LawProse Lesson #220: Is the verb “cite” transitive or intransitive?

Is the verb “cite” transitive or intransitive? For most of its history, the verb cite (dating from the 15th century) has been a transitive verb; that is, it takes a direct object. For example, a lawyer cites a case or a police officer cites a driver for a traffic violation.       I could cite …

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LawProse Lesson #219: Are “certworthy” and “enbancworthy” bona fide words?

Are “certworthy” and “enbancworthy” bona fide words? Yes. According to the 10th edition of Black’s Law Dictionary, certworthy dates from 1965 and means “(of a case or issue) deserving of review by writ of certiorari.” It was first recorded in the 7th edition of Black’s in 1999.       Enbancworthy is recorded from 1968 and is defined as …

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LawProse Lesson #218: How much argle-bargle is required for jiggery-pokery?

How much argle-bargle is required for jiggery-pokery? In the last few Supreme Court terms, Justice Antonin Scalia has used some memorable British colloquialisms—especially argle-bargle and jiggery-pokery. Argle-bargle is a chiefly British phrase that has taken on the meaning “copious but meaningless talk or writing; nonsense.” It originated in the early 19th century from the Scottish term argle—a …

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LawProse Lesson #217: When do you capitalize “federal” and state”?

When do you capitalize federal and state? What about congressional and constitutional?      These words have been worked hard over the past week. Maybe they’ve earned capitals on that basis alone. But let’s see what the best typographic practice calls for—keeping in mind that professional editors today overwhelmingly prefer “down-style,” in which capitalization is sparingly used. …

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LawProse Lesson #216: Embracing constructive criticism.

Embrace constructive criticism.      Undeveloped writers feel instinctively that if someone else criticizes their writing, it’s a personal affront. But more experienced writers know that if you insulate yourself from criticism, you’ll find it difficult to improve. Every document can benefit from a review by a fresh pair of eyes—as many as possible, in …

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LawProse Lesson #215: How do you decide which Latin phrases to italicize?

How do you decide which Latin phrases to italicize and which ones to keep in roman type? The answer depends on how thoroughly naturalized the word, abbreviation, or phrase has become in English. If the term has become so commonplace in English that it is said to be “anglicized,” it stays in roman type; if …

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LawProse Lesson #214: Lawyers’ biggest failing as writers.

Lawyers’ biggest failing as writers. What’s the most pervasive flaw among legal writers? It’s the tendency to begin writing before fully understanding the message to be conveyed. Lawyers often don’t think through what they want to say until they’re already writing—and they therefore meander, backtrack, and even restart. Unless they spend a great deal of …

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LawProse Lesson #213: Caselaw: one word or two?

Caselaw: one word or two? Two-syllable noun phrases often begin as separates, then become hyphenated, and then become solidified. Take, for example, the word today. It started as two words {to day}. In the 19th century it was commonly hyphenated {to-day}. The Century Dictionary (1895) listed to-day as the preferred form with today as a variant. In 1934 the …

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LawProse Lesson #212: Be the voice of reason.

Does a snarky tone win in motion practice? Among the most common remarks that judges make about advocacy is how extremely distasteful they find digs, jabs, put-downs, and negative characterization of opposing counsel and opposing clients. Yet litigators everywhere seem to adopt these tactics more than ever. So what’s the best approach, and why? Should …

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LawProse Lesson #211: Nouns of multitude.

Nouns of multitude.      Last week, we discussed the distinction between collective nouns and mass nouns and how you treat each in terms of numerical agreement. This week, we’ll address the related concept of nouns of multitude {a number of} {a bunch of} {a lot of}. These constructions typically place a collective noun after …

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LawProse Lesson #210: Collective vs. Mass Nouns

Collective vs. Mass Nouns.      In last week’s lesson on and/or, one of the examples used this sentence: The team of lawyers, paralegals, and mediators resolved the case quickly for their clients. One reader wrote and asked why the correct wording isn’t “its clients” instead of “their clients.” It’s an arguable point—but one with a preponderance …

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LawProse Lesson #209: Ban “and/or”

Ban and/or. And/or dates from the mid-19th century. Although lawyers and courts have vilified and/or for most of its life, this bit of legalese continues to infest legal writing and create ambiguity. The literal sense of and/or is “both or either,” so that A and/or B means (1) “A,” (2) “B,” or (3) “both A and B.” Since and/or has a …

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LawProse Lesson #208: “Graduate,” vb.

Graduate, vb.      Last week, at a performance of The Originalist in Washington, D.C., the stage actor Ed Gero—in a superb portrayal of Justice Antonin Scalia—delivered the small gaffe of having the Justice say “she graduated Harvard College.” After receiving a friendly suggestion later that evening, Mr. Gero assured me that in future performances, …

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LawProse Lesson #207: Three ways to improve a statement of facts.

Three ways to improve a statement of facts. First, let it progress naturally from beginning to end—almost invariably in chronological order. Just tell the judge your story of the relevant events that gave rise to this legal dispute. Presenting the facts in order gives the judge a more coherent picture of the case. Second, remove …

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LawProse Lesson #206: Statutory and Contractual Interpretation.

What important skill is most generally lacking among law-school graduates? Almost certainly this: the ability to develop, hone, and deliver arguments about the interpretation of contracts and statutes. Lawyers often spend months working on text-based cases without realizing that their best argument is the ordinary-meaning canon, the negative-implication canon, the last-antecedent canon, the surplusage canon, …

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LawProse Lesson #205: Lay, v.t. vs. lie, v.i.

Lay, v.t. vs. lie, v.i. These two short verbs can cause tall trouble. Let’s lay down some helpful guidelines so we won’t be accused of lying down on the job. Lay means “to put down, place, or arrange.” It’s always transitive—it needs a direct object {Please lay the purchase contract on Stan’s desk.}. Lie means “to recline, be …

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LawProse Lesson #204: “Lay of the land” or “lie of the land”?

Lay of the land or lie of the land? Literally, the phrase means “the arrangement of an area’s terrain; topography.” Figuratively, it refers to “the facts of a given situation; the current state of affairs.” The phrase is an Americanism dating from the late 18th century. From the beginning, it’s been lay of the land—although as …

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Garner’s Usage Tip of the Day: Miscellaneous Entries.

Miscellaneous Entries. libido. Although dictionaries once recorded /li-BIY-doh/ as the preferred pronunciation, /li-BEE-doh/ is now the established preference in American English. licorice (/LiK-uh-rish/) is the standard spelling. “Liquorice” is a variant form. This word shouldn’t be confused with its uncommon homophones, “lickerish” (= lascivious, lecherous) and “liquorish” (= tasting like liquor). lie/lay/lain. So inflected (except …

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LawProse Lesson #203: “Lie low” or “lay low”?

Lie low or lay low?      Both phrases could be correct—it depends on the tense you are using. Use lie low in the present tense; lay low in the past tense. Ex.: The celebrity is lying low for a few weeks to avoid news reporters. Ex.: Last month, that same celebrity lay low to avoid the paparazzi. Ex.: He has …

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LawProse Lesson #202: Parenthetical plurals.

Should you use “(s)” to indicate that a noun could be either singular or plural? Competent drafters should avoid creating parenthetical plurals and craft better ways to express a thought. A parenthetical plural is formed when an “(s)” is added to the end of a singular noun to indicate that the statement may apply to …

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