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September 2006

Is it "setoff" or "offset"?

I'm often confused about whether to use setoff, set-off, set off, or offset. All these terms can refer to reduction of one amount by another.

Black's Law Dictionary (7th ed.) defines setoff (the noun) as "A defendant's counterdemand against the plaintiff, arising out of a transaction independent of the plaintiff's claim," or as "A debtor's right to reduce the amount of a debt by any sum the creditor owes the debtor; the counterbalancing sum owed by the creditor." The noun can also be written set-off.

Note that neither setoff nor set-off is a verb. If you want a verb, write it as two separate words: set off. Black's definition of set off suggests that it's synonymous with counterclaim or offset.

According to Black's, offset (the noun) means "Something (such as an amount or claim) that balances or compensates for something else; SETOFF."

There's also a verb offset, which means "To balance or calculate against; to compensate for <the gains offset the losses>." Bryan Garner's Dictionary of Modern Legal Usage suggests that the verb offset "is generaly inferior to set off, although it cannot rightly be condemned as an error."

I may still be confused about this, but here's what I draw from these reference books:

  • If you want a noun referring to any reduction of one amount by some other amount, the noun offset is okay.
  • If you want a noun referring specifically to reduction of the amount owed by debtor to creditor by some other amount that the creditor owes the debtor, use the noun setoff or set-off. While offset would not be a mistake, setoff or set-off would be more precise.
  • If you want the verb form of setoff or set-off, make it two unhyphenated words: set off.
  • If you want a verb that's more general than set off, one that describes anything that mitigates something else, use the verb offset.
  • When in doubt, write offset; you may be less precise than you could have been, but you won't be wrong.

I stand corrected

In my August 15 entry, I referred to "Strunk's and White's rules" (two possessives). But after reading an e-mail from alert reader Scott A. Meyer, I think I should have written "Strunk & White's rules" (one possessive). Scott referred me to the on-line Chicago Manual of Style, which provides this Q&A:

Q. Please state which of the following is the correct usage, sun and earth's gravity or sun's and earth's gravity.

A. Since the sun and the earth each possesses its own gravity, make them each possessive: "the sun's gravity and the earth's gravity," or, more concisely, "the sun's and earth's gravities." When you refer to a single item that two subjects share, a single possessive serves: Claire and David's house.

Similarly, since The Elements of Style contains one set of rules attributed to two authors, my entry should have referred to "Strunk & White's rules."

The Eleventh Circuit's style guide

StrunkandwhiteRecently I was admitted to the Bar of the U.S. Court of Appeals for the Eleventh Circuit. In yesterday's mail, my certificate of admission arrived — accompanied by a copy of The Elements of Style by William Strunk Jr. and E.B. White. Perhaps this is the court's way of suggesting that lawyers follow Strunk's and White's rules when writing briefs, motions, and other papers.

Also included in the package from the court was a cover letter encouraging me to "refer to the most recent revisions of the Federal Rules of Appellate Procedure, Eleventh Circuit Rules, and Internal Operating Procedures," all of which are available on the court's web site. This reminder calls to mind an important pointer for any lawyer practicing before any U.S. appellate court: Each court's web site includes links to the Federal Rules of Appellate Procedure and the court's local rules. Most of them also include guides and checklists for writing briefs. No matter how many briefs you've written, it's never a bad idea to review those on-line resources before writing your next one. Remember that the rules may have changed since your last brief, and that you can always find the most current versions of the rules and guides on the court's web site.


p.s. (8/25/06): It seems this post attracted the attention of the ABA Journal e-Report.

Show and tell

WinningbriefA few months ago, Carolyn Elefant wrote some nice words about this blog, but lamented that, "like so much of what's been written about legal writing, the blog thus far engages more in telling about good legal writing, rather than showing how it's done." She expressed a similar thought in a comment on The Illinois Trial Practice Weblog: "what I'd love to see are examples of great legal writing in briefs. Not just serviceable or workmanlike (which is how one of my former bosses complimented my work) but stuff that really stands out."

As a student of legal writing, I appreciate Carolyn's suggestion, but as a practicing lawyer, I have a tough time following it. Much of what I write on the job is confidential. While it's true that a brief, once filed, is a matter of public record, I'm concerned that posting a brief while the case is active could cause problems on many fronts. (I noticed that in response to Carolyn's comment, Evan Schaeffer uploaded briefs from a case decided eight years ago.) And while I can't speak for other bloggers, my own blogs (including this one) are personal blogs, not work-related or firm-related, and I'd like to maintain the wall between blogging, which I do on my own time, and my job.

Fortunately, there is a terrific resource for lawyers who, like Carolyn, would "love to see ... examples of great legal writing in briefs ... stuff that really stands out." It's The Winning Brief by Bryan A. Garner, a book in which Bryan not only tells you what to do, but shows you how it's done. The book contains 100 briefwriting tips, each accompanied by real-world examples culled from briefs Bryan has collected over the years, including many written by participants in Bryan's seminars.

The book lists for $50, which is a bit expensive, but will sell it to you for $39.55. You may also be able to pick up a used copy, as Jeremy Richey did.