10 common usages to avoid in your written Legal English

People who take the English language seriously enough to make it their business—writers, editors, writing teachers, language teachers, translators, and so on—can have strong opinions about English grammar and usage. As one writer recently observed in the New York Times, “If you write for a living, it’s impossible not to adore certain words, [sic] and revile others.” I of course have my own pet peeves about English grammar and usage (such as including commas when you don’t need them, as that quotation from the New York Times does).

How many pet peeves about English do I have? This post covers ten, but the number could go higher. As I promised in this blog’s first round-up post on Legal English, I’m working on an entire post to explain why I used a hyphen for round-up when many people today would use roundup. That post will discuss problems I see with trends in using hyphens, at least in written American English. This current post also does not address the trendy mis-use of graduate as a transitive verb, yet another point of style that irks me. In other words, this post certainly does not exhaust my peeves and preferences on English grammar and usage.

But the ten points of English grammar and style discussed in this post do make a good start of pointing you toward firmer, less-confusing prose when you write on legal topics in English. Watch for the ten usages I list here, use the alternative principles or examples I offer, and you’ll be well on your way to writing legal documents in English with the clarity that your international readers need.

In the order in which I jotted them down, here are ten common points of English usage that you should avoid—and what you should do instead—when you write on legal topics in English:

1. Verbiage as a neutral term

Until recently, verbiage was a slur, a disparaging synonym for fat, fluff, or filler in reference to a group of words. Today, through what seems to be functionally illiterate laziness, the term is enjoying a neutral usage, as when a web developer last year referred to the words on the main pages on this site as verbiage. I was surprised that he would insult my work so openly—until I realized that he was using verbiage only as a harmless synonym for neutral words such as words or copy (i.e., the words that copywriters write). Observing such a difference in meanings—keeping the negative negative and the neutral neutral—will help you avoid such misunderstandings altogether.

2. The “floating only”

Work to keep only closest to what it really modifies. Miscommunications can more easily happen when you let only float to parts of a sentence in ways that don’t express your intended meaning.

The title of an old, popular American song, “I only have eyes for you,” helps to show why. The songwriter probably meant to assure his beloved that he looks at no one but her because she inspires such deep feelings in him. To express that meaning, though, he needed to say, “I have eyes for only you.” By placing only before have, the songwriter actually said that he finds his beloved attractive (what his eyes can perceive), but that’s the extent of his interest in her. (“I only have eyes for you. But, for Guinivere, I have so much more.”) One can only hope that the beloved did not read the songwriter’s words with the precision of a grammarian or an attorney.

To see the “floating only” in action, read this short post on “a little lesson about ‘only’.” Note the list of six versions of the same sentence, with only appearing in a different place in each sentence. Note especially how the meaning changes, from one sentence to the next, based solely on what only actually modifies in each sentence. The lesson for you is this: When you use only in your written Legal English, place the word in the sentence so that your sentence says what you mean to say.

3. Omitted that for indirect statements

It’s old-fashioned, and it slows the pace of an English sentence. But the use of that to introduce an indirect statement is never wrong, and sometimes it’s essential for clear expression. It also adds a certain “classical restraint” to a sentence that fits the relatively formal tone you’ll need in so much of your professional writing in English as an ESL attorney.

This age’s preference to speed up the English sentence—to make all English prose conform to a breezy, conversational, journalistic model—often overlooks these benefits of that when introducing indirect statements. And the clarity of English prose suffers in the process.

Consider: The law professor observed contemporary law students will face a difficult job market when they graduate from law school. (N.B. That sentence does not say “graduate law school.”) The writer of the sentence intends to report a statement that a certain law professor made about “contemporary law students.” But because students can be a direct object of the verb observed, the reader stumbles, if only for a split-second, before she realizes that the sentence contains an indirect statement. Simply adding that to the sentence (“The law professor observed that contemporary law students . . .”) would help the reader assimilate the writer’s intended meaning as soon as possible.

You should see a paradox here: This particular method of “speeding up English prose” often has the opposite effect of slowing down English prose by making readers work harder to understand the use of a fairly simple, straightforward point of grammar (indirect statements). Speeding up the pace of writing can be a good thing. But if the method of achieving that goal often actually defeats the goal, then you should avoid using that method.

Here’s a good rule of thumb: If the noun or pronoun following a verb introducing an indirect statement can be a direct object of that verb, you probably should use that to introduce the indirect statement. If the subject of an indirect statement cannot be a direct object, it’s safe to omit the that, as in this example: He knows I love Rome. The I in that sentence cannot be a direct object, which means that you can safely omit that. Of course, you also could play it safe, as modern Italian does, and simply use that (in Italian, che) every time your writing includes an indirect statement.

4. Omitted serial comma

Like the that that introduces indirect statements, the serial comma is never wrong, sometimes essential, and always a source of measured restraint. What’s a serial comma? I just used one: the comma between essential and and in the first sentence of this paragraph is a serial comma. A serial comma is the comma that separates the last two items in a series of at least three items.

Omitting a serial comma can blur your meaning by making the last item in a series seem to be part of the preceding item, instead of a separate item, as in this example:

This court has several grounds for jurisdiction: the defendant’s local properties, advertising and travel and personal ties that have business implications.

Here, if the writer intends only three categories—local properties, advertising and travel, and personal ties—then a comma between travel and and would clarify the three intended categories.

5. Due to for reason or result instead of for obligation

It’s common anymore for mother-tongue writers or speakers of English to use the due to construction to describe reasons or results (The defendant appears before the court today due to service of a summons upon him.). For the sake of both clarity and elegance, you should save due to for descriptions of obligations (The money due to her totaled $1,000.00.). If you’re writing about causation, use words that clearly and elegantly denote causation (The defendant appears today because a summons was served upon him, or This lawsuit resulted from the parties’ disagreement about the definition.).

6. May instead of might

This pet peeve is a lost cause, but I’ll go down swinging on it anyway.

Many mother-tongue writers use the auxiliary verbs may and might interchangeably. That’s unfortunate because these two words do have separate meanings, and their usage would be less confusing if writers exercised the simple discipline to use the separate meanings consistently.

  • may = permission, right, entitlement
  • might = possibility

Use those meanings consistently in your English prose, and you’ll clarify an important area of your written Legal English. Consider: The publisher, in its sole discretion, may withhold royalties, but that result might not happen. 

7. Slash mark instead of or

Laziness, or perhaps the largely unthinking trendy desire to speed up the English sentence, invades this list again.

Mother-tongue American writers today commonly write sentences punctuated this way: This fall I might go to Milan and/or Rome. (N.B. If you’re consistently using may and might as this post suggests, the preceding sentence’s meaning changes if you use may instead of might.) For your relatively formal ESL written Legal English, you should avoid such inelegant laziness and simply write what you really mean, using English words instead of a trendy punctuation mark to convey your meaning: This fall I might go to Milan, Rome, or both Milan and Rome. Clearly stating your meaning in such instances does require you to distance yourself, just a little, from the contemporary fashion of seeing oneself as too busy to type a handful or two of extra characters in a document. But that’s OK.

8. Oftentimes instead of often

I venture to say that, until fairly recently, no such word as oftentimes existed in English. Even if I see proof that the word has existed for decades or centuries, I’ll still reject the word because its redundancy renders it nonsensical and unnecessary. The word often already contains the idea of “multiple times.” In a very real sense, then, when you say oftentimes, you’re actually saying something like oftentimestimes. Avoid this silliness as often as you can.

9. Utilize instead of use

Americans often put on airs by saying utilize when all they really mean is the normal, everyday concept expressed by the perfectly usable (not utilizable) verb use. Compared to use, the two extra syllables in utilize add no extra meaning whatsoever, and the word conveys an artificial formality that transforms your writing from formal to pompous. Don’t do that.

10. Ongoing instead of continuing

Things do not ongo in English. The verb to ongo does not exist in English. That fact of vocabulary alone makes the present active participle ongoing sheer nonsense. In English, things cannot ongo. They do go on. They persist. They continue. But they absolutely, positively never, ever ongo. Prune the nonsensical ugliness of ongoing from your English vocabulary posthaste. Use the literate, sensible, accurate continuing instead—always.

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These points of style certainly are not the only ones that this blog could cover. I already have a list of eight more; I’ll publish another “pet peeves” post when that list grows to another 10-12 points of style that are worth addressing. In the meantime, stay on the good side of this post’s ten points to help keep your English clear when you write legal documents in English.

What other specific points of English grammar or style trouble or bother you? Let me know by posting comments here on the blog, by sending them to me in an email, or by using them to start a discussion thread in the “Advanced ESL Legal English” community on Google+.

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6 thoughts on “10 common usages to avoid in your written Legal English

  1. Excellent article, except for one thing: “The serial comma is never wrong.”
    Wrong.
    It can be, if by “wrong” we mean “confusing”.

    Without serial comma: “X, Y and Z” can be confusing if “Y and Z” can be mistaken as an appositive for “X”.
    e.g. “I love my parents, Elvis and Marilyn Monroe.”

    With serial comma: “X, Y, and Z” can be confusing if “Y” can be mistaken as an appositive for “X”.
    e.g. “I love my father, Elvis, and Marilyn Monroe”.

    It surprises me that so many people have a blind spot on this one. The fact is, you need to exercise judgement before using or omitting the serial comma.

  2. Thanks for stopping by, Oliver, and thanks for your comment. It’s good to hear that you liked (most of) this post.

    You raise a very good point — good enough to get me to consider modifying my blind spot, though I’m still not ready to remove it altogether.

    In drafting this post, I worked only from a memory that the Chicago Manual of Style once authorized my statement that the serial comma is never wrong. As it turns out, my memory served me well on that point. The online edition of the CMOS, which I’ve now consulted at this URL –> http://www.chicagomanualofstyle.org/qanda/data/faq/topics/Commas.html?page=4, still makes that claim: “Since [the serial comma] is sometimes needed, and is never wrong, the simplest way to impose consistency without having to stop and think about each instance is to form a habit of adding the serial comma.” To the extent that my statement reveals a blind spot, then, I’m at least keeping pretty good company in my blindness.

    At the same time, your comment is an excellent reminder that all rules of grammar and points of style ultimately must yield if following a rule or an established practice defeats communication by confusing the reader. Instead of saying that the serial comma is never wrong, maybe it would be better to say that a rebuttable but nonetheless very strong presumption favors use of the serial comma. What do you think?

  3. Being the grammar geek that I am, you can imagine how much I liked your post and I agree with most of the things you said. However, there are a few that may be discussed in more details:

    - “Due to” for reason or result instead of for obligation
    While I personally avoid using it to express reason and prefer “because of”, this use is not incorrect according to dictionaries (both Longman and Cambridge).

    - may vs might
    With this one I would say you are partially right, as both can be used to express possibility, albeit different degrees.
    e.g. He may be at home vs He might be at home.
    While today they can be used interchangeably, “might” expresses a greater degree of uncertainty. But feel free to disagree :)

    -oftentimes and utilize
    I totally agree. I just can’t stand them.

    -ongoing
    Can’t see anything wrong with it to be honest. While I see where you are coming from (there is no such thing as “to ongo”), I still think it is OK as it has derived from “to go on”.

  4. Thanks as always for your insights and comments, Alina. It’s good to see you online somewhere besides on Google+ for a change. :-)

    Please note that this post does not say that my recommended usages are “right” or “correct.” I actually took great care to avoid such statements because I’m well aware that all of the usages I discourage here are quite OK from a descriptivist’s perspective; if many people did not see them as OK, I’d have nothing to argue against in this post. Instead, as the post says, I’m trying to “point[ ] you toward firmer, less-confusing prose,” not “correct” prose in some absolute sense of the term. Writing is much more interesting — and much more productive — if we approach it as questions of “effective vs. ineffective” instead of “right vs. wrong.” I sang that tune for a couple of decades in teaching writing to American undergraduates, and I’m still singing it now.

    Thus, in the case of “because of” and “due to,” and in that of “might” and “may,” I’m encouraging a stricter division of meanings — precisely in hopes of “pointing [my readers] toward firmer, less-confusing prose.” Of course, “due to” commonly refers to causation. Especially in legal writing, though, where writers need to avoid suggesting obligation if they do not mean obligation, using “due to” indiscriminately can cause confusion (even momentary confusion) that a stricter split of meanings would easily avoid. As for “might” and “may,” I’ve never bought the “gradation of possibility” you mention; that’s splitting far too fine a hair for me. And, besides, such a gradation leads to even more confusions and overlaps of meanings.

    Re: ongoing … Again, it’s not a matter of right and wrong. My issues here are logic and aesthetics, though I suppose it’s possible to read the utter absence of logic in “ongoing” as “wrong.”

    I know that you use English as a second language, and you write English at a very high level of proficiency, but remember the primary audience for this blog: attorneys who use English as a second language. I’ve long seen the goal of expository prose (certainly expository prose written for professional purposes) as being to exclude all unintended meanings so that the writer can narrow down to the one intended meaning in the prose. That’s quite different from literary writing, whether prose or poetry, where a multiplicity of meanings is often a positive achievement. For example, one poem by one of my favorites, Emily Dickinson (“Split the Lark”), easily supports at least three interpretations. Such a radically ambiguous use of language is often a mark of success in literary writing. But I daresay that it is never a success in expository writing for professional purposes.

    That’s why I’m trying to encourage a sharper division of meanings in some of the usage pairs noted in this post. As a further example, I also wholeheartedly support the split between “that” and “which” that has become so common in the past century. “Which” certainly can be a relative pronoun for a restrictive clause. Most of the time today, though (and that’s an important “most”), it’s better to reserve “which” for non-restrictive clauses — because the split of usages “point[s] you toward firmer, less-confusing prose.”

  5. Thank for reminding me about the target audience of the blog. I had totally overlooked that when writing my comments indeed. In this case, your points are indeed valid and they will help ESL lawyers write more clearly and avoid confusion.

    And yes, it is nice to communicate outside Google+ and Twitter. I have just subscribed to your blog as well to make sure I don’t miss any posts. They are interesting and useful and not just for ESL lawyers.

  6. The question of audience has been one of the continuing emphases on this blog. But audience eventually came to play another role, at least from my perspective, as the blog attracted readers besides ESL attorneys (while also attracting ESL attorneys, of course). The response from readers who are not ESL attorneys has been encouraging and gratifying, but it also led me to write an entire post on the question of this blog’s audience, “Who is this ‘you’, the primary reader of this blog?” You’ll find that post here: http://goo.gl/SOX1v.

    Thank you for the kind words, and thank you for subscribing to the blog. I’ll look forward to receiving notice that your subscription is in place.

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