Grammar and spelling mistakes can be embarrassing and leave clients, colleagues, or the court with the impression that your office isn’t paying attention or doesn’t make work product quality a priority. Most legal professionals do a good job of applying the rules of grammar and spelling, and in fact are expected to possess better than average skills in these areas. That being said, mistakes are still bound to happen. The fast pace of the job, workload, and multiple authors and editors in a document can easily create a setting where errors occur.
Below are some of the most frequent grammatical mistakes made by legal professionals and suggestions for avoiding these errors.
Using the Passive Voice Instead of the Active Voice
Unfortunately, the law is filled with legal opinions rife with passive phrases. In fact, using the passive voice has become so common as to be viewed as the correct way to present legal writing. To be clear, it is not.
The active voice is more concise, fewer words are needed, and emphasizes the doer of the action. It is often more direct and dramatic. The passive voice focuses on the action and may be perceived as more objective when the writer does not want the action directly linked to the subject.
Active Voice Example: “I took the deposition.” (The subject does the action.)
Passive Voice Example: “The deposition was taken by me.” (The subject receives the action.)
Treating Entities as Though They are Persons
A common grammatical error in legal writing is referring to a corporation or similar entity as though it was a person. Corporations and entities are separate from the people who run it. Many times, you will see a legal document referring to an entity as if it has its own free will. For example, “XYZ Corporation had a pattern and practice of discriminating against women.” Technically, that is impossible. XYZ Corporation can’t actually do anything – but its employees can. A better sentence would be, “The managers of XYZ Corporation had a pattern and practice of discriminating against women.”
Also, when referencing the entity itself, remember that it is an “it” and not a “they.” Examples:
(Correct) “XYZ Corporation is located in Illinois. It has been there for 15 years.”
(Incorrect). “XYZ Corporation is located in Illinois. They have been there for 15 years.”
Incorrect Capitalization
When do you capitalize “court?” Always? Never?
The word court is capitalized when naming any court in full (Orange County Superior Court), referring to the U.S. Supreme Court, and referring to the court to which the document will be submitted (i.e., This Court should issue an order . . . ).
Correct:
“This Court has already ruled on Defendant’s Motion to Dismiss.”
“The court of appeals reversed the trial court.”
“The Court of Appeals for the Fifth Circuit affirmed.”
Words that Look and Sound Alike but Have Different Meanings
There are many different words and phrases that sound and look the same but have different meanings. Or they are different forms of the same word, to be used in different settings. Check out the following list of commonly misused words in the legal industry for some quick tricks for remembering when to use one or the other.
#1 Moot vs. Mute
Is the point “moot” or “mute”? Well, it could be both—if the point could actually speak. A moot point is a situation when an issue is not determinative of an outcome. The word “mute” refers to something that’s quiet, unspoken, or refraining from speech or temporarily speechless. Get the point?
#2 Imminent vs. Eminent
Another tricky one. “Eminent” means famous and respected within a particular area or profession, and “imminent” means about to occur. Think I-M-M = “immediate” and “imminent.”
#3 Ensure vs. Insure
To ensure is to make certain or sure of. To insure is to guard against loss and is most frequently used in the sense of “insurance.”
#4 Emigrate vs. Immigrate
Many folks don’t know if they’re coming or going—and that’s the trouble here, as well. The verb “emigrate” is always used in connection with “from,” and “immigrate” is always used with “to.” Think of it as directional… emigrate is to come from somewhere, and to immigrate is to go to somewhere.
#5 Forego vs. Forgo
“Forego” means to precede in place or time or to “come before.” The word “forgo” means to reject or to omit or decline to take (something pleasant or valuable) … to “go without.”
#6 Imply vs. Infer
This one seems to trip people up all the time. A speaker or writer implies something that’s not explicitly communicated, or to strongly suggest the truth or existence of something. But it’s the listener or reader who infers this notion from the communication.
Like “emigrate” and “immigrate” discussed above, it’s a bit directional or based on where you are in the mix. If you’re the speaker, you imply…if you’re the listener, you infer.
#7 Do diligence vs. Due Diligence
Some may think that “do diligence” means doing something diligently, but that’s not the case. “Due diligence” is a legal term that means you’re going to investigate a person or business before entering some sort of business relationship with them. So, with this one, there’s only one way to go, and that’s to perform due diligence. “Do diligence” is not a thing.
#8 Less vs. Fewer
Can you count it? If so, use the word “fewer.” Save the word “less” for uncountable nouns.
#9 Bimonthly vs. Semimonthly
“Bimonthly” means every other month, while “semimonthly” means twice a month. Think of BI = TWO. Bimonthly is two months in duration.
#10 Principle vs. Principal
Here’s a nasty one that can really derail a contract or a legal communication. The word “principle” is a fundamental truth or proposition. A “principal” is a major party in a business transaction. If you haven’t heard of this one, use it now: your PAL is the principal. A principal is a person while a principle is a thing…a rule, a truth, or a doctrine. You got this!
#11 Proscribe vs. Prescribe
Another important one to get right in the legal world. To “proscribe” means to forbid, but the word “prescribe” means to administer, advocate, charge, command, decide, decree, demand, or issue and order.
So how can you remember the difference? How about remembering the ‘o’s: the “o” in proscribe matches for prohibit, taboo, and outlaw, while prescribe is like a prescription… the doctor issues an order for some medicine.
#12 Farther vs. Further
Ok, this one’s a bit nit-picky because you hear and see many attorneys and paralegals using this set of words interchangeably. The grammar police may not issue a citation for getting these wrong, but just so you know, use “farther” when you’re talking about a physical distance and “further” when indicating time or metaphorical distance.
You’re farther down this list of confusing words than you may have realized. However, you can always do further research to make sure your language is correct. We’re really stretching here but FA in farther is like a fathom, a distance of six feet under water. The FU in further can be associated with furtive, which can mean indirect or covert.
#13 Than vs. Then
Use “than” for comparisons and “then” for a chronological sequence. For example, I’d rather use the correct word than look silly. If I look silly, then I will study this list with more effort.
#14 Attain vs. Obtain
You “attain” or achieve a goal, but you “obtain” or acquire an object.
And finally…
#15 Advice vs. Advise
Advise is the act of giving an opinion, suggestion, recommendation, or information. Advice refers to the opinion, suggestion, etc., that is given or received.
Dangling or Orphan Prepositions and Modifiers
In order to understand this one, let’s break it down a bit.
A modifier, as the name suggests, changes something about the sentence.
Prepositions are words usually preceding a noun or pronoun and expressing a relation to another word or element in the clause, as in “the man on the platform,” “she arrived after dinner,” “what did you do it for?” Using a preposition at the end of a sentence in everyday speech is common; however, doing so in legal writing demonstrates poor form and improper usage.
“Dangling” refers to the fact that your modifier or prepositions isn’t attached to anything.
Here’s a sentence with a dangling modifier: “Wanting to win at trial, the jury instructions were given a great deal of effort.” The problem, of course, is that we don’t know who wants to win at trial.
A better sentence that doesn’t leave the modifier dangling would be: “John wanted to win at trial, so he put a great deal of effort into drafting the jury instructions.”
An example of a dangling preposition: “The jury was dismissed and instructed to return to the jury room after.” The dangling preposition here is after. The problem is that the reader has no idea what the jury was dismissed for and therefore cannot determine what “after” is referencing. The better sentence would be: “The jury was dismissed for lunch and instructed to return to the jury room after lunch.”
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Grammar Resources for Legal Professionals:
Brian Garner’s The Redbook: A Manual on Legal Style
California Style Manual
The Bluebook Uniform System of Citation
Additional article source: OneLegal.com
Categorized in: Legal Procedure
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