Monthly Archives: March 2012

Add “punch” to your sentences by avoiding the passive voice!

Today we discuss the passive voice. The use of passive voice—in which the subject of the clause doesn’t perform the action of the verb (“The baseball was thrown by the pitcher” versus “The pitcher threw the baseball”)—is generally discouraged. Passive voice can be identified by a be-verb followed by a past participle (usually a verb ending in –ed), e.g.:

  • is dismissed
  • are followed
  • was reversed
  • were decided

It is also common for a passive-voice sentence to omit the actor altogether, e.g.:

  • Mistakes were made.
  • The deadline was missed.

The problem with the passive voice is that it can create ambiguity about who is doing the acting in a sentence. See State ex rel Click v. Brownhill, 331 Or. 500, 509, 15 P.3d 990 (2000) (Durham, J., concurring) (ambiguity in statute arose because of the use of the phrase “shall not be used”; through use of passive voice, legislature failed to identify who “shall not use”). It also adds unnecessary words and makes it harder for your reader to process the information.

Of course, there are exceptions to every rule. In the following introductory paragraph it was important to quickly communicate the fact that two contracts were at issue in the lawsuit, and that they had both been breached:

Two contracts were breached. The first contract—an Inventory Security Agreement between Finance Corporation and Alpine Homes—Alpine breached when it failed to pay Finance Corp. after selling manufactured homes financed by Finance Corp. The second contract—a Guaranty which obligated Gary Smith (Alpine’s president and sole shareholder) to pay for inventory financed by Fianance Corp. if Alpine did not pay—Smith breached by refusing to pay the amount due to Finance Corp. There is no dispute that these two breaches occurred.

Nevertheless, since the passive voice is a prime source of unclarity, you should avoid using it whenever possible.

That is all for now …

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To use or not to use a serial comma, that is the question for today.

Today we discuss the serial comma (also known as the “Oxford” or “Harvard” comma).  This is another topic that divides Americans—often setting journalists apart from their non-journalist citizens.  This is partly the result of differing opinions between the editors of the AP Stylebook and the editors of the Chicago Manual of Style.  According to the AP Stylebook (which journalists usually follow), the serial comma should not be used; conversely, the Chicago Manual of Style (followed by many non-journalistic writers) advises that the serial comma should be used.  The Scribe follows the practice prescribed by the Chicago Manual of Style, and uses the serial comma in all writings.

So what is a serial comma?  According to Strunk and White, The Elements of Style (4th ed. 2000), a serial comma is a comma used to separate a series of more than two items, e.g.: 

  • The American flag is red, white, and blue.
  • The French flag is blue, white, and red.

Use of a serial comma (i.e., a comma before the conjunction (e.g., “and”)) in a series of more than two items is helpful to your reader because it eliminates the possibility of misreading, e.g.:

  • I went to the prison and met the suspects, the warden and the minister.  [Wrong.]
  • I went to the prison and met the suspects, the warden, and the minister.  [Correct.]

But in general, don’t separate a series of only two items with a comma, regardless of the length of the items, e.g.:

  • Plaintiff contends that the trial court erred when it granted defendants’ motion for summary judgment on her claim for intentional infliction of emotional distress and when it denied her motion to exclude witnesses and reporters.

Nevertheless, and to add a bit of confusion (when is English ever simple?), on rare occasions it may be necessary for clarity to separate even two items in a series with a comma, such as when the items themselves contain multiple elements, e.g.:

  • In support of its motion, Plaid Pantries cited Oregon and Washington cases, and state and federal regulations.

That is all for now …

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Legalese is a speed bump on your legal argument superhighway.

This week we consider legal jargon.  So easy to type, but so annoying to read.  Consider this confounding sentence:  “As hereinafter explained, and pursuant to the infra citations, and the legal analysis embodied therein, Jones is entitled to summary judgment.”  Or consider these puzzling sentences:

  • Comes now defendant in answer to plaintiff’s complaint.
  • In witness whereof, I hereunto set my hand and seal.
  • Further affiant sayeth not.

Say what?

Legal writing guru Bryan Garner (and one of the Scribe’s heroes) advises that “in every state in which judges have been polled, they’ve overwhelmingly said that they’d like lawyers to stop using legalese.”  This has been the Scribe’s experience as well—readers prefer sentences and paragraphs that are uncluttered by legalese.  Why?  Because legalese does nothing to communicate your point; and if language doesn’t actually communicate, then it shouldn’t be used.  It may help to think of legalese as speed bumps on your legal argument superhighway.  It makes for a jarring ride.

Now, that doesn’t mean that you can’t use certain Latin phrases that describe legal concepts—such as quantum meruit and res ipsa loquitur.  But you should let go of phrases such as “matters set forth herein,” “aforementioned,” and “above-referenced cases.”  They just don’t add anything to your writing.

That is all for now …

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Filed under Judge Irritants, Troublesome Words

Squib: in defense of free speech.

The following is a portion of Ninth Circuit Chief Judge Kozinski’s concurring opinion in U.S. v. Alvarez, 638 F.3d 666 (9th Cir. 2011).  It is a wonderfully written defense of free speech (all internal citations have been omitted for readability):

According to our dissenting colleagues, “non-satirical and non-theatrical [ ] knowingly false statements of fact are always unprotected” by the First Amendment. Not “often,” not “sometimes,” but always. Not “if the government has an important interest” nor “if someone’s harmed” nor “if it’s made in public,” but always. “Always” is a deliciously dangerous word, often eaten with a side of crow.
So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying. If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as “I’m working late tonight, hunny,” “I got stuck in traffic” and “I didn’t inhale” could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as “rational basis review.”
What the dissenters seem to forget is that Alvarez was convicted for pure speech. And when it comes to pure speech, truth is not the sine qua non of First Amendment protection. That the government can constitutionally regulate some narrow categories of false speech—such as false advertising, defamation and fraud—doesn’t mean that all such speech falls outside the First Amendment’s bounds. As the Supreme Court has cautioned, “In this field every person must be his own watchman for the truth, because the forefathers did not trust any government to separate the true from the false for us.” Yet the regime the dissenters agitate for today—one that criminalizes pure speech simply because it’s false—leaves wide areas of public discourse to the mercies of the truth police.
Alvarez’s conviction is especially troubling because he is being punished for speaking about himself, the kind of speech that is intimately bound up with a particularly important First Amendment purpose: human self-expression.      * * * Speaking about oneself is precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts or tell tall tales. Self-expression that risks prison if it strays from the monotonous reporting of strictly accurate facts about oneself is no expression at all.
Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).
And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?
Even if untruthful speech were not valuable for its own sake, its protection is clearly required to give breathing room to truthful self-expression, which is unequivocally protected by the First Amendment. Americans tell somewhere between two and fifty lies each day. If all untruthful speech is unprotected, as the dissenters claim, we could all be made into criminals, depending on which lies those making the laws find offensive. And we would have to censor our speech to avoid the risk of prosecution for saying something that turns out to be false. The First Amendment does not tolerate giving the government such power.
* * *
Political and self expression lie at the very heart of the First Amendment. If the First Amendment is to mean anything at all, it must mean that people are free to speak about themselves and their country as they see fit without the heavy hand of government to keep them on the straight and narrow. The Stolen Valor Act was enacted with the noble goal of protecting the highest honors given to the men and women of our military, but the freedoms for which they fight include the freedom of speech. The ability to speak openly about yourself, your beliefs and your country is the hallmark of a free nation. Our decision not to rehear this case en banc ensures the First Amendment will retain its vitality for another day—and, hopefully, for always.

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