LawProse Lessons

Whoever vs. whomever. Like who and whom, whoever and whomever can be tricky for both lawyers and nonlawyers. Here are a few guidelines that should help: If the word completing the syntax after –ever is a verb, and the –ever word is the subject of that verb, the correct choice is whoever {please send the …

LawProse Lesson #177: “Whoever” vs. “whomever.” Read More »

Who vs. whom. Edward Sapir, the philosopher of language, prophesied in 1921 that “within a couple of hundred years . . . . not even the most learned jurist will be saying ‘Whom did you see?’ By that time the whom will be . . . delightfully archaic . . . . No logical or …

LawProse Lesson #176: “Who” vs. “whom” Read More »

Just between you and ME . . . The grammatical blunder *between you and I is pervasive in writing and speech generally, and legal writers are hardly immune. Writing or saying *between you and I (or *for you and I, *to you and I, and so forth) is invariably wrong: Whenever a pronoun is the …

LawProse Lesson #175: Just between you and ME . . . Read More »

Me, Myself, and I. A pervasive uncertainty about pronoun cases has led to the rampant use of myself as a stuffy substitute for I or me. Not this: Taylor and myself attended the settlement conference. But this: Taylor and I attended the settlement conference. Not this: Please send the signed contract to Cynthia or myself. …

LawProse Lesson #174: Me, Myself, and I Read More »

On behalf of and in behalf of. On behalf of stalwart stylists everywhere, I write in behalf of maintaining the traditional distinction between these phrases. Careful writers distinguish between them. To act or speak in behalf of someone is to independently promote that person’s interest, praise, or defense—or to act on one’s own for that …

LawProse Lesson #173: “On behalf of” and “in behalf of” Read More »

What’s new in the third edition of The Winning Brief?Answer: Hot off the presses, the 775-page third edition contains nine new sections. This new material includes tips on understanding judges’ reading habits, answering opponents’ arguments, writing effective reply briefs, using authorities persuasively, and organizing arguments based on statutes and contracts. The book also contains what …

LawProse Lesson #172: What’s new in the third edition of “The Winning Brief”? Read More »

On or upon? These prepositions are usually synonymous and used in virtually identical ways. The distinctions are primarily in tone and connotation. On — the shorter, simpler, more direct word — is generally preferable {the trial court’s decision was based on the parol-evidence rule} {service on a defendant} {the case centers on a 2006 contract} …

LawProse Lesson #171: “On” or “upon”? Read More »

Why does it matter how you state a legal issue? It matters in the most fundamental way: it can determine whether you win or lose. It’s the most important aspect of a lawsuit. Bryan Garner, author of The Winning Brief, has been called the preeminent expert on issue-framing. He teaches lawyers to fashion appealing issues …

LawProse Lesson #170: Why does it matter how you state a legal issue? Read More »

How much can you learn about persuasive motion practice in one day? A whole lot — if you have the right teacher and the right approach. LawProse’s new Winning Brief seminar — with its 3d-edition 775-page coursebook published by Oxford University Press — breaks the subject of persuasive litigation writing into 100 bite-sized lessons that …

LawProse Lesson #169: Persuasive motion practice. Read More »

Structuring a textual argument. Here’s a little-known secret of advocacy: courts tend to analyze questions of interpretation systematically — in this order: (1) text, (2) structure, (3) purpose, and (4) history. The courts, especially federal courts, have explicitly endorsed the technique. In fact, they developed it from the germ of an idea expressed by Justice …

LawProse Lesson #168: Structuring a textual argument. Read More »

The evolution of beg the question. Traditionally, this phrase means “to base a conclusion on an assumption that is as much in need of proof or demonstration as the conclusion itself.” The formal Latin name for this logical fallacy is petitio principii. The tenth edition of Black’s Law Dictionary (released last month) defines it on …

LawProse Lesson #167: The evolution of “beg the question.” Read More »

Should you write supposed to or *suppose to? The correct phrase when you mean “expected to” is supposed to {That movie is supposed to be the summer blockbuster}. But writing *suppose to is an exceedingly common error {We are *suppose to [read supposed to] go to the library for the lecture}. In speech, the sound …

LawProse Lesson #166: Which do you suppose is correct: “supposed to” or “suppose to”? Read More »

Ruling, order, opinion, judgment, decree, and verdict: What are the differences? Although these terms are sometimes used interchangeably, they shouldn’t be. A ruling is the outcome of a court’s decision, whether on some particular point of law (such as the admissibility of evidence) or on the case as a whole. A ruling may lead to an …

LawProse Lesson #165: “Ruling” vs. “opinion” vs. “judgment,” etc. Read More »

Lesson #164 What’s the difference between a court’s finding and a court’s holding? Judges at any level make findings of fact and holdings or conclusions of law. Good legal writers observe the distinction and never say that a court holds on questions of fact. Ex.: Because the court finds that the jury’s finding is supported by the evidence, the court holds that …

LawProse Lesson # 164: What’s the difference between a court’s finding and a court’s holding? Read More »

Can a case “hold” something? Yes. It’s fine to write that a certain case held something {Erie held . . .}, rather than to say that the court, in that case, held such and such {The court in Erie held . . .}. This practice is an innocuous form of hypallage, which is a figure …

LawProse Lesson #163: Can a case “hold” something? Read More »