Random words I dislike

pursuant

hereinbelow

additionally

thereto

notwithstanding

Plain English: my own homeowner's association

PROXY

In accordance with the Texas Nonprofit Corporation Act and the By-Laws of the Homeowners Association, the undersigned does hereby tender this proxy. The undersigned does hereby warrant that he/she is the sole owner of the hereinafter named property, or one of the owners of said property and after having consulted with the other owner/owners of said property, and in accordance with the agreement of said owners, warrants that he/she is entitled to vote on this matter in accordance with Article III of the By-Laws.

Huh?
________

Proxy (absentee) voting form

If you can't attend the homeowners association meeting, you can use this proxy form. It's like an absentee ballot: you mark your votes, sign it, and mail it in, so the association's secretary can cast your vote at the meeting.

To vote, you must be the owner of this property:

[property address]

And you must fit one of these requirements:
1. You are the sole owner or
2. You are a joint owner and you consulted with the other owner or owners and agreed on how to vote.

Organization: easy to skim is better

This is okay (boldface supplied):

The court rejected the plaintiff's claim for declaratory relief for three reasons. First, dolum ipsum orem ipsum dolor sit amet, consectetuer adipiscing elit. Morbi sed leo. Vivamus fringilla eros at libero. Quisque turpis. Ut commodo malesuada tellus. Fusce hendrerit ante non tellus. Sed tristique. Second, donec lacus ante, ultrices non, malesuada a, nonummy nec, leo. Maecenas vel magna eget neque fringilla molestie. Donec et quam. Phasellus magna orci, mattis quis, sagittis sit amet, varius id, lectus. Pellentesque habitant morbi tristique senectus et netus et malesuada fames ac turpis egestas.

Finally, praesent semper. Donec id neque. Etiam ultrices tortor ac tellus tincidunt rhoncus. Curabitur laoreet nisi et mi. Pellentesque mi augue, elementum ut, venenatis sed, pulvinar id, pede. Nunc eu pede vel lacus faucibus tempus. Etiam nonummy elit vel augue.

________

But I like this better (notice that boldface is not needed):

The court rejected the plaintiff's claim for declaratory relief for three reasons.

First, dolum ipsum orem ipsum dolor sit amet, consectetuer adipiscing elit. Morbi sed leo. Vivamus fringilla eros at libero. Quisque turpis. Ut commodo malesuada tellus. Fusce hendrerit ante non tellus. Sed tristique.

Second, donec lacus ante, ultrices non, malesuada a, nonummy nec, leo. Maecenas vel magna eget neque fringilla molestie. Donec et quam. Phasellus magna orci, mattis quis, sagittis sit amet, varius id, lectus. Pellentesque habitant morbi tristique senectus et netus et malesuada fames ac turpis egestas.

Third, praesent semper. Donec id neque. Etiam ultrices tortor ac tellus tincidunt rhoncus. Curabitur laoreet nisi et mi. Pellentesque mi augue, elementum ut, venenatis sed, pulvinar id, pede. Nunc eu pede vel lacus faucibus tempus. Etiam nonummy elit vel augue.

Plain English: alternatives to "you" and "we"

A commenter writes--

• What about the third option of avoiding pronouns completely? (i.e., Purchaser, Seller, Tenant, etc.)

A good suggestion, and one I'd expect to hear from any good transactional lawyer. Thank you.

But for a consumer transaction, I dislike the stuffy sound of these proper nouns:

• Borrower agrees to make 36 monthly payments . . .
• If Borrower pays late twice in one year, Bank will raise Borrower's interest rate . . .

The formality and the absence of articles (like "the") are things I find distracting.

Plain English: "you" or "I" in consumer contracts

I prefer to address a plain-English consumer contract to "you," and Rudolf Flesch is on my side in chapter 4 of How to Write Plain English.

But many prefer the document to speak as if the consumer is speaking or as if the consumer drafted the document:

• I agree to make 36 monthly payments . . .
• If I pay late twice in one year, you will raise my interest rate . . .

To me, this is artificial because it puts into the mouth (or mind) of the consumer language we know was prepared by the institutional party--the one that drafted the text. So this seems more real to me:

• You agree to make 36 monthly payments . . .
• If you pay late twice in one year, we will raise your intereste rate . . .

I have debated this and written about this many times, and my surveys of consumers have shown a 50-50 split.

I may now take it up again with a large client.

Plain English: Am I dull-witted?

The mature and reasonably well educated adult who cannot understand expository writing should not conclude that he is dull-witted or that the subject is too abstruse for him. He should at least entertain the suspicion that the fault lies with the author and that the writing is bad.

Lester S. King, Why Not Say It Clearly 19 (1978).

Granted, I'm not mature. But I am reasonably well educated. So I can stop feeling dull-witted when I read legal stuff?

Court of Appeals

In Texas, we call it a court of appeals, not a court of appeal. Thus the possessive becomes a problem. One commenter and others I have consulted prefer this form for a singular possessive:

• the court of appeals' opinion

which looks better than--

• the court of appeals's opinion

but others always write around it--

• the opinion of the court of appeals

By the way, if you are talking about two courts, it's--

• the courts of appeals

As you can see, the exciting issues in legal-writing are endless. Here I am. Rock me like a hurricane.

Possessives for words ending in "s"

I subscribe to the rule that to make a word possessive, you add "apostrophe + s." Even when the word already ends in "s," this is the rule I follow. With a few exceptions (Jesus, Moses, Achilles, etc.), this rule is widely supported in English style guides. See, for example, Garner's Modern American Usage at page 624. So I write--

Schiess's house
my boss's car
Jones's document

Only when the word is plural and possessive do you place the apostrophe outside the "s."

the Schiesses' house
the bosses' cars
the Joneses' documents

But many students and many lawyers I teach do not follow this rule. Their practice is that any time a words ends in "s," you put an apostrophe after the "s" to make it possessive.

Schiess' class
my boss' car
Jones' document

I don't like this, and I have wondered why people do it when it isn't right.

I just figured it out.

Newspapers use and thereby promote this form. (It may be because of the AP Style Manual's recommendation.) So we read the newspaper and learn this incorrect form. Eventually, incorrect usage will predominate and we'll abandon the traditional rule. Or have we already? We already see the practice spreading from words ending in "s" (like Hays below), to words that end in an "s" sound:

Hays' leader
Gonzalez' opinion
the Red Sox' manager

Yuck.

The strong scent of swelling phrases

This quotation is attributed to Coke in 1826. I like it, and it fits some legal writing today:

Certainly the fair outsides of enamelled words and sentences do sometimes so bedazzle the eye of the reader’s mind with their glittering shew, as they cause them not to see or not to pierce into the inside of the matter; and he that busily hunteth after affected words, and followeth the strong scent of great swelling phrases, is many times (in winding of them in, to shew a little verbal pride) at a dead loss of the matter itself.

Stress position at the end?

Dr. George Gopen asserts that--

It is a linguistic commonplace that readers naturally emphasize the material that arrives at the end of a sentence. We refer to that location as a stress position.

Source (scroll to page 5).

I have read the same thing in other sources. It seems right. But I have also read this:

There are two emphatic positions in a sentence . . . . These are the beginning and the end.

David Lambuth, The Golden Book on Writing 26 (Penguin Books, Ltd. 1983).

While accepting the opinions of Dr. Gopen and Mr. Lambuth, I have still always viewed the beginning of a sentence as more emphatic than the end. Just one example:

1. President Bush made mistakes.
2. Mistakes were made by President Bush.

To me, number one emphasizes President Bush more. This is surely subjective, and some will disagree, but I generally teach my students to use the beginnings of sentences (and of paragraphs and of entire documents) as stress positions.

I liked this--from a 1942 opinion

The cabinets of said machines have a flat horizontal top in the shape of a table, mounted upon a base with one end of the table at a slightly lower elevation than the other.

The game is played on the top of said table by the use of a plunger which propels a metal ball to the top of said table from which point the ball rolls to the lower end.

The game is played by placing a nickel in a coin slot located on the lower left-hand corner of the table and by pushing the slot forward, whereupon a metal ball drops into a receptacle from which receptacle it may be elevated to the playing surface of the board by the player, so that the ball is in a channel which extends the length of the right-hand side of said table and directly in front of the plunger.

The ball is shot by pulling the plunger back along a scale, marked by degrees, and then releasing the plunger. The distance from the ball at which the plunger is released determines the speed which the ball will have when propelled from the channel onto the playing surface of the table.

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