March 2003
Top 10 Writing Errors for Law Students (and Lawyers) to Improve Upon in 2003
By Robert C. Cumbow
Along with journalists and legislators, lawyers are a breed of professionals whose success depends upon the effective and persuasive use of language. Subtle but important qualities and distinctions in English words, phraseology and usage enable us to wield our rich language with precision and power. And, of course, it behooves us to do so, since proprieties that don't make a lot of difference in everyday conversation can have critical impact in legal and legislative matters, where more precision is required and there is a great deal more at stake. It's thus with surprise and some alarm that I note a widespread and growing inability — or at least unwillingness — among law students and lawyers to grasp and control some of the most fundamental principles of the grammar and usage of their own language, the most precious tool of their chosen profession. Though not necessarily the worst mistakes, the following "top 10" are the ones I've observed most frequently in the exams and papers of second- and third-year law students, and even in the correspondence and briefs of practicing lawyers. Whether these errors are due to ignorance or carelessness, lawyers must recognize them and strive to eliminate them from their prose if they wish to be taken seriously and to serve their clients well. Pointing them out here seems as good a way as any of setting errant lawyers and students on that task.
Using "s" and the apostrophe. For all the honor given to Strunk and White's The Elements of Style in secondary schools, higher education, and legal writing programs in law school and CLEs, the book's most fundamental principles are still too frequently ignored. Rule 1 of that book deals with the use of the apostrophe and the letter "s" in forming the possessive form of singular nouns. With very few exceptions, a singular noun — whether it ends in "s" or not — forms its possessive by adding an apostrophe followed by an "s." If the book belongs to Marie, it is Marie's book; if it belongs to Charles, it is Charles's book, not "Charles' book."
But if that fairly simple precept eludes even people bright enough to get into law school, it is no wonder that there is an increasing use of this simple device to form not a possessive but an ordinary garden-variety plural. If the store is closed every Sunday, it is closed Sundays, not "closed Sunday's." A family named Smith should put "the Smiths" on the mailbox, not "the Smith's" — though "the Smiths'" might be perfectly acceptable, since what is meant is "the Smiths' house." The plural of CLE is CLEs, not "CLE's," and the past decade was the '90s, not "the 90's."
Indeed, this last point suggests why some writers get confused about the apostrophe-s and Strunk and White's Rule 1. It's easy enough to recall that you form a singular possessive by adding an apostrophe-s and a plural (of most nouns) simply by adding "s." But when the two are combined in a plural possessive, it gets trickier. If a plural noun does not end in "s," you form its possessive in the normal way, by adding apostrophe-s: "the children's hour." But if the plural noun does end in "s," the possessive is formed by adding only an apostrophe: "the wolves' howling."
Another factor contributing to the growing misunderstanding of the use of the apostrophe-s is the fact that the apostrophe has another purpose besides indicating a possessive. It also is used to indicate the omission of one or more letters. "Can't" is a shortened form of "cannot," in which the apostrophe is used to show that two letters have been excised. The usage "the '90s," in the previous paragraph, uses an initial apostrophe to show the deletion of "19." Now we have two uses of the apostrophe to worry about; but we can generally tell them apart from context: "Natalie's driving us to the movie" uses the apostrophe to show the excision of the letter "i" from the phrase "Natalie is driving," while "We're going to the movie in Natalie's car" uses the apostrophe to denote the simple possessive.
All well and good, but what do we do with a word that may sometimes be a possessive and other times a contraction, and is not so easy to distinguish in context? The troublesome word in this case is the pronoun "it." It's an exception to the rule of forming a possessive by adding apostrophe-s. That's because it's a pronoun, not a noun, and pronouns have their own ready-made, non-apostrophe possessives. The possessive form of "he" is "his," of "she" is "her," and of "it" is "its." Thus, when you see the construction "it's" (as you have twice in this paragraph), its apostrophe tells you that it is not a possessive but a contraction for "it is."
Keeping these simple rules straight doesn't involve nearly as much work as writing (or reading) the past five paragraphs. Form the possessive of a singular noun by adding apostrophe-s. Form the possessive of a plural noun ending in "s" by adding an apostrophe only. Form the possessive of a plural noun not ending in "s" by adding an apostrophe-s.
A hyphen is not a dash. One thing that makes a person's writing particularly hard on a reader's eye is the use of a hyphen instead of a dash. This is a hyphen: -. This is a dash: —. You can make a dash by hitting the hyphen key twice, or by inserting an "em-dash" from the "insert>symbol" or "insert>character" menu of most word-processing applications. Or, if you are really sophisticated, you can set up the "auto-correct" feature of your word processor to automatically replace two hyphens with a dash. (There are actually two types of dashes — an em-dash and an en-dash — each with its own appropriate usage, but we'll save that for another time.)
A hyphen is used to combine two or more words into a single unit for better understanding or to avoid ambiguity (examples: "recover" vs. "re-cover"; "unionized" vs. "un-ionized"). It is also used as a part of alphanumerical designations, such as phone numbers and apartment numbers (555-1212; Apartment 2-B). And, of course, it is used to signal that a word has been broken at the end of a line and continues on the next — though that has little importance today except to publishers, since computer users can now set their word-processing software to hyphenate automatically or not at all.
The dash, on the other hand, is not used to separate or join individual words, but to set off an entire phrase — a parenthetical thought — from the rest of the sentence. See how much harder that last sentence is to read if hyphens are used instead of dashes: The dash, on the other hand, is not used to separate or join individual words, but to set off an entire phrase-a parenthetical thought-from the rest of the sentence. Take pity on your reader, and don't use hyphens for dashes.
Punctuation with "however." Don't use a comma both before and after the word "however," since it will make your sentence unclear and difficult to read. One comma is o.k.; however, I find a semicolon to be easiest on the eye. If you use a comma, put it before or after the word "however," depending upon which part of your sentence the "however" pertains to. Compare:
here was more to say; however, I just refused to say it. There was more to say, however; I just refused to say it.
Plurals from the ancient world. English contains a lot of words that have come to us directly from Latin or Greek. Some of these we now pluralize by adding an "s"; but many of them still form their plurals as they did in their original languages. You don't have to have studied Latin or Greek to learn and remember the following:
"Data" is the plural of "datum." We never use "datum" anymore, but that doesn't give us the right to treat "data" as if it were singular. Say "these data," not "that data." You wouldn't say, "I need a data," so don't say "The data is missing." It should be "data are missing."
"Media" is the plural of "medium," which we do still use. When you talk about the media, as in "the entertainment media" or "the news media," you are talking about several different entities, so use a plural verb. "The media don't report judicial opinions accurately," not "The media doesn't report judicial opinions accurately."
"Criteria" is the plural of "criterion." Don't use it as a singular. It's common to hear someone say "this criteria" or "that is the criteria." That's wrong. If you're talking about a single standard, say, "This is the criterion." If you mean several standards, then it's "These are the criteria."
Same rule with regard to "phenomena," which is the plural of "phenomenon." It's common to hear people get these exactly backward, saying "this phenomena" and "these phenomenon." Don't be caught doing that.
Of even greater urgency to lawyers — though only to lawyers — is the word "dicta," which is plural for "dictum." Say "in dicta" or "in a dictum," but don't say "in dictum."
Before leaving this subject, here is one word that is actually singular, though because it ends in "s," many English speakers make the mistake of assuming it is plural: kudos, which is Greek for praise. You wouldn't say "here are praise for my paralegal," so don't say "here are kudos," either. Harden the "s" at the end and use the word in the singular.
Begging the question. As long as I've just brought up words that have special significance to lawyers, this is as good a time as any to remind readers what "begging the question" means. It does not mean "calls into question" or "brings up the question." You often hear well-educated lawyers say something like: "The reliance of the definition of obscenity on community standards begs the question, 'Which community?'" That is not a correct use of the term "begs the question." Begging the question is the name of one of the many incorrect uses of logical argument known as fallacies. The fallacy of begging the question occurs when someone tries to prove a point by making an argument that assumes the very thing he is trying to prove. A very simple example is the person who claims he could not possibly have committed the wrong he is accused of for the simple reason that he is not the sort of person who would do that kind of thing. That, of course, is exactly what his accusers are trying to establish, so in using it as the basis for his argument, the accused is begging the question. Don't say "begs the question" when all you mean is that a certain thought raises a question.
Lead and led. Lead, as a verb meaning to guide or to show the way, is pronounced "leed." Its past tense, pronounced "led," is spelled led, not lead. "Lead" is pronounced "led" only when used as a noun, to identify a heavy metal. Similarly, the past tense of plead is pled or pleaded, not "plead."
Verbal agreements. Another thing an alarming number of lawyers get wrong is to use the term "verbal agreement" when they mean "oral agreement" or "vocal agreement." The word "verbal" means "in words." Thus written agreements are just as much "verbal agreements" as oral agreements are. If it was spoken rather than written down, it was an oral or vocal agreement.
De minimis. This one is simple. Just spell it right. It is not spelled "de minimus." There's no such thing as "in memorium," either. It's "in memoriam."
Loath. The word "loath" is an archaism that is coming back into popularity, for reasons unknown. It's an adjective meaning "reluctant" or "hesitant." I was loath to bring up a difficult subject during dinner. This one is simple, too. Just spell it right. It's "loath." Don't confuse it with "loathe," which is a verb meaning to hate.
Number agreement. A pronoun must agree in number with its antecedent — that is, the noun to which it refers. In the sentence "Lawyers should take good care of their language skills," the word "their" is plural because the word "lawyers" is plural. The sentence would make no sense if it read "Lawyers should take good care of his language skills." Similarly, the sentence "Every lawyer should take good care of their language skills" makes no sense, though we see and hear such constructions all the time, largely due to tortured efforts to avoid the out-of-favor but perfectly correct use of "his" as a non-gender-specific pronoun supporting an indefinite antecedent.
A statement like "Every student must hand in his paper on time," though correct, runs the risk of offending those who believe (wrongly) that such a statement assumes all students are male. It's always a good idea to avoid giving offense, of course; but you don't do that by substituting the plural pronoun "their." The singular "student" can't magically become a multiple "they" just four words later. Nowadays it's popular — and correct — to be egalitarian and use "his" sometimes and "her" other times. But the best way to avoid the problem is to recast the sentence in the plural: "Students must hand in their papers on time." Just remember: singular antecedent nouns can't take plural pronouns.
Some, though not all, of the above common mistakes are often not conscious errors at all, but are simple typographical errors or the result of carelessness. We have a remedy for that. It's called proofreading. Carefully reread your own paper, exam, article or brief for form, grammar, spelling and typos. Do it yourself. Don't rely on spell checkers and grammar checkers. They aren't as smart as you are.
A former chair of the WSBA Editorial Advisory Board, Robert C. Cumbow is a shareholder with Graham & Dunn in Seattle, where he practices trademark, copyright, advertising and media law for clients in the beverage, food, communications and entertainment industries. He is an adjunct professor of law at Seattle University School of Law, and has written extensively on law, film, food and language.
