wrote a short article on motions for summary judgment which the Georgia Bar Journal has published in its April 2013 issue.  The article can be found on the Georgia Bar Journal website.

Many of the points I offer in the article are not only applicable to motions for summary judgment, but are applicable to many other types of documents lawyers draft as well.  It’s always a good idea to “begin with the end in mind” and make sure the “little things” are correct.  As the column name suggests, writing really does matter in the practice of law.       

      

Why Don't More Writers Use Bulleted and Numbered Points?

I recently served as a brief grader for a moot court competition.  One of my fellow graders and I were discussing the briefs, and he commented that the briefs would have been easier to read had the students used bulleted or numbered points in certain sections.

I tend to agree, but I think the reason none of those briefs contained numbered or bulleted points is because students (and lawyers) don’t know its “legal” to use them.  Bulleted and numbered points can be very effective in conveying, for example, the elements of a claim or the support for a writer's position.  Law students learn that briefs should be formal and, I suppose, assume that bulleted and numbered points aren’t formal enough. 

They are wrong.  Bulleted points and numbered points are, in my opinion, both appropriate and effective ways to convey information.  Consider the readability of this passage:

In this case, the Policy is a renewal policy, not a new policy, because:

1. The same insurer, Farm Mutual, provided the prior insurance policies and the Policy;

2. The prior policies and the Policy list the same named insured, Smith Farms; 

3. The prior policies and the Policy have the same base policy number, F04 0295-E24-11;

4. The prior policies and the Policy have identical limits of coverage for bodily injury, medical payments, and UM coverage; and

5. The Policy meets the definition of a "renewal" because it is a "policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer and providing no less than the coverage contained in the superseded policy" and "continues [Farm Mutual’s] obligation to insure [Smith Farms]."

Now consider the readability of this passage:

In this case, the Policy is a renewal policy, not a new policy, because the same insurer, Farm Mutual, provided the prior insurance policies and the Policy.  Furthermore, the prior policies and the Policy list the same named insured, Smith Farms, and have the same base policy number, F04 0295-E24-11.  Additionally, the prior policies and the Policy have identical limits of coverage for bodily injury, medical payments, and UM coverage.  Finally, the Policy meets the definition of a "renewal" because it is a "policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer and providing no less than the coverage contained in the superseded policy" and "continues [Farm Mutual’s] obligation to insure [Smith Farms]."

These passages say the same thing.  However, the first passage more clearly conveys the writer’s support for her position that the policy is a renewal policy.  The good points in the writer’s second passage are lost in the midst of the paragraph.  A reader skimming these passages can ascertain the first writer’s position much more easily.  A word of warning, though: don’t overuse this technique.  Save it for a place in your brief, memo, or letter where it can have the most impact.