Legal Writing Editor

Recently, I recommended using on instead of upon in your writing because on is the common word, and upon is the formal word that means the same thing:

Using upon or on depends on the context. If you want or need to sound more formal (or, as Follett says, “bookish”) use upon. It also is acceptable to use upon when the sense in which it is used is “on the occasion of” or “when (something) occurs.” . . . Otherwise, use on in all other cases because it will help you achieve a more conversational tone.

Here, I discuss another subtle word choice that, if used correctly, will establish your bona fides as a precise legal writer—the difference between part and portion.

Have you ever read something like the following sentence in a brief? “In 2010, the court found unconstitutional the portion of the [statute/law/rule] that . . . .” The focus here is on the word portion. Is portion used correctly in the sentence? The answer is no. But does it really matter? It does, for the precise legal writer.

Garner’s Modern American Usage correctly points out that “[t]here are connotative differences” between portion and part. Portion generally means “share,” or “an entity cut (or as if cut) away from the whole.” Part, however, means “a constituent piece of the whole.”

Longman Guide to English Usage makes the same distinction: “A portion is a share, such as a helping of food, allotted to someone. A part is a limited quantity taken from a whole, and this is the more general word.”

H.W. Fowler’s A Dictionary of Modern English Usage (First Edition), calls portion a “formal” or “outdoor” word, and that the “indoor” or “common” word part is preferred. Not one to mince words, Fowler calls portion a favorite “piece of buckram.” (Ed: buckram is defined in one sense as a stiffness of manner, or extreme preciseness or formality). Fowler adds: “Few things contribute more to vigour of style than a practical realization that the . . . dominant or proper or vernacular or current names, are better than . . . formal words” like portion.

Substituting the common word part for the formal word portion is consistent with the purpose of this website, namely, to achieve a plainer, more conversational tone in your writing. So you should use part in most contexts.

But as Garner advises above, there are certain contexts where portion is the correct word to use. You wouldn’t say, for example: “I would like a part of the Thanksgiving turkey to take home as leftovers.” You, of course, ordinarily would say: “I would like a portion of the turkey to take home as leftovers.” So don’t necessarily relegate portion to the usage-wastebasket.

As a general rule, then, you should ask yourself the following questions when deciding whether to use portion or part: Am I referring to a portion of food, or some other thing that’s being cut away from the whole? Or am I referring to something that is a constituent piece of something larger, or that comprises a constituent piece of the whole? (part) If you have any doubt, use the default common word part.

But you never should use portion when referring in a brief to part of a statute, rule, law, or case. If you do, it might result in your judge thinking about what’s for dinner, instead of the merits of your client’s case.

(Note: You can access an updated version of this column here).

Except for passive voice, the use of nominalizations (a/k/a buried verbs) is perhaps the best sign of a poor legal writer. Garner calls buried verbs “the sworn enemy of every serious writer” and “an even more serious problem than passive voice” because they “reflect muddy thinking.”

Below, I discuss what nominalizations are, and how to fix them.

Garner’s Modern American Usage defines nominalizations as “verbs that have been changed into nouns.” Garner’s The Winning Brief describes buried verbs in slightly more detail: “A ‘buried verb’ isn’t really a verb at all. It’s a noun created by a verb—the verb has been buried in the longer noun.”

Here are 30 nominalizations taken from Garner’s Legal Writing in Plain English, Garner on Language and Writing, and Garner’s Advanced Legal Writing & Editing seminar textbook, and the action verbs you should replace them with:

1. in violation of — violate
2. provide an illustration of — illustrate
3. undertake the representation of — represent
4. furnish an indemnification to — indemnify
5. in mitigation of — mitigate
6. conduct an examination of — examine
7. make accommodation for — accommodate
8. make provision for — provide for
9. make a contribution — contribute
10. provide a description of — describe
11. submit an application — apply
12. take into consideration — consider
13. in preparation for — to prepare for
14. have a discussion about — discuss
15. conduct an examination of — examine
16. provide responses — respond
17. offer testimony — testify
18. make inquiry — inquire
19. provide assistance — assist
20. place a limitation upon — limit
21. provide protection to — protect
22. reach a resolution — resolve
23. reveal the identity of — identify
24. bring an action against — sue
25. makes mention of — states or says
26. are in compliance with — comply
27. draw a distinction — distinguish
28. made allegations — alleged
29. was in conformity with — conformed
30. to effect settlement — settled

It’s clear that the bolded words above are preferred to the buried-verb phrases that precede them, yet I frequently see these buried-verb phrases in opposing briefs and some opinions.

So why do legal writers use so many nominalizations containing -ion words? The Winning Brief says we can blame Jeremy Bentham:

Why do lawyers like buried verbs so much? It might have to do with Jeremy Bentham, who wrote about what he dubbed the “noun-preferring principle.” Bentham thought that you should always choose a noun over a verb.

But there’s no reason to think that Bentham carried any particular weight on this point: he was probably describing an age-old lawyerly bias. As a group, we’ve historically preferred writing about static things—over people’s actions. And that should tell you something about why so much legal writing is as dull as it is.

History aside, Garner’s Modern American Usage and Garner on Language and Writing say that there are four reasons why you should uncover buried verbs. First, buried verbs are longer and have more syllables than the action verbs they replace. Second, uncovering buried verbs eliminates prepositions in the process. Third, uncovering buried verbs eliminates “be-verbs” by replacing them with action verbs. Fourth, uncovering buried verbs humanizes your prose by saying who does what, which sometimes is obscured by buried verbs. I’ll add a fifth: eliminating nominalizations reduces your brief word-count.

Of course, it’s common for non-lawyers to use nominalizations and related wordy phrases. Take a look at the following example, which is an actual letter from an apartment-management company to its renters:

It is time for our annual garage cleaning. In preparation for our freshen-up, please make sure your parking spaces are empty of any loose items by . . . .

As a reminder, the garage is not intended for storage of any items except for your vehicle. Should you need additional storage, please see the office as we do offer personal storage units.

Any loose items remain [sic] in the garage after . . . will be removed and disposed.

Clearly, this is a poorly written letter. Let’s remove the nominalizations, wordy phrases, and passive voice:

It’s time to clean the garage. To prepare to clean it, you must remove all loose items from your parking space by . . . .

Remember, you may not store any items in your parking space except for your vehicle. If you need additional storage, please contact us about renting a personal-storage unit.

If you don’t remove the loose items from your parking space by . . . , management will throw them away.

This revised letter is shorter, clearer, and therefore better.

The first and third sentences in the revision contain contractions, which, if used sparingly, are perfectly acceptable in legal writing, and even more acceptable in everyday writing. In the second sentence, To prepare to clean it is substituted for the nominalization in preparation for our freshen-up (is freshen-up even a word?). In the third sentence, the active voice you may not store any items in your parking space is substituted for the passive voice/nominalization the garage is not intended for storage of any items. In the fourth sentence, the typo is eliminated and the active voice is again substituted for the passive voice.

In short, nominalizations wreck the clarity and concision of your legal writing. So clear up your muddy thinking, and take a hatchet to buried verbs. If you do, you will see an immediate improvement in your writing.