Four Usage Fights

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Lawyers love to quibble about everything. But of all the the potential topics to debate, grammar provides the best fodder for the persnickety legal practitioner. Here are four grammar topics certain to energize your next round of office icebreakers.

1. Should I Use a Serial Comma?

Some say we should omit the last comma in a series because it takes up space. For lawyers, however, ambiguity is much scarier than an extra comma.

Every authority that matters in the legal world favors the serial comma: Strunk and White, Wilson Follett, the Chicago Manual of Style, and Bryan Garner’s Dictionary of Modern Legal Usage, just to name a few. The few authorities that disagree are all journalism guides.

Still not convinced? All nine U.S. Supreme Court Justices use the serial comma. Here are three examples:

Justice Breyer: They have no access to newspapers, magazines, or personal photographs.[1]

Justice Souter: The thrust of this evidence was that, based on factual reports, professional observations, and tests, Clark was psychotic at the time in question, with a condition that fell within the category of schizophrenia.[2]

Justice Kennedy: The Court’s tripartite structure is something not addressed by the state trial court, the state appellate court, counsel on either side in those proceedings, or the briefs the parties filed with us.[3]

2. Can I Start a Sentence with However?

Starting sentences with however is grammatically correct. Many good writers avoid doing so, however, because however is heavier than but. In the 2006 Solomon Amendment case, for example, Chief Justice John Roberts uses however six times mid-sentence.

Using a mid-sentence construction also helps to emphasize the contrast:

  • Smith, however, was unable to compensate Jones.
    • Contrast: The placement of however after Smith draws a contrast between Smith, who is unable to compensate Jones, and someone else who had enough money to compensate Jones.
  • Smith was, however, unable to compensate Jones.
    • Contrast: The placement of however after unable draws a contrast between Smith’s desire to compensate Jones and his inability to do so. 

3.  Can I Start a Sentence with And, But, or Yet?

Yes, yes, and yes. Note the following sentences from Hamdan v. Rumsfeld [4]:

Justice Stevens: And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.

Justice Scalia: But they surely gave Congress ample reason to doubt that their application in pending cases would unfold as naturally as the Court glibly assumes.

Justice Alito: Yet the mere statement that a military court is a regularly constituted tribunal is of no help in addressing petitioner’s claim that his commission is not such a tribunal.

One small point: When you start a sentence with and, but, or yet, don’t use a comma. The purpose of these punchy conjunctions is to force the reader into the rest of the sentence. A comma does nothing but stop the flow.

4.  Can I Start a Sentence with Because?

“You shouldn’t start sentences with because.” Really? It’s true that kids are inclined to say, “I want to stay inside. Because it’s raining.” But great adult writers can—and should—start sentences with because to emphasize cause and effect:

Kathleen Sullivan: Because each posting of a work is technically a “copy,” each posting is within the reach of the Copyright Act.[5]

Lawrence Tribe: Because all the undervotes that will be manually counted will be counted under this same standard, there is nothing to [Bush’s] equal protection claim.[6]

Walter Dellinger: Because the team was not afforded funding, equipment, and facilities equivalent to those offered to boys’ teams, petitioner was denied an equal playing field from which to coach.[7]

Justice Ginsberg: Because the deadly weapon Recuenco held was in fact a handgun, the prosecutor might have charged, as an alternative to the deadly weapon enhancement, that at the time of the assault, Recuenco was “armed with a firearm.”[8]

Justice Thomas: Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses.[9]

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