Grammar Confidential Redux: Dispelling and Demystifying Common Writing Myths

The Bencher—May/June 2023

By Professor David H. Spratt

Urban myths or shared folklore are a significant part of our common heritage. These are often passed down from generation to generation without anyone questioning their accuracy. Many of these seemingly unshakable rules relate to basic grammar. This article seeks to debunk many of the grammar “myths” that have gained a stronghold in our collective conscience. Read on, my friends, with an open mind that is receptive to change and an interest in improving your writing.

Myth #1: Never Split an Infinitive

Although the term sounds a bit draconian, splitting an infinitive is nothing more than placing one or more words between the word “to” and a verb. Probably the most-quoted example of a split infinitive can be traced to Star Trek: “To boldly go where no man has gone before.”

To split infinitives is something that strict grammarians like my 11th grade English teacher and William Strunk Jr. (at least in the early editions of The Elements of Style) would have abhorred. Modern grammar texts, however—including the later and online versions of Strunk and White—have abandoned this rule and advocate splitting infinitives if doing so eliminates confusion, adds precision, or simply sounds better.

Merriam-Webster Online, in discussing the usage of split infinitives, states, “Even though there has never been a rational basis for objecting to the split infinitive, the subject has become a fixture of folk belief about grammar. You can hardly publish a sentence containing one without hearing about it from somebody. Modern commentators know the split infinitive is not a vice, but they are loath to drop such a popular subject. They usually say it’s all right to split an infinitive in the interest of clarity.” And since legal writing is all about clarity, well, you get the point.

Myth #2: Never Begin a Sentence with a Coordinating Conjunction (such as “and,” “but,” or “or”)

Starting a sentence with a coordinating conjunction is not incorrect. Before doing so, however, consider whether your idea can be better expressed without resorting to such “deviant” behavior; often, a phrase that begins with a coordinating conjunction is really a sentence fragment, not a complete sentence. And given your likely audience and purpose, persuading your reader or providing information to a court, client, or other lawyer, writing in complete sentences is preferable.

Myth #3: Never End a Sentence with a Preposition

This supposed “rule,” unlike the other two, is less commonly quoted these days, due in some part to Winston Churchill, who mocked its absurdity, stating a version of “This is the sort of English up with which I will not put” or “This is the sort of bloody nonsense up with which I will not put.” The exact quote seems to be unverified, and the number of unsubstantiated variations on the quote continues to grow.

There are some readers, however, who still feel somewhat queasy when confronted with a dangling preposition. When ending a sentence with a preposition, ask yourself: does the sentence need the ending preposition or would the same point be made by deleting it? (If so, delete the dangling preposition.) And does revising the sentence to move the dangling preposition elsewhere make sense or does the revision sound as strained as Churchill’s quote? (If the sentence becomes strained after trying to revise it, leave the dangling preposition.)

Myth #4: “They” Should Only Be Used as a Plural Pronoun

For many years, scholars have debated whether writers should use gender-neutral pronouns, e.g., a landlord breaches the warranty of habitability if they deprive a tenant of an essential service. In nonlegal writing (ahem, “illegal” writing), this practice has generally become acceptable. Fortunately, legal writing, sometimes a bastion of steadfast tradition, is finally getting with the program, recognizing a person’s diversity and individual choices.

Some of you likely have been using “they” as a singular pronoun for some time—perhaps intentionally or perhaps inadvertently. And admittedly, for some, making this change takes a little getting used to. However, this change means more than simply recognizing that some grammar rules are fluid and/or archaic: this change signifies acceptance and promotes inclusion. It is a long-overdue shift in one’s thinking, a matter of respect much more than a matter of grammar.

In early 2021, the first-year legal writing program at American University, Washington College of Law decided to be part of the solution and push toward gender inclusivity. We modified our pronoun policy to state that correctly using “they” as a singular pronoun is acceptable on all assignments. Here are the parameters we give our students:

• “They” must be used as a singular pronoun when a client, colleague, or other person you are writing about identifies as non-binary and uses “they/them/theirs” as their pronouns when referring to themselves.
• “They” may be used as a singular pronoun when you do not know the pronouns of a client, colleague, or other person you are writing about, such as when stating a rule. Using “he” or “she” or making these sentences have plural subjects and verbs—such as “landowners know children are likely to trespass when they have seen previous instance of trespassing”—continues to be grammatically correct.
• When “they” is used as a singular pronoun, a plural verb should be used just like a plural verb is used when “you” is used as a singular pronoun: “If Mary does not hurry up, they are going to miss the bus.”
• When you are writing about a party mentioned in a precedent case, however, the best practice is to use the pronouns that the court uses to refer to that party; changing a pronoun reference used in a case to refer to a party can confuse your audience when reading the case in conjunction with your brief or memo.
• “They” should not be used as a singular pronoun when the reference is to an entity, not a person. Such entities include courts, businesses, and organizations, which should be referenced as “it.”
• “They” should not be used as a singular pronoun when a client, colleague, or other person you are writing about uses pronouns “he/him/his” or “she/her/hers.”

Unfortunately, not all organizations, courts, and employers have accepted this grammatical usage. To reiterate, with anything you write, always consider your audience. But why not be willing to evolve? Way back in 2015, the American Dialect Society chose “they” as a singular pronoun as its word of the year. And many style manuals, including The Chicago Manual of Style, Associated Press Style Book, and the Publication Manual of the American Psychological Association—to name just a few—have embraced this change. More and more law firms are getting with the program.

And in doing so, all these entities have recognized not only that grammar rules are not permanently fixed, but also—and more importantly—that all people, regardless of the pronouns they use, deserve respect.

Myth #5: Lawyers Need to Use Legalese to Impress Their Clients

Wherefore counselors heretofore drafted legal instruments using an esteemed vocabulary a layperson could not comprehend, said practice is obsolete.

Translation: Although lawyers used to draft documents using words and phrases a client could not understand, this practice is outdated.

To expand upon an analogy created by Judge Mark Painter, a contemporary reader does not have any use for a document that sounds like it was written by a white-wigged barrister dressed to the nines, hunched over a Dickensian desk using a quill pen by candlelight! Ordinary, everyday words and phrases are clearer to read and preferred by most readers. Do not forget what you prefer as a reader—simplicity and clarity—and imbue your writing with these same qualities. Remember, good writing clarifies, and poor writing confuses and creates ambiguity.

Myth #6: Redundant Phrases and Wordiness Are a Necessary Part of Legal Writing

If one word says it best, don’t clutter up the text with additional words that mean the same thing. Eliminating words that have similar or identical meanings is yet another way to combat the page requirements imposed by your local court and make your writing more accessible to your reader. Delete unnecessary words from your writing! If there is no difference between two words, only use one of them. Here are a few examples:

Lawyers also have a propensity for using several words when one word will suffice. Avoid multiple word prepositions, replacing them with the words you would use in everyday conversation. Clumsy, convoluted words and phrases clutter up a lawyer’s writing, making the points harder to follow (and simply annoy the reader). Here are a few examples:

If you have additional rules you learned from a long-dead English teacher that have gone the way of the dodo bird, please email them to me at dspratt@wcl.american.edu. I hope dispelling these myths didn’t shatter your world.

David H. Spratt is a professor of legal rhetoric at American University, Washington College of Law, where he teaches legal writing, contracts, and family law litigation and practice and is currently the associate director of the legal rhetoric program. Spratt is chair of the Virginia State Bar Section on the Education of Lawyers and was formerly the civil reporter of decisions for the Virginia Court of Appeals.