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Legal Meanings and Related Grammar

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Grammar may be boring to learn, but it is important to know. It is, in fact, the basis of all effective writing. You will never be praised for good grammar, but you will surely be censured for its absence. And if your excellent reasoning is couched in ungrammatical language, don't expect to get the credit for it that you deserve.

Of course, there is more to effective writing than standard grammar. To write well you need appropriate style and organization, and good analysis. But the sine qua non of writing is good grammar. Your clients will depend on it; courts will expect it. If your grammar is substandard, expect to be embarrassed.


Take, for example, the following case, in which the issue was whether the indictment under which the defendant was charged was legally adequate. The indictment read, in part:
 
  • The store building there situated, the property of M . . . A . . ., in which store building was kept for sale valuable things, to-wit: goods, ware and merchandise unlawfully, feloniously and burglariously did break and enter, with intent the goods, wares and merchandise of said M . . . A . . . then and there being in said store building unlawfully, feloniously and then and there being in said store building burglariously to take, steal and carry away [various items] ... the said [defendant] having been twice previously convicted of felonies . . . [The remainder of the indictment charges the defendant with being a recidivist.]

The defendant demurred and presented as expert witness an English teacher who testified that consistent with English grammatical rules, the indictment did not charge the defendant with doing anything.

The judge agreed with the defendant that under the rules of good English, the district attorney's indictment charged "goods, ware and merchandise" with breaking and entering, or that, alternatively, the indictment was a "largely unintelligible effort" to describe "the store building" as the perpetrator of the crime. Certainly, said the judge, the indictment failed to charge the defendant with any crime.

Thus, under the rules of standard English, the defendant should go free. Reluctantly, however, the judge held the indictment legally (though not grammatically) adequate, adding:
 
  • Establishment of a literate bar is a worthy aspiration. It’s without doubt a consummation devoutly to be wished. Its achievement, however, must be relegated to means other than reversal of criminal convictions justly and lawfully secured. The assignment of error is rejected.

But other courts have held against drafters of contracts containing incorrect grammar. In one such case the court scolded the insurance company policy drafter:
 
  • [T]he language [of this policy] follows no well-recognized grammatical rules. Elemental rules of sentence construction were totally ignored in the drafting of the clause upon which the Appellant relies.

Any student of law or composition assigned to draft language to accomplish the Appellant's goal of creating a clause to exclude coverage, in the situation presented in this case, would probably receive a failing grade if he presented the contract clause found in the Appellant's policy. It would have been very easy for the Appellant to set forth its intent in a clear and succinct manner. It certainly has not done so in this situation.

Even a minor grammatical error like a missing comma can lead to defeat in court. One court held that the absence of a single comma permitted a plaintiff trucking company to ship beyond a 100-mile limit, although both the plaintiff and the defendant intended the contract to limit shipping to 100 miles.

For law students, poor grammar may lower grades. Law professors, like other people, often unconsciously assume that grammatical-and even spell ing-errors indicate inadequate thinking. The professor's reasoning process goes something like this: "This student can't even write in standard English. How can he (or she) possibly resolve complex legal problems?" So the writer of a final examination that contains grammar and spelling errors may be handicapped even before the professor considers the ideas presented. Finally, grammatical correctness is important in legal writing for two more reasons: (1) so that your readers can focus on what you are saying, not on how badly you are saying it; and (2) so that your readers can understand what you mean-even if they would rather not.

You will find that correct grammar is not hard to learn. Much of what follows in this article you already learned once, long ago, and you will find the re-discovery of old rules a pleasant experience.

Some Definitions of Grammatical Terms
Defined below are some of the terms that appear in this article. Grammatical definitions are risky, however, because grammarians disagree about them. For example, the traditional definition of a sentence is that it is a group of words conveying a complete thought, but this definition leaves out more sentences than it includes, and it has been rejected by modem grammarians.

Even among modem grammarians, there is no consensus regarding the definition of a sentence. So take the definitions offered below with a grain of salt. Do not memorize them; just use them to aid you in understanding the discussions in this article.

Verbs:
Verbs are sometimes called the action words of a sentence. An important function of verbs is that they indicate what the subject of the sentence is doing. Finite verbs contain tense, mood, and voice. Sentences must contain finite verbs. For example, the first sentence below contains a past tense finite verb. The second locution is not a sentence; it is a sentence fragment because it contains no finite verb, only a present participle of a verb:
 
  • The girl walked down the street. (Finite verb, complete sentence.)
  • The girl walking down the street. (No finite verb, sentence fragment.)

Tense:
When you think of tense, think of time. Verbs express three main time divisions (past, present, and future). In English only two tenses, present, past, are indicated in the verb itself. Other time indications are added with helping words. For example,
 
  • Present Tense: walk; throw, is thrown
  • Past Tense: walked; threw, was thrown
  • Future Tense: will walk, shall walk; will throw, shall throw, will be thrown, shall be thrown
  • Present Perfect Tense: have (has) walked; have (has) thrown, have (has) been thrown
  • Past Perfect Tense: had walked; had thrown, had been thrown
  • Future Perfect Tense: will have walked, shall have walked; will have thrown, shall have thrown, will have been thrown, shall have been thrown Mood: English verbs can indicate three moods, indicative, imperative, and subjunctive.
  • When you change the verb to passive voice, you move the former object to the subject slot, and the former subject becomes the object of a preposition (or is often deleted).

Nouns:
Nouns usually denote persons, places, things, actions, or qualities. They can be count (apples, chairs) or non-count (happiness, information). They can be common (man, idea) or proper (Buffalo, John Jones).
They can be concrete (trees, table) or abstract (irony, love). Nouns function in sentences as subjects (the sun is shining), objects (visit Russia), indirect objects (Give John the book) and objects of prepositions (Listen to the music).

Pronouns:
These are substitute for nouns and function like nouns. The most common kinds are personal pronouns (/, you, he, she, it, we, and they); indefinite pronouns (anyone, anybody, anything, someone, some body, something, everyone, everybody, everything) and relative pronouns (who/whom, which, that).

Adjectives:
These modify nouns and pronouns, and should be placed near the words they modify. Some examples of adjectives are:

• The uncooperative witness
• A just claim
• A directed verdict
• An attractive nuisance
• A nuisance attractive to children.

Adverbs:
They modify verbs or adjectives, other adverbs, and many other words. Adverbs often state where, how, when, or how often.

Some examples are:

• An extremely old contract.
• He needs the answer now,
• She is very pleasant to work with,
• They seldom need help.

Sentence:
A group of words that conveys an idea and contains a subject and a predicate. However, when such a group of words is preceded by a subordinator, it is not a sentence but a subordinate (dependent) clause.

Subjects: Nouns and pronouns can be subjects. Phrases and gerunds are sometimes subjects too.

• The defense attorney persuaded the jury. (Noun subject)
• Someone entered the house without permission. (Pronoun subject)
• Almost unbelievable is how he got in. (Phrase subject)
• Seeing is believing. (Gerund subject)

Predicate:
The part of a sentence that expresses something about the subject. The predicate of a sentence always includes a finite verb and sometimes includes other components.
• The defendant collapsed. (Verb as predicate)
• The prosecuting attorney questioned the witness. (Verb plus object as predicate)

Clause:
A group of words containing a subject and a predicate, and conveying an idea. If the clause can stand alone as a sentence, it is called an independent (main) clause; if it cannot, it is called a dependent (subordinate) clause,
• The plaintiff applauded the decision; the defendant deplored it. (Each clause is independent.)
• Although the plaintiff applauded the decision, the defendant deplored it. (The first clause is dependent; the second clause is independent.)

Subordinators:
Words that, when they introduce a clause, make it a dependent (subordinate) clause. Some subordinators are when, if, after, whereas, although, while, because, since, that, which, whoever, whichever Coordinators: Words that join independent (main) clauses.

Phrase:
A group of related words that lack either a subject or a predicate, or both. Some phrases are:
• John, the defendant's counsel, . . . (no predicate)
• Lacking the proper evidence, . . . (no subject)

Punctuation
A. When to Use a Comma
If you don't know the rules, you probably rely on guesswork in using commas. Guessing will work some of the time, because your vocal intonation and pauses ("sentence contour") help you decide where commas belong. But guesswork is not infallible, and what usually happens is that if you don't know the rules you will omit commas where they belong and put them in where they don't belong. The following constructions require commas; if a construction does not appear here, it probably needs no comma. One good rule to follow: never separate the subject of a sentence from its predicate unless you have a good reason-like one of the ones listed below.
Use a comma:
1. Before coordinating conjunctions (and, but, or, for, nor . . .) that join independent clauses:
• The defense was inadequate, and an appeal is probable.
• The landlord was not liable for the defect, for he was unaware of it.
• The Socratic method of teaching is pedagogically stimulating, but it has drawbacks.

2. After dependent clauses, when they precede independent clauses:
• Although she has retired, [dependent clause] she is still active.
• [independent clause]
• Before the defendant is sentenced, [dependent clause] the court considers mitigating circumstances.
• The landlord was not liable for the tenant's injury, since at common law he had no duty to repair the tenant's apartment.
• The jury retired to deliberate after the trial ended.

3. Following other introductory language:
a. Introductory phrases
b. Transitional phrases
c. Interjections

4. To separate items in a series:
• Stolen during the armed robbery were credit cards, checks, and cash of an unknown amount.
• The plaintiff turned over all his holdings, houses and lands.
• The plaintiff turned over all his holdings, houses, and lands.
• The next two sentences illustrate the same point:
• The government has announced the capture of five smugglers, three women, and two youths. (Ten persons, five smugglers.)
• The government has announced the capture of five smugglers, three women and two youths. (Five persons, five smugglers.)
• Even the omission of a single comma sometimes makes it impossible for the reader to decide what grouping of items the drafter intended. Here is the way the First Restatement of Torts defined assault:
• An act other than the mere speaking of words which, directly or indirectly, is a legal cause of putting another in apprehension of an immediate and harmful or offensive contact.
Without a comma to guide you, you cannot tell whether the person's apprehension must be of an immediate and harmful, or offensive contact, or an immediate, and harmful or offensive contact. As you know from your torts class, the apprehension must be immediate, and of a harmful or offensive contact, and the definition should be punctuated to reflect that meaning:
• An act other than the mere speaking of words which, directly or indirectly, is a legal cause of putting another in apprehension of an immediate, and harmful or offensive contact.

5. To separate non-restrictive relative clauses:
• Professor Mary Smith, who is a member of this faculty, is on sabbatical at present.

6. To set off appositives:
• John Jones, the lieutenant-governor, is a graduate of this law school.

1. Like most rules, this one has an exception: certain well-known phrases like "for argument's sake" are acceptable. And group nouns composed of human beings use the possessive apostrophe. For example,
• the committee's policy (but "the policy of the committee" is also acceptable,)
• the corporation's profits (but "the profits of the corporation" is also acceptable.)
• the alumni association's program (but "the program of the alumni" is also acceptable).

2. Omit the possessive apostrophe in possessive personal pronouns.
• For example, the following are correct forms:
• The book is hers.
• The decision is theirs.
• The dog is ours.
• The luggage is yours.

3. Now for where the possessive apostrophe is used:
• In most singular animate nouns, add s to form the possessive:
• the author's words
• the dog's tail
• Joe's house
• the professor's class.
• In plural animate nouns ending in an 5 or z sound, add the possessive apostrophe after the final letter:
• boys' caps
• professors' classes
• ladies' clubs
• geniuses' problems
• In one-syllable singular animate nouns that end in an s or a ? sound, add s:
• the boss's request
• the horse's legs
• James's appointment
• In singular nouns of more than one syllable, add only an apostrophe:
• Moses’ leadership
• Socrates' death
• Louise's deposition
• Horace's hearing
• Alice's book
When two or more nouns are used to denote possession, only the last noun in the series takes the possessive form when possession is shared by all members of the group. For example:
• John, Mary, and Bilp’s property (joint ownership)
• Mary and Paul’s will (only one will)
• Joe and Joem's tax form (joint filing)
• But when separate possession is indicated, every noun in the list must take the possessive form:
• John's, Mary's, and Bilp’s property (three pieces of property)
• Mary's and Paul's wills (two separate wills)
• Joe's and Joan's tax forms (separate filing)
F. When to Use a Hyphen
The decision of when and where to use hyphens is as much stylistic as it is grammatical. Generally speaking, use hyphens for three reasons: (1) to express the idea of the unity of two or more words; (2) to avoid ambiguity; and (3) to prevent mispronunciation.
Examples follow.
1. Hyphenate to indicate the unity of two or more words. This rule applies to adjectives and to nouns. First, adjectives:
• A well-known legal rule
• A six-member law firm
• A value-added tax
• An open-mind-shut case
• Four- five- and six-page pleadings
• Black-letter law
• An unusually negligent act
• An increasingly severe sentence
• A suddenly appearing witness
Applying the rule of unity to nouns, you should realize that hyphenation of nouns represents one stage in a process. What happens is that when two or more nouns begin to be used together, first they are considered two separate words, then they are (usually) hyphenated, and finally they become one word.
This is what has happened in the following words:
First Later Currently
ice box ice-box icebox
ball park ball-park ballpark
mail man mail-man mailman
racquet ball racquet-ball racquetball
Even American writers continue to use hyphens in certain titles, for example:
• Attorney-at-law
• Editor-in-chief
• Commander-in-chief
• President-elect
G. When and Where to Use Quotation Marks
The modem tendency is to use quotation marks sparingly. Omit quotation marks around common nicknames, biblical references, proverbs, well-known literary quotations or commonly known facts, available in numerous sources. Here are illustrations of these;
• Bob insisted that Dick be available to attend the meeting.
• Let the dead bury their dead,
• Still waters run deep.
• The criminal should be hoist with his own petard.
• Benjamin Franklin was the oldest delegate at the 1787 Constitutional Convention.
• When you quote single words or short phrases, use quotation marks, but no commas if they are an integral part of the sentence in which they appear:
• What was meant by the term "insurance agent" in an insurance code was decided by the meaning of the language in an employment security act.

III. Case and Number
A. Personal Pronouns
1. Identification
The personal pronouns are I/me, you, he/him, she/her, and they/them.

2. Function
Their case depends upon their function in the sentence.

3. After than or as
The personal pronoun takes the subjective or objective form depending upon whether it is the subject or object of the verb (in its own clause) either stated or implied. Thus:
• John admires Joe more than me.
• (John admires Joe more than John admires me.)
• John admires Joe more than I,
• (John admires Joe more than I do.)
• College students socialize more than law students; law students study more than they (do).
• Phil is younger than Jack but taller than he (is).

4. The -self pronouns: These are used only as reflexive or intensive pronouns. Do not use them as substitutes for / or me.
* John and myself were studying.
{Myself is an intensive pronoun; substitute /.)
* The question was addressed to myself.
(Myself is a reflexive pronoun; substitute me.)
The following two sentences indicate the correct use of intensive and reflexive pronouns:
• I can do it myself, (intensive pronoun)
• I injured myself yesterday, (reflexive pronoun)

IV. Sentence Structure
A. How to Avoid Sentence Fragments
A sentence fragment results when you place a capital letter at the beginning and a period at the end of a group of words that are not a grammatical sentence. Legal professionals do not make this error often, but when they do, their writing suffers a cosmetic blemish that is hard to overcome. The two main kinds of sentence fragments are
1. Dependent clauses used as sentences
2. Groups of words lacking a finite verb.


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