Comma chameleon

Writers and editors often struggle over whether to insert or delete a comma. Often the choice depends, not on rules, but on what you are trying to say. For example, tonight on a social medium, I shared a post about my favorite candidate’s use of social media to get his message across. I came up with two lead-in sentences for the post, both of which are grammatically correct, but each of which conveys a different meaning:

  1. So here I am doing my part.
  2. So here I am, doing my part.

See the difference? Both are grammatically correct. The comma alters the structure of the sentence, changing its meaning. A thoughtless editor might remove the comma from # 2. That would alter the substance of what the writer was trying to say.

“And/or” in jury instructions leads to reversal of conviction

Here’s something you don’t see every day: a defendant convicted of robbery and aggravated assault wins his appeal because the trial court, in instructing the jury, repeatedly used the phrase and/or to describe the elements of the crimes. State v. Gonzalez, No. A-0768-13T2 (N.J. App. Div. Jan. 25, 2016). Even more remarkable: the defendant failed to object at trial to the use of and/or in the jury instructions. Nevertheless, the appellate court reversed, finding the jury instructions so unclear that the defendant was denied a fair trial:

[N]ot even the most generous and forgiving harmless-error philosophy can save this verdict. The instructions were inherently ambiguous because the judge failed to explain in clear English what the jurors were required to decide and, as a result, generated numerous ways in which the jury could have convicted without a shared vision of what defendant did, [citations omitted], or convicted defendant on some charges without finding all the elements were proven beyond a reasonable doubt. [Slip op. at 20.]

Pages 9–11 of the opinion contain a long paragraph full of citations to cases lambasting and/or. Among the descriptions of phrase (with citations) are these gems:

  • an expression that "has never been accredited in this state as good pleading or proper to form part of a judgment of record ....”
  • a “verbal monstrosiity, neither word nor phrase”
  • an “inexcusable barbarism[ ] ... sired by indolence”
  • a “mongrel expression ... an equivocal connective, being neither positively conjunctive nor positively disjunctive”
  • an “abominable invention”

“No forms for you,” say revised Fed. Rules of Civil Procedure

When the Federal Rules of Civil Procedure were first promulgated in 1937, they came with an appendix of forms. According to Rule 84, “The forms in the Appendix suffice[d] under these rules and illustrate[d] the simplicity and brevity that these rules contemplate.”

You may notice the alterations to past tense in the quotation of Rule 84. As of December 1 of this year, Rule 84 is abrogated, and the official appendix of forms is no more. Why this change? The Advisory Committee Notes for the 2015 Amendment explain:

Rule 84 was adopted when the Civil Rules were established in 1938 “to indicate, subject to the provisions of these rules, the simplicity and brevity of statement which the rules contemplate.” The purpose of providing illustrations for the rules, although useful when the rules were adopted, has been fulfilled. Accordingly, recognizing that there are many excellent alternative sources for forms, including the website of the Administrative Office of the United States Courts, the websites of many district courts, and local law libraries that contain many commercially published forms, Rule 84 and the Appendix of Forms are no longer necessary and have been abrogated. The abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.

“The Art of Readable Writing”—for free

Here is an interesting old book that’s available online for free reading: The Art of Readable Writing (© 1949 by Rudolf Flesch). You may recognize Flesch’s name from those readability algorithms you’ve encountered, like the one built into Word. So far I’ve just read part of the first chapter—the part where Flesch says that Aristotle was wrong (or at least wrong about English). Anyone who writes expository prose should at least be acquainted with Flesch’s work. (Hat tip to Cheryl Stephens.)

What’s in a (trademark) name?

Here at T(N)LW, we try to cover all aspects of legal writing. And of course, we love good legal research. With those thoughts in mind (and with an offensive-language warning),  here is the brief filed by the Washington Redskins in the team’s appeal of an order cancelling its trademarks. The brief, filed by Quinn Emanuel and Arnold & Porter, makes the point that the Redskins’ trademark is no more offensive than some other trademarks that have not been cancelled. The results of the legal research on that point are on pages 4, 23, 24 (including n. 4), 39, and 40. I suppose they would have found room for more if they were not bumping up against the word-count limit (13,997 words, according to the certificate of compliance).

Since this is an appellant’s brief, the hard copies will have a blue cover. That seems appropriate.