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Writing skills are one of the most important tools of the legal profession. The written word is used to advocate, inform, persuade and instruct. Although mastering legal writing skills takes time and practice, superior writing skills are essential to success.
An excellent way to continue to improve your writing skills is to subscribe to Bryan Garner's blog at LawProse.org. According to the LawProse philosophy, legal writing should be simple and direct. What distinguishes effective from ineffective legal writers is empathy for the reader.I have been reading Bryan Garner’s “Usage Tip of the Day” for a few months now, and have seen many posts addressing language problems I see frequently. What is most helpful is that Garner provides an engaging and clear explanation of the problems, along with identified sources -- all the better to remember the “rules.”
Here is one example:LawProse Lesson #126:“That” vs. “which”
Posted on July 16, 2013 by Bryan A. Garner:
We now come to an issue that has provoked swearing matches in recent months: how to choose between that and which as relative pronouns. Consider:
Republicans oppose new taxes that are unnecessary. (Some taxes might be necessary.)
Republicans oppose new taxes, which are unnecessary. (None, in their view, would ever be necessary.)
Republicans oppose new taxes which are unnecessary. (Ambiguous.)
Most American editors don’t like the third version because of its palpable ambiguity. They insist on choosing between a commaless-that and a comma-plus-which. A commaless-that clause narrows (restricts) the meaning; a comma-plus-which doesn’t narrow (it’s called nonrestrictive). The choice of the relative pronoun reinforces the semantic difference conveyed by the presence or absence of a comma.
So that’s that.
Except it’s not. Though it was born in Britain, this useful distinction has really taken hold only in American English. Hence many British authorities (e.g., Gooden, Greenbaum, Trask) say that it is permissible to use a commaless-which to introduce a restrictive clause, as here: I saw the speeding car which ran over your cat. In that sentence, most American editors would either change which to that or put a comma before which — after discerning the true meaning.
Some American commentators (e.g., Lynch) minimize the importance of the American rule while still reciting it: “It boils down to this: if you can tell which thing is being discussed without the which or that clause, use which; if you can’t, use that” (Lynch, p. 218).
Other commentators cite what they consider exceptional cases: We want to assign only that book which will be most helpful. But such sentences can always be improved by other means: We want to assign only the book that will be most helpful.
The only real exception occurs with by which, for which, in which, etc.: We’ve consulted all the cases in which Justice Kagan has recused herself.
My advice: heed the that/which distinction. Use many more thats than whiches. Try not to be distracted too much when reading current British writing (in which commaless-whiches are rampant). And know that many British sources (Ayto, Times Guide) do hew to this nuance, which Americans have elevated to the status of a rule.
Which stalwart American sources champion the rule? The Chicago Manual of Style, Bernstein, Follett, Garner (ahem), and Words into Type, among others.
This is the house that (not which) Fowler built.
If you don’t already know who Bryan A. Garner is – his extensive writing on the language of the law led The Green Bag to call him “the leading authority on good legal writing.” A chorus of other publications — including The New York Times, Trial magazine, and Harvard Law Review — have echoed that sentiment.Garner is editor-in-chief of Black’s Law Dictionary and the author of many leading works on legal style, including A Dictionary of Modern Legal Usage, The Elements of Legal Style, The Redbook: A Manual on Legal Style, The Winning Brief, and The Winning Oral Argument. His latest books are Making Your Case: The Art of Persuading Judges, co-written with Justice Antonin Scalia, and Garner on Language and Writing, an anthology published by the American Bar Association. His magnum opus is the 897-page Garner’s Modern American Usage, published by Oxford University Press. It is widely considered the preeminent authority on questions of English usage.
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