In 2009, Bryan Garner published Garner on Language and Writing, which is a 700-page collection of essays, adaptations, and speeches on legal writing and drafting. Supreme Court Justice Ruth Bader Ginsburg wrote the foreward, and noted that the book “has become a ‘must read’ primer for [her] law clerks.” You can buy the book used online on the cheap, and I recommend that you do so. It should be part of your legal-writing-authority collection.
In Chapter Four, Garner discusses how to become a better drafter of legal documents. In one selection, he lists what he calls the “Dirty Dozen” of words and phrases that should be banned from all legal documents. Below, I list them, and also add one of my own.
1. And/or. Garner asks: Is and/or a word, phrase, or something else? What is clear is that it isn’t part of the English language, and he cites numerous courts that have disapproved of its use (some with colorful language). The main problem is that and/or creates ambiguity, and each side can interpret it in its favor. John Trimble calls and/or an “unwieldy monstrosity.” Garner suggests that you “Kill it.” Take their advice.
2. Deem. Garner says that deem creates a legal fiction, and does not state the truth of the matter. It should never be used. Period.
3. Herein. Over the years, I’ve read many legal documents that contain the word herein. According to Garner, the problem with herein is that courts cannot agree on what it means because of its ambiguity. He advises using in this agreement, in this section, or in this paragraph to replace herein.
4. Know all men by these presents. This phrase is sexist, “deadwood.” It should be cut.
5. Provided that. Garner calls provided that “the bane of legal drafters.” What’s wrong with provided that? Its meaning is unclear, its reach is uncertain, and, perhaps most importantly, it results in unnecessarily long sentences. When you arrive at provided at, Garner advises ending the sentence and starting the next sentence with But.
6. Pursuant to. In the Minnesota Lawyer, I discussed the problem with pursuant to. It’s pure legalese. Garner says that its only defensible use is to show that you are a boring lawyer (he describes a hypothetical cocktail party where a lawyer uses pursuant to in casual conversation). Yet frequently I see pursuant to in briefs and opinions. Just four days ago, for example, the Minnesota Supreme Court used pursuant to in the syllabus of one of its opinions: “Pursuant to the plain language of Minnesota Statutes § 256G.10 (2010) . . . .” And pursuant to pops up in many federal-court decisions, not to mention drafts of letters and briefs written by associates (and, unfortunately, some partners). Use under, as required by, or a variation, but don’t use pursuant to.
7. Said. If you are using said as a substitute for the, you shouldn’t. Garner calls that use “foolish” and “a Marx-brothers parody of law-talk.” But it’s perfectly acceptable to use said if you are using it for the past tense of say.
8. Same. Garner points out that the word same “is the only source of ambiguity in the U.S. Constitution,” which took a constitutional amendment (the 25th) to cure. If the drafters would have used it instead of same, that amendment wouldn’t have been necessary. Using same as a pronoun doesn’t result in precision, it results in ambiguity. Get rid of it.
9. Shall. Garner devotes an entire essay (Handling Words of Authority) to the problems with shall. I won’t get into those weeds here, but there are many problems with its use, namely, because the word can have different meanings even within the same document. In 2005, 7th Circuit Judge Frank Easterbrook called shall a “slippery word” that should be avoided. You too should avoid using it.
10. Such. Another example of legalese. It’s ambiguous. Would you say in conversation: “My friend purchased such bicycle to ride to work?” It does violence to plain English usage, which should be the ultimate goal of all legal writers. Don’t use it.
11. Whereas. Like herein, whereas is another legalism held over from a bygone era. Yet almost every commercial contract I’ve litigated contained so-called Whereas clauses. As a matter of law, Whereas clauses aren’t required. And I can envision a case where a party argues that the clauses are [or are not] a substantive part of the contract. Garner advises using a background or recitals section instead of Whereas clauses. You should too.
12. Witnesseth. According to Garner, this word is “a variant form of Elizabethan usage,” for example, something Shakespeare might use. You aren’t Shakespeare. Don’t ever use witnesseth.
13. Now comes the [party]. I would add one last banned phrase to make a baker’s dozen. In a recent case, I received briefs from Massachusetts attorneys who started their briefs with Now Come the Plaintiffs (in ALL CAPS, of course). After that introduction, the attorneys then said what they were asking the court to do. Unfortunately, their local counsel started using this introductory phrase in briefs in a different case, spreading this virus to Minnesota. Except for this recent example, I’ve never seen this introduction in any briefs written by Minnesota, Pennsylvania, or New Jersey attorneys (the three states in which I’ve practiced). What exactly is the purpose of this phrase? What were the Massachusetts attorneys trying to convey? Did the attorneys think that the phrase made them sound more thunderous and authoritative?
Apparently, not much has changed in Massachusetts since the time John Adams practiced law in Braintree, and I doubt that Adams would have ever used such a ponderous, unnecessary phrase. Regardless of what they do in Massachusetts, please don’t start any briefs with Now Comes the [Party].