Tag: Legal writing resources

Grammar Can Be Funny, But Not All Grammarians Are

Posted on | by Linda Kruschke | 2 Comments on Grammar Can Be Funny, But Not All Grammarians Are

By Linda Kruschke, Director of Legal Publications

This book review was originally written for the ACLEA (Association for Continuing Legal Education) newsletter called In the Loop. We are sharing it here today in celebration of National Grammar Day.

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If you work in legal publications (or any type of publications for that matter), grammar is important. Whether you are a legal editor, a copy editor, or a proofreader, you have to be a little bit pedantic about grammar, punctuation, and style.

But sometimes you just like to focus on the humorous side of grammar (yes, there really is a humorous side of grammar!). Sometimes you like to read books like the classic Eats, Shoots & Leaves by Lynne Truss. Or sometimes you enjoy the humor in more traditional grammar texts like Garner’s Dictionary of Legal Usage by Bryan Garner.

When I was asked to write a book review for In the Loop, I decided it would be fun to share a different humorous grammar book with the ACLEA folks, one that the legal publications and seminars people could both appreciate. So imagine my delight when I discovered Grammar Snobs Are Great Big Meanies by June Casagrande. I cracked it open (okay, I actually opened it on my Kindle, but don’t tell my fellow legal pubs folks) and started with the Note from the Author.

At the outset, Casagrande makes a distinction between grammar geeks—people who are fascinated by grammar and word usage—and grammar snobs—people who like to rub their superior grammar knowledge (which is apparently actually not that superior) in other people’s faces for spite. She claims to be the former, but proves quite early on in the book to be of the latter ilk.

Her mean-spirited attack of grammar gurus such as James Kilpatrick, Lynne Truss, and Bryan Garner, to name but a few, took me quite aback. It was not at all what I expected and not at all funny (at least not to me). In her first chapter, “A Snob for All Seasons,” she spends five pages attacking Kilpatrick as well as William Saffire. She ends with a single page on the grammar lesson of the chapter, using as an illustration a sentence involving a bug crawling up these grammarian’s butts. While the lesson was accurate on the use of “‘s” with compound subjects, it was hard to see through the unfunny language of the example.

In addition, she uses a fair amount of sexual humor in instances that are unwarranted and merely gratuitous. For example, in the discussion of the difference between “to lay” and “to lie,” she uses an example that involves police requiring suspects to “lay” rather than “lie” on the floor at a crime scene. Rather than focus on the everyday difference between these words, Casagrande homes in on the slang or vulgar meaning of the word “lay,” to have sexual intercourse. Her attempt at humor was lost on me and her lesson was not particularly helpful if one was truly confused about which of these two verbs to use.

On a positive note, I did find confirmation that my favorite birthday song does use the words “who” and “whom” correctly.

In the spirit of full disclosure, I confess I couldn’t finish this whole book, but I did slug through a good portion of it hoping to find a funny nugget. No such luck. All I found were insults to anyone who thinks that being pedantic (i.e. excessively concerned with minor details or rules) about grammar is a useful thing. As a Director of Legal Publications, pedantic editors are what I look for when hiring new staff. In legal publications consistency and accuracy are important; one can easily be pedantic without being a grammar snob. Likewise, as Casagrande illustrates, one can be a grammar snob (and meanie) without being particularly pedantic.

In short, I don’t recommend this book for the grammar lessons or the humor. I’ll keep looking for another good humorous grammar book to recommend.

Editorial Sloth, Lists, Etc.

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By Yasha Renner, Attorney Editor

It was a Friday, almost lunch time, and I was nearing the end of a chapter I was editing for the 2016 revision of Damages. I couldn’t figure out why the chapter’s author decided to include only four of the nine contractor designations cited in ORS 701.081 when they all seemed applicable. Does the author think less of locksmiths or home inspectors? I wondered.

Here’s the sentence:

As part of the registration process, a $10,000, $15,000, or $20,000 surety bond must be posted, depending on the contractor’s designation as a residential general contractor, a residential developer, a residential specialty contractor, or a residential limited contractor. ORS 701.068; ORS 701.081.

At a loss, a sly thought entered my mind; I could finish the sentence with an etc. That way I wouldn’t have to bother the author with a stupid question, nor would I have to endanger the assertion by adding the remaining actors, who (I am sure) were excluded for noble reasons. But to act on this temptation, I soon learned, would have been quite wrong. And just as I resolved to do so my conscience spoke, accusing me of editorial sloth—a capital vice.

So I did what I often do when faced with a question of editorial ethics: I turn to Bryan Garner, our department’s de facto editor in chief, who, with meekness and charity, invoked the following French proverb: “God save us from a lawyer’s et cetera.” Garner’s Dictionary of Legal Usage 331 (3rd ed. 2011). And thus, with the help of a higher power (i.e., a style guide), I was instantly freed from the enemy’s grip. “Still,” he counseled, “it would be foolish to lay down an absolute proscription against using etc., for often one simply cannot practicably list all that should be listed in a given context.” Id.

Alright, then, I thought to myself. I was relieved to know that etc. is not malum in se. But does the context here sanction its use? Certainly not, since I could list all of the designations. “Hideous!” my right-brain suddenly cried out, clearly bothered by the thought; and with that I yielded to its complaint. This sentence had to be pretty.

What’s an attorney editor to do?

Let’s just say I banished the offending half-truth. But that doesn’t really matter. What matters is that we lawyers don’t miss the moral here, which has nothing to do with style or grammar and everything to do with cultivating good habits, namely diligence and veracity, i.e., completeness. Because an incomplete thought, if aired, could become a scandal to others who, for instance, might be tempted to complete it for you, etc., etc.

Grammatical Mistake Leads to Animal Neglect

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By Dean Land, Legal Publications Attorney Editor

By my own unscientific methods, I’ve determined that “comprise” is the most misused verb in the English language. That kind of pervasive grammatical error has serious ramifications for an editor like me. When I read the sentence, “The Oregon Supreme Court is comprised of seven justices,” I get hung up. That sentence takes over my conscious thought. Priorities go out the window, and I forget to pick up dog food on the way home.

So what’s the problem? Many writers confuse the verb “comprise” with the verb “compose.” As stated in The Chicago Manual of Style, “To comprise is ‘to be made up of, to include’ {the whole comprises the parts}. To compose is ‘to make up, to form the substance of something’ {the parts compose the whole}.” Usage hawk Bryan Garner provides the correct passive-voice phrasing: “the whole is composed of the parts; the parts are comprised in the whole.” He points out that the phrase “comprised of” is “always wrong.”

Following that logic, we have a number of different ways to express the same thought:

  • The Oregon Supreme Court comprises seven justices.
  • Seven justices are comprised in the Oregon Supreme Court.
  • Seven justices compose the Oregon Supreme Court.
  • The Oregon Supreme Court is composed of seven justices.

Some are more awkward than others, but all are correct. Most importantly, none of them will cause my dogs to go hungry.

Because misery loves company, I’m happy to report that software engineer Bryan Henderson has compulsively removed every single instance of “comprised of,” numbering in the tens of thousands, on Wikipedia. I just hope that guy doesn’t have pets.

Shall I Compare Thee to a Summer’s Day? Probably not.

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by Ian Pisarcik, Legal Publications Attorney Editor

The writer David Foster Wallace was so fond of words that he used to lie awake for hours reading the dictionary and circling the ones he liked best: Maugre, Tarantism, Ruck, Sciolism, Primipara. He is a man who once wrote “I do things like get in a taxi and say, ‘The library, and step on it.’” His desire to use uncommon words was matched by his desire to know the meaning of those uncommon words. Many lawyers, it seems at times, share only the first desire. Nowhere is this more evident than in the enduring use of the word shall.

Lawyers rely heavily on the word shall, and while the most common interpretation of the word is that it denotes a mandatory action (i.e., must), lawyers do not consistently use it this way. As lawyer and lexicographer Bryan Garner points out, “that’s why courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice-versa.” Let’s look at some examples, shall we?

  1. “No person shall operate a motorboat at a speed greater than is reasonable.” If shall means must, then this sentence is telling us that no person must operate a motorboat at a speed greater than reasonable. In other words, you’re not required to operate a motorboat at a speed greater than is reasonable, but if you want to, knock yourself out. This is clearly not the intended meaning. What the author is trying to say is: “No person may operate a motorboat at a speed greater than is reasonable.” In other words, you are not allowed to do this.
  2. “The sender shall have fully complied with the requirement to send notice, when the sender obtains electronic confirmation that the transmission has been received.” Is shall denoting a mandatory action here? Of course not. The sentence is simply defining when the sender has fully complied: “The sender has complied . . . when the sender obtains electronic confirmation. . .”
  3. “The agreement shall be terminated.” A duty must be imposed on a capable actor. An agreement is not a capable actor. What this sentence is intended to mean is that the agreement is terminated (presumably by someone or some action, but that’s a post for another day).

The word shall is rarely used consistently throughout a legal document. And the result is that, as Garner puts it, “the word breeds litigation.” According to Garner, the multivolume Words and Phrases, published by Thomson Reuters, contains 107 pages of small-type cases interpreting the word shall. Garner hoped to cut down on some of this litigation when he revised the civil, appellate, and criminal federal rules, and dropped the word shall completely. The editors at the Oregon State Bar have chosen to do the same. We shall banish the word from our vocabulary, and don’t get us started on witnesseth . . .

The Remaking of the Oregon Real Estate Deskbook

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The editorial board for the upcoming Oregon Real Estate Deskbook has reorganized the five current real estate series books, combining chapters that covered the same topics and planning the addition of new chapters to touch on topics not addressed before.  The editorial board also determined that four chapters from Foreclosing Security Interests more logically fit within a comprehensive real estate deskbook.  The new five-volume book will be available soon, available to purchase as a complete set or as individual volumes.  Watch for information on preordering a copy of this publication to take advantage of an early discount.  The Oregon Real Estate Deskbook is a work in progress, with chapters being posted online as they become ready.

Taking a Look at the Dreaded Bluebook

Posted on | by Linda Kruschke | 1 Comment on Taking a Look at the Dreaded Bluebook

By Ian Pisarcik, Legal Publications Attorney Editor

I have a confession to make: I like The Bluebook: A Uniform System of Citation. I actually think it’s well organized for the amount of information it contains, and I think there are good reasons behind many of the rules. Mary Whisner, a reference librarian at the University of Washington School of Law, provides a good example:

Most law reviews are paginated consecutively through a volume, so we can cite an article unambiguously by volume and page: 79 J.Name 36 (2003). But if a journal or magazine starts numbering with page one each issue within a volume, then the rule has to be different. Volume 79 of a given journal might have twelve different articles starting on page 36, so it makes sense instead to cite journals that are not paginated consecutively with the format: J.Name, June 2003, at 36.

I even sort of enjoy thumbing through The Bluebook. But, I realize most attorneys aren’t as nerdy enamored with The Bluebook as I am. I would wager that most attorneys are more likely to recognize the sentiments of Judge Richard Posner:

Needless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness¾‘The horror! The horror!’¾and am tempted to end there.

Nevertheless, in the interest of making The Bluebook a more familiar (if not a more comfortable) place to visit, I thought I would take the next couple posts to point out a few rules I commonly see ignored or misinterpreted.

  1. Omissions (Rule 5.3)

    Omitting words when using quoted language can be tricky. Thus, attorneys should review Rule 5.3. In particular, attorneys should keep in mind that ellipsis should never be used when individual words are merely altered. Moreover, when omitting the end of a sentence, the punctuation at the end of the sentence must still follow the ellipses. This means that when the sentence ends in a period, the attorney will need to insert a total of four periods (e.g., “If land becomes disqualified on or after July 1, it will be assessed as farmland . . . .”).

  2. Introductory signals (Rule 1.3)

    When using more than one signal in a citation string, signals of the same type¾supportive, comparative, contradictory, or background¾must be strung together within a single citation sentence and separated by semicolons. On the other hand, signals of different types must be grouped in different citation sentences. Here’s an example: See Hope Vill., Inc. v. Dep’t of Revenue, 17 OTR 370 (2004); cf. Polk Cnty. v State Dep’t of Revenue, 14 OTR 566 (1999). See generally Gangle v. Dep’t of Revenue, 13 OTR 343 (1995). But see Catherine’s Residence, Inc. v. Dep’t of Revenue, State of Or, 14 OTR 500, 502 (1998).

  3. Signals as verbs (Rule 2.1(d))

    The word “see” should be italicized when it is being used as a signal, but not when it is part of a sentence (e.g., “For further discussion of special assessments, see chapter 57.”)

More next week . . .

30 Years of Legal Editing

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By Cheryl McCord, Legal Publications Attorney Editor

I am a legal editor. For over 30 years, I have edited legal resources used and relied upon by Oregon lawyers. Over the years, I have seen a lot of mind-boggling changes in the editorial process. Frankly, probably because of my advancing age, it’s difficult for me to remember “the way we were.” I will, however, make a feeble attempt to do so.

The Old Days

When I began my career as a legal editor, we paid law students to check the citations in chapters (e.g., running heads for case names) and to alert us to issues that required further analysis. The clerks came to our office to check out chapters (which the authors had sent to us by Pony Express) and then they went to the law library to work on them. They would have to run around the library to get—and put back—multitudes of volumes of reporters, treatises, statutory compilations, and other resources, and then physically turn pages to check an author’s citations. (They had to be physically fit, like firefighters.) Using red ink pens, they made changes and notes on the manuscript pages. After completing a chapter, the clerk returned the manuscript to a legal editor.

The editor then made editorial changes on that same manuscript using a different-colored ink pen (I preferred purple). The editor looked at Oregon cases and statutes while reviewing the legal accuracy of the author’s statements. Inserts and revisions that were too lengthy to interline on the manuscript were hand-written (often illegibly) on separate pieces of paper and attached to the relevant pages. The resulting dog-eared and wrinkled product became a collage of different colors, arrows, doodles (flowers were my specialty), editorial symbols, and materials (including coffee stains, remnants of what the law clerk had for lunch, and other unknown substances—I’m sure the brown smudges were chocolate).

Then our secretary typed the inserts and the messy pages, and used the cut-and-paste method to put the edited manuscript together. This was a very time-consuming (and sloppy) process. We then photocopied this conglomeration to send it to the author, who reviewed our edits and made additional marks on the pages. The chapter was then ready to be sent to an outside typesetter. When the print version was returned to us, we had to proofread the manuscript carefully, line by line. AARRGGHH!!

One thing I’ve learned over the years is that everything is always evolving into something else. Like everything in life, our editorial process has undergone changes that have been so gradual and imperceptible that we didn’t even know they were occurring (such as our hair color—mine is now white; when did THAT happen?).

The Future Is Here

With the invention of personal computers, we began to type our own inserts, but our word-processing specialist had to incorporate the inserts and hand-written editorial changes into the digital version of the chapter. Then, with the advent of online legal resources, we attorney editors enjoyed great access to many different kinds of legal materials and began doing our own cite-checking online. It was amazing—we could sit at our desks and visit many law libraries without having to jump up and down and run down the aisles between bookshelves! We thought that our editorial lives couldn’t get much better than this. But that evolutionary process kept on truckin’.

And then, lo and behold, we discovered digital editing! (Yep, just like Al Gore invented the Internet.) It was miraculous! (Well, okay, I have to admit that I resisted this change. To begin digital editing in MS Word seemed overwhelming—it was so different and revolutionary and there was so much to learn! It’s harder for my old eyes to read words on a computer screen than words on paper. I even questioned my inner being—was I an attorney editor or a word-processing non-specialist? Woe is me.)

The evolution of our editorial process has given life to a better world of editing. I believe that digital editing, coupled with online legal researching by our attorney editors, have improved the quality and accuracy of our publications. We now even have dual computer monitors to enhance the process (one screen for the chapter we’re editing, and one screen for online legal resources).

Digital editing is also a huge benefit to our volunteer authors. The track-changes feature of digital editing in MS Word enables them to readily see where any changes were made to the chapter. (Deletions are noted in boxes in the left-hand margin and additions are marked in red with a double underline.) Rather than destroying trees in order to mail hard copies of edited chapters to authors, we now e-mail chapters to them. Authors seem to appreciate receiving an electronic version of their chapter with tracked changes; it saves them time in reviewing our work.

Some Things Never Change

Although the manner in which I accomplish the finished product has changed over the years, my essential role as a legal editor has remained the same. Editing a legal manuscript involves not only reviewing the substantive accuracy of the author’s work, but also checking the work for spelling, grammar, consistency, and conformity to an in-house style manual. The legal editor is also the person who reviews the chapter from the reader’s perspective, ensuring that the reader will understand what the author has written. An important part of the legal editor’s job is to determine whether the author has left any unanswered questions in the reader’s mind. The editor serves as a link between the authors (who are usually quite knowledgeable about the subject matter) and the readers (who may not be).

As I said before, everything is always evolving into something else. What will attorney editors be like in the future? (I know I’ll be even older.) What if attorney editors evolve into a new species with computer-like brains so that they can do editing and cite-checking in their own minds? At least that would make it easier to work from home.

And/Or

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By Ian Pisarcik, Legal Publications Attorney Editor

Lodged somewhere between income disparity and climate change on the list of greatest threats facing the nation is the use of and/or. I am kidding of course. But on any given afternoon you are likely to encounter one of our editors groping the wall muttering “say what you mean, say what you mean” in response to the unhinged use of this expression. It’s not just persnickety editors that have trouble with the expression¾okay, mostly it is, but the courts don’t like it either! The expression is responsible for two of the most biting lines ever written in an opinion:

[T]hat befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients.

Employers’ Mut. Liab. Ins. Co. of Wisconsin v. Tollefsen, 219 Wis 434, 263 NW 376, 377 (1935).

It is one of those inexcusable barbarisms which were sired by indolence and dammed by indifference, and has no more place in legal terminology than the vernacular of Uncle Remus has in Holy Writ. I am unable to divine how such senseless jargon becomes current. The coiner of it certainly had no appreciation for terse and concise law English.

Cochrane v. Florida E. Coast Ry. Co., 107 Fla 431, 435, 145 So 217 (1932).

The problem isn’t that and/or has no meaning; it does (one or the other or both). The problem is that it is ambiguous at best and flat-out wrong at worst. As Bryan Garner puts it, “about half the time, and/or really means or; about half the time, it means and.” For example, if a sign says “no food or drink allowed,” it certainly doesn’t mean that you can have both.

So how do you avoid this problem? The answer, as the muttering editor will tell you, is to simply say what you mean. If you mean or, say or; if you mean and, say and; if you mean one or the other or both, say just that. For example, the defendant may be charged with unlawful arrest or malicious prosecution, or both.

Otherwise, you will continue to risk the wrath of judges or attorney editors, or both.

Searching for Clues in The Bluebook

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By Ian Pisarcik, Legal Publications Attorney Editor

I recently stumbled across Derrick Muller’s blog post, “Was Barack Obama’s Greatest Contribution to Legal Scholarship the Bluebook?” The post posits the following three facts: (1) Harvard Law Review members generally lead the effort to revise The Bluebook, (2) The fifteenth edition of The Bluebook was released in 1991, and (3) Barack Obama was the president of the Harvard Law Review from 1990 to 1991. The fifteenth edition includes massive revisions (the book expanded from 272 to 366 pages). While it is unclear whether the president’s contributions were negligible or significant, Muller’s blog post managed to spark my interest in the history of this often shuddersome book.

The first edition of The Bluebook was published in 1926 by Erwin Griswold, a second-year law student at Harvard, and consists of 26 pages. There is no index and the book devotes two pages to identifying symbols for hand editing manuscripts. The cover isn’t even blue; it is a dull grayish-brown color reminiscent of efflorescence-riddled concrete or perhaps the mouth of the Willamette River. The first line in the first edition states: “This pamphlet does not pretend to include a complete list of abbreviations or all the necessary data as to form.” The current nineteenth edition, coming in at 511 pages (36 of which make up the index), suggests The Bluebook may have strayed from this original intent.

As for those who wish to look for details in the pages of the fifteenth edition, like patterns in tea leaves, foreshadowing the future path of the president, you may want to start with the fact that South Texas College of Law Professor James Paulson called the fifteenth edition the first manual with a “social conscience.” Paulson noted that the fifteenth edition added a substantial number of citation examples written by women, including titles on topics such as feminism, sexual orientation, reproductive rights, and apartheid. You may want to turn to page 103 and note the newly added and apropos (in light of a recent executive order) citation example: Women’s Bureau, U.S. Dep’t of Labor, Leaflet No. 55, A Working Woman’s Guide to Her Job Rights. Given The Bluebook’s current pace, curious minds will have to employ a team of researchers to find such details if another Harvard law review member is ever elected president of the United States.

* Those who may be interested can find full PDF copies of the first 15 edition of The Bluebook here.