Bavan A. Ganwer ————_——— Garner on Language and Writing co Selected Essays and Speeches of Bryan A. Garner With a foreword by Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States " Cagash CAmype Ann “0teE ’QM LIBRARY (MILE END) ‘Ameticin Bar Auction Chicaga (© 2009 American Bar Asian, Alright sesrve, Anerizen Bar Asocition ply stoments The racers contsned hercin represent the ‘pisions and views ofthe author and should not be consaued be che views o opinions fhe nw Sm or companies with whom erhip with, sociated Tegal counsel This book sa any forms and agreement rea ae Intended for edueasonal and informational purpose ony Bryon Carmer wore the statment to rnd: The ays i this volume represent the ‘isws--not tho ofthe American Bar Associaton. Print in the Unied States of Americ. 1211 100908 $4321 Library of Congress Catalogiig-in-Publication Data Carne, Bryan A, ‘Gaenet on langinge and writing: selected eons and speeches of Bryan A Garner / Bryan A. Garner Foreword by Jusice Ruch Bader Ginsburg —Ist ed 1. Law—United SeterLanguage. 2. Lew—Unlted Sates—Terminology 3-Legl compotion. 4, English Inguage—Unge. Tide 250.6375 2008, 808" 06634—e22 2007052268, [Breer ffom peviouly pulsed works are reprinted by permission of the publishers Discounts are asible for books ordezed in bulk. Spe bcs, CLE programs, and other ba-elated organizations. In Publishing. American Bar Asian, 321 N. Ct, Chicago, swnababooks ong See alo wrlawprose ons ‘This book is dedicated to the memory of my grandparents Fleanor Sykes Griffin (1896-1982) whose passion for books and learning—and wh hoays be an inspiati wing hindness— Dorothy Porter Griffin 1902-1985) offices of judges and offal, who opened so many doors to ‘and who generously supported my educ j ‘Meade F Griffin | (1894-1974) | who, asa longtime justice ofthe Supreme Court of Texas, inspired me to pursue law ‘Madge Garner | (1905-1983) whose generosity made it posible for me, as an undergraduate, | to study literate or wo summers at Oxford Univer, | ‘where I made enduring rendships Benjamin Franklin Garner | (1994-1977) | hose wry wit, sardonic humo, and intense interes } that language can be both absorbing and e| | 2@ CHAPTER FIVE English Grammar and Usage Tending to Your Snootitude COvan BREAKEAST ONE DAY, Justice Antonin Scalia declared that he Cres 2 great deal about language—about words and their proper se. “There's 1 Blond for people like me. An essayist in Harpers coined it ve couldn’ remember the word. So I ventured to belp him" SNOOT?” “That's i!” “The Harper’ exay was by the renowned novelist David Foster Wace, form in a new anthology of Wallace’ 5 what Wallace says about SNOOTS: reviewer's nuclear family’ nick fanatic, the sort of person whose mustakes in the very prose of Safire’ ‘New York Times) Tis reviewer’ fam om an in The NOOT, which term itvelf der eal family joke being t gefihl Necesiates Our Ongoing Ten- te Our Time” depended on whether or {SNOOTS are just about the last remaining kind of traly fines the breed as people who know what dys- ‘mind leting you know: ‘pherniom means and don’t ‘Adapted fom Sauder "David Foster Walla 5 (2005). yer (Nov. 2006) sr ig and raercan Usage” in Consider te Lote 65.69| ana CHAPTER FIVE ‘As you might imagine, Justice Scalia isn't the only SNOOT on the US. Supreme Court, I'd venture to say that more than half the justices are SNOOTs, Justice Ruth Bader Ginsburg is certainly one: she is fas- tidious about the words in her opinions. And so is Chief Justice John Roberts, who is famously persnickecy about restrictive thats and nonre~ strictive whiches. Is snootitude a good thi OF course, some peop! Jjust as some people think they're good poker players, bowle pianists even when the ficts shout otherwise. The distinguishing characteristic is that SNOOTS know their En- lish usage—and they own books with usage in the tile. According to Jane Casagrande, author of Grammar Snobs Are Great Big Meanie: (2006), usage guides are “one of the biggest secrets of the language-siwvy ‘These books are the one secret chose grammar fat cats don't want you to know because anyone who has one on his desk can handle almost any language situation.” Despite her title, by the way, Casagrande is a true SNOOT. So SNOOTS know usage, and non-SNOOTs don’. ‘Are you a SNOOT? Let’ find out, Take the following quiz, being not to peek at the answers until you're finshed. If you find out fow're a member of the SNOOT club, congratulations: its = big part of being a good writer, chough it not everything. If you're not a member of the club, dont fee too much. Do some studying and reapply! 1. IE someone's name is Betry Flowers and she's married, are she and her family (2) the Flowers, or (b) the Flowerses? armistice chat ended World War I (a) an toric event? Wis the signing historic, oF (b) Is it better to go (4) tl 4:00 pam. oF til 4:00 pm2 ‘When speaking of various finds, granted you can use the col- Tective term money. Buc if you'e going to use a plural form—as is permissible—is it better to write (a) moneys, or (b) monies? 5. If you'te quitting a jab, do you give (@) two weeks notice, or (b) ‘wo weeks’ notice? Ifyou honing in on a problem, are you (a) homing orb) LENGLISH GRAMMAR. AND USAGE 213 7. If ewo people both call someone else a friend, do they have (a) a ‘mutual friend, or (b) 2 fiend in common? ic better form to write (a) high-school friend, common-law le, and collective-bargaining agreement, or (b) high school | common lw rule, and collective bargaining agreement? 9, "Which is the better spelling: (2) adviser, or (b) advisor? 410. Which statement is more Good writers don’t begin sentences with conjunctions such as and or but. (3) Good writers typically begin a fair percentage of their sentences with conjunctions. i Answer Key AUS = Copperud, American Usage and Style (1980) CMS = The Chicago Manual of Style (15th ed. 2003) DM = Bernstein, Dos, Don's, and Maybes of English Us DMLU = Garner, A ant of Modern Legal Usage (2d ed. 1995) GMAU = Gamer Modern American Usage (20 ed. 2003) KE = Amis, The King’s English (1997) MEU = Fowler, A Disionary of Mader English Usage (Ernest Gowers ced, 2d ed, 1965) MTH = Bernstein, Miss Thistlebottom’s Hobgoblin ( ‘Redbook = Garner, The Redbook: A Manual on Legal UA = Partridge, Usage and Abusage (rev. ed. 1973) ds in a sibilant forms the plural by 1.) A proper name t Boal formed by adding “es”: “Such plurals are offen exroncot ‘adding an apostrophe, which indicates pe 294. See also CMS at 279-80; DMLU at 670; GMAU at 6175, Redbook 2t 107, 2. (b) The choice is a simple one: “If you pronounce ‘historic’ as r nad better say ahi yo hi (S at 197; DMLU at 3; GMAU {EU at 1; Redbook at ‘not a contraction of until, though both date fom the century: “While the subject of until is before the house, ‘word meaning the superfluous and ‘the contraction ‘unrecognized in good usage” MTH at 83. See also AUS at 383, CMS at 230; DDM at 229; DMLU at 882; GMAU at5.0) 6.(@) 7.06) 8.(a) 10.6 yMLU at 571. See also CMS ‘The posessive form is idiomatic but often mishandled: “This usage was dealt a real setback in 2002 with the release of the hit movie Two Weeks Notice [read Too Weeks’ Notice, starring Hugh Grant and Sandra Bullock. It might have been a bigger hit if che good-usage crowd hadn't boycotted the movie on principle.” GMAU at 626. See also CMS at 284; DDM at 171; DMLU at 674; MEU at 467; MTH at 105; Redbook at 144-85, Sharp thinkers know that hone doesn’ tury, the metaphor referred to what homing pigeons do; by the early 20th century, it referred also to what aircraft and missles do.” GMAU at 410. See also CMS at 217-18; Redbook 4. The distinction is not commonly understood: well-known trap. The estence of its meaning ist the relation x is or does to as y to x, and not the relation » is ‘or does to 2 as y to 2. From this Jones (oneaning Jones who is your friend as well as mine), and all similar phrases are misuses of muual. In such places, common ecrays ignorance of 256. Don't trip up your readers: “While some phrasal adjectives ray be clear to the writer and to most readers, the absence of hyphens will always cause some readers to misstep midway through the sentence. The beter practice is to hyphenate.” Redbook at 38-41. See also AUS at 188; CMS at 171; DMLU 657-58; MAU at 604-07; MEU at 256-57. sychics tend to prefer advisor. But: “The -er spelling is sanc- xtence-sarters: “And fat and must not begin a sentence ... is an empty ‘goes for but, Indeed either word can super give unimprovably eaely warning of the sort of thing that is to follow!” KE at 13-14. See also CMS at 193-94; DMLU at $5, 123-24, 856; GMAU at 44, 118-19; MEU at 29, ENGLISH GRAMMAR AND USAGE ars ye te 28 The Word on the Street ‘Tun REPUupLtcaN PLATFORM OF 1936 accused President Franklin D. Roosevelt of flaunting” the United States Supreme Court with his court- packing plan. After the platform was published, a minor debate ensued— Fot about the rightness of Roosevelt position (that was the major debate), bat about whether the Republicans bad misused flaunt ("to show off costentatiously”) for flout (“to contravene, disregard, or treat with con- tempt”). The struggle to keep these words separate continues to this day “That's usefal information for lawyers and judges, who, after all, may rightly be classed as professional writers. Since we text, we ought to be judged by the highest standards; and for our writ dards, it must reflect a knowledgeable use of the a given piece of ing, But if we blur distinctions out of ignorance 2 another. p our vocabularies haphazardly, picking up a word Most of here jn reading and there in someone elses speech. So we often gain coly indistinct notions about what certain words mean. Unfortanately English words offen suggest meanings quite different fom their actual ‘meanings, and writers are fequently thrown off. Occasionally, what began as an error—sey the use of ingenuity asthe nown ingenious rather than to ingenuous—must be accepted lish usage are waged by those who care about ind abuses, words gradually build up reputs- ‘well known for its mischievous encroach- ple, ‘ment on the domain of flout. ‘Similar pairs of words abound in the language. Fortutous properly ‘means “occurring merely by chance,” though it is increasingly misused as fit were another word for fornunate. Property, a disaster may be ju fornaitous as a windfall. Enon ir siblings can cause crou~ quite full”? The seate the United States Supreme appellate judge who recently refer ‘Adipted fiom ABA Jounal (Dec 1988),216 CHAPTER FIVE Courts “fulsome” requirements for a public figure to prove defamation did not intend to defarne the Supreme Court. Bi ld have known sulting, not laudatory. points of usage are for the most part old and settled. Most of the troublesome words in our language have gained notoriery, so it is easy for the legal writer to become familiar with these words and handle them accordingly Bad Raps OF course, il repute is sometimes ill-deserved. The split infinitive abomination—one need merely know when to properly use it. re tions are not bad words to end sentences with. And it often serves ‘writer well to begin a sentence with and or but. Undeserved reputations times persist despite the concerted efforts of authorities on English usage to eradicate them. ‘Professional writers are obliged to know these things many lawyers do not know them, apparently forgetting damentally a profession of writers. Our success or fail ‘on how adept we are at getting ideas act convincingly Just as fine carpenters must keep their tools sharp and well oiled, s must cultivate their knowledge of the English language and its niceties. The language gives us an unparalleled word-hoard with which rk. English words have a rich literary history, and over the cen- hhave developed nuances that can never be entirely mastered, Yee ‘we must try ‘As a living language, English is constantly evolving because of how people like you and me use it, Whether or not we can say that the con fusion of flawnt with flout, or of enormity with enormousness, causes the Tanguage to deteriorate, we know beyond question that there are better and worse uses of language in any given context.To the exten align ourselves with the better uses of language—by opposing slipshod and by striving for aptness, accuracy, concision, and ever gance—wve engure a sounder legacy for those who will follow us. In the ‘meantime, we safeguard our own reputations; for the ill repute of a mis used word often rubs off fulsomely on its user. writing, and ENGLISH GRAMMAR AND USAGE 207 eee Testing Your Command of Grammar and Usage Ts Mv WRITING SEMINARS FOR LAWYERS, I often ask them whether they {eel confident they know what the pasive voice is will say they do. Thea I'l offer them a pop quiz co Sentences and ask chem whether there’ a pasive-voice ver in either one Guess what happens. About 80% flunk. They will have assumed that the passive voice consists of any be-verb (specially i, are, was, ot were). Only about 20% of them will know the two esental element of passive voice: be-verb and a past participle (e.g, ws dismissed or wer filed). ‘Once when T gave this quiz ata law firm in New York, several for- cign lawyers were present—people who grew up in France, italy, and Chile. They were astounded by their American colleagues’ grammatical jgnorance. One French lawyer, who breezed through the quiz, asured me that every thint-grader in France knows what the pasive voice i Hyperbole, peshaps, but its no exaggeration to say that every legal writer should now what itis. As a writer or editor, how can you correct what youre ignorant of? Tearning grammar may seem like an exercise in pedantry. Who cares if you can tel whether which or tha is the better pronoun in a particu- lar sentence? Who cares if you caa distinguish the present-perfect vense fiom the pluperfect, or the nominative case Gom the objective case? "My answer is fourfold. (1) Many if not most people grow up speak ing 2 form of regional or social dialect. If you raise your comfort level ‘with grammar, you'll hive more confidence that your speaking and wait ing won't bemay you among your more literate peers. (2) Many people ‘who are confident that they know grammatical rules are dead wrong they've been fed misinformation about English grammar, and their writ- ing safes. 3) Once you have a ue command of language, you can focus sore on What youte trying to say than on how you're going to say it, so ‘the substance of your message will be’ more satisfying. (4) Whether we know it or not—whether we like it or not—people judge us by how we ‘wield words; when you manage your words skllflly, you have fac greater opportunities in law and in any other profesional realm. That’ the tality T concede that some drudgery is involved in learning grammar, specially if you carry bad memories of it fom high school. Bue it isnt “Adapted froma Sudo Laver (Feb 2002 & Jn. 2005).a8 CHAPTER FIVE nearly as bad as many féar, especially when you're convinced truly useful to know. And in my experience, its best when self-tay partly because its hard to find a good course on the subject. My favorite book for the grammatical novice is Norman Lewis’ 30 Days to Better B ennially in print). At under $10, its a bargain. ough good editing depends on much more than just detecting and avoiding errors, it cersainly does require those chings. Otherwise, your credibility plummets. And of all che errors that plague legal writing, incorrect word choices and grammatical blunders must rank pretty high, ‘Words are the only tools that lawyers have. Just asa skilled carpenter ‘wouldn't drive a nail with a screwdei fortuitous when they mean fort “the right words in the rig! places can be « tremenc Of course, we're all prone to verbal sips. The only antidote is con- ago, “I doubt if the lifelong vagueness of most people about their words cr usefully be cured” Here, though, we'e talking st people,” but about lawyers (or aspising lawyer). And we're talking not about speech, but about the written word—which invokes a higher standard of care. Consider some word-choice errors in law reviews. In each passage quoted below, law-review author (unnamed) and editorial board (named) allowed the wrong word to surfice in print. Embarrassing, you sxy? Per- hnaps. Yer the intent is not to humiliate; its to point up how easily these wuman, but 50 is t0 learn fom embarrasments can happen. To & those errors In taking this lite quiz, you'll be testing yourself against law-review bad days. Just choose (2) or (b) within each reining, or (b) reigning] in the publics infor- government’ secrecy hat other significant fornia Law Review) tional Law Journal) 3. ENGLISH GRAMMAR AND USAGE 219 “indeterminacy in patent-law cases is expected to increase Decause it is expected that the Federal Circuits caseload will [(@) unrelentingly, or (b) untelentlessy] rise” (UCLA Journal of Law and Technology) “Te is this necessity into partnership wit nia Journal of Constitutional Law) “Mis, Haley argued chat che agreement between Tniverity Law Journal) “Much of the increase [(a) inures, or (b) inheres] to the benefit of attorieys.” (Georgetown Journal of Legal Eth “Six additional soldiers were tried, convicted, and {(a) hanged, or ‘murder and mutiny before their appeal could be & Mary Bill of Rights Journal) “Tennessee's rationale for continuing the discriminatory practice ‘was [(a) therefor, or (b) therefore] ‘unfounded: ” (Cumberiand Law Review) “Today America is in the ((a) throes, or (b) throws] of an iden- tity crisis with respect to consumer credit.” (Florida Law Review) “Updated in November 2000, Bounds of Advecary provides guid- ance to lawyers practicing family law. [(a) Its, or (b) Its) purpose is to assist family lawyers when dealing with moral and ethical problems. “While Rule 9(b) and the Reform Act, of necessity, tend to Tengthen a {(a) well-plead, or (b) well-pleaded] complaint, they do not give license to violate Rule 8.” (UC. Davis Lav Review) “(@) Regretably, or (b) Regretfally], most interrogation training ‘manuals ... give no thought to how the methods they advocate communicate psychologically coercive mestages and sometimes lead the innocent to confess.” (North Carolina Law Revi [Bly taking the opportunity for ary will... be placed in a position cal] to his duties to the corporation! Jourts are not permitted to ‘rehabilit spective, or (b) prospective] juror (Georgia Law Review) but only to clar-220 CHAPTER FIVE those whose population had either F (b) stationary] or increased at a rate (New England Law Review) veri, or (b) venal] sin. Who among us (especially as beginning Ihas not used staw person or two to motivate our analysis?” (Wisconsin Law Review) 18, [T]he United States found itself receiving [(a) flak, or (6) Hack] from several countries for more than just is failure to submit an coffer” (Tidane Maritime Law Journal) 419. “(T]he Eleventh Circuit Court of Appeals found that flying che Confederate flag above the Alabama [(@) capitol, or (b) capital] servitude’... nor a violation of Duilding was neither a ‘ba the Equal Protection Clause” (Timple Lav Review) 20, “[T]he costs may be greater and [(a) less, or (b) fewer] people may benefit” (Florida State Univesity Law Review) Ihe federal goverament sought to acquire vas tracks] of land through donation fiom its fo be relevant!" (Colum 23. “[T]o go any further—to expand the scope of takings lability to the point of presenting governments with a [(2) Hobbesizn, or (&) Hobson’) choice—would interfere profoundly with those governments’ ability to promote the public welfare” (Hanand Environmental Law Review) ‘even for many people who are trained in philosophy” (University of Chicago Law Review) ENGLISH GRAMMAR AND USAGE aa Scoring Guide 13-17 correct: Fair. 412 correct: Poor. 22-25 correct: Superb. 18-21 correct: Good. CMS = The Chicago Manual of Style (15th ed. 2003) DMLU = Garner, A Dictionary of Modern Legal Usage (2d ed. 1995) ‘Redbook = Garner, The Redbook: A Manual on TLR Mansal = Texas Law Review Maral on Style, Usage, and Editing (8th ed. 2002) Key to Correct Answers 1. Reining (2) DMLU at 748; Redbook at 266. 2. (CMS at 215; DMLU at 362; Redbook at 241 3 (). See any general dictionary. 4, Thrust (b). See any general dictionary, 5 6 7. 8. ). CMS at 230; DMLU at 878-79; Redbook at 274. 9. See any general dictionary. 10. {S at 220; DMLU at 475; Redbook at 111, 251 11. Wellpleaded (b). CMS at 226; DMLU at 667; Redbook at 262; TLR Menual a 67. 12, Regrettably (2). CMS at 227; DMLU at 748; Redbook at 266. 13. Inimical (b). DMLU at 447; any general dictionary. 14. Prospective (b). See any general dictionary. 15. Preipitously (a). CMS at 226; DMLU at 681; Redbook at 263, 16 ry (b). CMS at 229; DMLU at 828; Redbook at 271 47, (a). CMS at 231; DMLU at 908-09; Redbook at 276. 18 DMLU at 361; any gen 19, |. CMS at 204; DMLU 6, 21. Tracts (a). DMLU at 886-87; any general dictionary. 22, Doubtless (Q). CMS at 211; DMLU at 295-96; Redbook at 235. +404; Redbook at 234. 934; Redbook at 11, 278, 23. Hobson’ (b). DMLU 24. Whose (2). CMS at 232; DMLU 25. All right (b). CMS at 199; DMLU