- Ambiguity with “may”; “may” vs, “can”
- Ambiguity with “not . . . because”
- Passive Voice
- Temporary ambiguity with since or as
- Unnecessary words: located, in order, whether or not
Ambiguity with “may”; “may” vs, “can”
I wish I may, I wish I might
“May” is another one of those words with two meanings.It sometimes means “is allowed to,” but it sometimes means “might,” and it is not always clear which it means.For example:
“He may be late.”
Does that mean he is allowed to be late, or that it is possible he will be late?The writer should have said which.
“The court ruled that this action is not entitled to preference, so we may go to arbitration.”
Must a court rule that an action is not entitled to preference before we can seek arbitration?Or does the writer mean the court’s ruling makes arbitration likely?
The ambiguous “may” I see most frequently is along the lines of:
Plaintiff may argue that the statute of limitations was tolled while he went to law school.
The writer’s point is that the plaintiff is likely to make this ridiculous argument.By using “may,” however, the writer lets the reader infer the other meaning — that the plaintiff should be allowed to make this argument.(When the argument is not so ridiculous, the ambiguity is greater.)
The writer should have said, “Plaintiff might argue . . . “
Of course, in many situations the meaning of “may” is clear.“You may kiss the bride,” for example, or, “They may want to meet with us before the hearing.” Just be conscious of the potential for confusion, and make sure you are expressing yourself as clearly as possible.
Anyone who does not recall that “can” refers to physical ability and “may” refers to permission should rent the video of “Avalon” and pay attention to the “Can I go to the bathroom?” scene.Yet we often write:
Defendant cannot argue that this motion is not timely.
Or worse, using the passive voice:
Defendant cannot be heard to argue that this motion is not timely.
Of course, defendant is physically able to make the argument, and, unless the defendant is a tree falling in the forest, someone is physically able to hear the argument.If “cannot” is changed to “may not” in these examples, we are back to our ambiguity problem.Say what you mean:
This motion is timely.
Defendant, who persuaded plaintiffs to resolve this matter informally but repeatedly delayed negotiations, must not be allowed to claim this motion is not timely.
A Just Cause
Negative construction often makes writing difficult to follow. One very common problem is the ambiguity that results when “because” is used after “not.”
She did not win the case because the jury noticed her wedding ring.
Did she win the case? If she didn’t, and the reason was her wedding ring, you can eliminate the ambiguity by moving the “because” clause:
Because the jury noticed her wedding ring, she did not win the case.
Or you can use the verb’s opposite to get rid of the “not”:
She lost the case because the jury noticed her wedding ring.
Or you can do both:
Because the jury noticed her wedding ring, she lost the case.
It is possible, however, that the writer meant to say she won the case for some reason other than her wedding ring. Saying what did happen would make the sentence clearer:
She won the case, but not because> the jury noticed her wedding ring.
To make the point really clear, the writer could have told us whether the jury did notice her ring:
The jury noticed her ring, but that’s not why she won the case.
Here’s another example:
The defendant is not entitled to a shorter sentence because he participated in a drug rehabilitation program.
Is the defendant entitled to a shorter sentence, and does his participation in a drug program matter?
Does the writer mean, “Because he participated in a drug rehab program, the defendant is not entitled to a shorter sentence”? If so, the writer should have moved the “because” clause to say just that, or else eliminated the “not”:
The defendant is ineligible for a shorter sentence because he participated in a drug program.
But maybe the writer means, “The defendant is entitled to a shorter sentence, but not because he participated in a drug rehabilitation program.” (Again, it may be relevant to say whether he did.)
There is a third possibility here, which is the one the writer of this sentence actually meant. The defendant had argued he was entitled to a shorter sentence because he went through rehab. To refute that cause-and-effect argument, the writer should have gotten rid of the word “because,” either by changing it to a different conjunction:
The defendant is not entitled to a shorter sentence even though he participated in a drug rehabilitation program.
or by changing the “because” clause into a noun phrase:
Participating in a drug rehabilitation program does not entitle the defendant to a shorter sentence.
And another example:
The court does not have to create a public policy cause of action here because plaintiff has found himself in a desperate situation.
As in the third option of the last example, the writer means to rebut a cause and effect argument, and should get rid of “because.” Use a different conjunction:
The court does not have to create a public policy cause of action even though [or just because] plaintiff is in a desperate situation.
or change the “because” clause into a noun phrase:
Plaintiff’s desperate situation does not require the court to create a public policy cause of action.
Note: When changing the “because” clause into a noun phrase, avoid using “the fact that” to create a noun clause, such as, “The fact that plaintiff is in a desperate situation does not mean the court has to create a public policy cause of action.”
Try not to use “the fact that” at all — it’s usually cumbersome and unnecessary.
What is the passive voice, and what’s so wrong about it anyway?
The passive voice is a construction in which the person or thing acted upon is the subject of the sentence. It is the opposite of the active voice, in which the actor is the subject.
“I am writing these words” is active.
“These words are being written by me” is passive.
To form the passive voice, put a form of the verb to be in front of the past participle of a verb expressing action. To change the tense and number of the verb, change the form of the verb to be. To form past tense, use past tense of to be: “These words were written by me.” If the subject is singular, use the singular of to be: “This sentence is being written by me.”
Using the passive voice is not “wrong” in the way that mixing tenses or numerical disagreement between subject and verb is wrong. It is a question of style.
Okay, then what is wrong with the passive voice?
1. It is harder to understand.
For many reasons, readers expect sentences in the English language to go Actor, Action, Object. When the order changes, and the object comes first, the reader has to work a little harder to catch what’s going on. The reader gets to “by me” in the example above and has to reconstruct the order. That is not a terribly difficult task, but neither is rewriting the sentence in the active voice, and our job as writers is to make the reader’s job as easy as possible.
By messing with the standard order, using the passive voice alters the focus of the sentence, directing the reader is to the thing acted upon, and deemphasizing both the actor and the action.
The easiest thing for a reader to understand is an action. That’s why you should use the active voice.
2. It uses more words.
The active voice is clearer in part because it is quicker.
3. It may leave the reader uncertain about who is acting.
When you use a “truncated passive” (leaving off the “by so-and-so”), your writing becomes vague:
“These words are being written.”
Now the reader can’t even reconstruct the action because the actor is missing. This is especially egregious when your use of the passive voice deprives you of the opportunity to blame someone. “The response was filed late,” for example, lets someone off the hook for screwing up. Indeed, “The response was filed late by the plaintiff” also shifts focus away from the plaintiff, letting the plaintiff off the hook.
* * *
USING THE PASSIVE VOICE IS NOT ALWAYS WRONG.
For the same reasons it usually doesn’t, using the passive voice sometimes makes your writing clearer. If you want to change the focus of the sentence, or to deemphasize the actor or action, you can use the passive voice to focus on the object. Similarly, a truncated passive helps emphasize the action over the actor.
If you don’t know who the actor is, the passive voice works especially well.
If you want to let someone off the hook, the passive voice takes the reader away from the wrongdoer to focus on the wrongful conduct and its consequences. Be careful with this, however. Don’t go all the way to a truncated passive in an attempt to hide the blame. Just as a parent doesn’t buy it when a kid says, “The milk spilled,” a judge will not be fooled when you act as if your mistake “was made.” Remember, the reader’s brain tries to reconstruct the sentence. Seeing “The documents were misplaced by the defendant,” the brain rearranges things to read, “The defendant misplaced the documents,” but the writer has shifted the emphasis away from the defendant-wrongdoer. Seeing “The documents were misplaced,” the brain tries to rearrange things, but can’t and asks “Who misplaced the documents?” Unable to answer this question, the brain gets frustrated and asks “Who frustrated me?” When the answer to both questions is “the defendant,” the brain is clearly focused on the defendant-wrongdoer.
As is so often the case in matters of style, deliberation is the key. Use the passive voice consciously, not accidentally. Go back through your writing, find past participles preceded by forms of the verb to be, and decide if rewriting the sentence in the active voice will make your writing clearer.
Since You Asked
Be careful not to confuse your reader for even a moment when using “since” or “as.”A “temporary ambiguity” may arise because each of these words has at least two meanings.
They each indicate a time frame:
As I walk to work, I count my steps.
Since I was in law school, I have gained 40 pounds.
But they can also mean “because”:
As I walk to work, parking is not a problem for me.
Since I was in law school, I was allowed to use the bar association library.
None of these sentences is really ambiguous.When the reader reaches the end, the meaning is clear.At the end of the introductory clause, however, there is no way to know in which sense the underlined word is being used.A reader who guesses wrong about where the sentence is going must stop and figure things out.That makes the reader work, and our job as writers is to make the reader’s job easy.
So, how do we avoid confusion when using “since” or “as”?
1) Don’t use “since” or “as” to start a sentence.Move the clause to the end of the sentence:
I have gained 40 pounds since I was in law school.
Parking is not a problem for me, as I walk to work.
2) Don’t follow “since” with a verb in the past tense. Change the verb to a present participle (-ing):
Since attending law school I have gained 40 pounds.
3) Don’t use “since” or “as” to mean “because” if there is a chance of confusion. Use “because”:
Because I was in law school, I was allowed to use the bar association library.
4) Change “as” to “while” and the verb to a present participle:
While walking to work, I count my steps.
(Note: Saying “While I walk to work . . .” can confuse your reader because “while” sometimes means “although.”)
Related Note:Since, as and while we’re on the subject, “while” is not a perfect synonym for “although.”It means “at the same time (as).”
Thus, you should not say, “While I walk to work, I pay for a space in the garage.”You don’t pay and walk at the same time.Use “although” instead of “while.”
Similarly, you should not say, “While the plaintiff claims to have looked both ways, he did not see the train coming.” But you may say, “While the plaintiff claims to have looked both ways, he admits he did not see the train coming.”
“Since” and “as” are two common causes of “temporary ambiguity,” but there are others.People who write statutes are especially apt to rely on the second half of a sentence to explain the first.Good writers don’t do that.
Words To Live Without
Some words are unnecessary. They add nothing to the meaning of the sentence; they just take up room. Get rid of them. For example:
The jury box is located near the witness stand.
Drop “located.” The jury box is near the witness stand.
“Located” should be used only as the past tense of locate, as in, “I have located the documents they requested.” “Located” in this sentence means “found.” Just as you wouldn’t say, “The house is found in a bad neighborhood,” you shouldn’t say, “The house is located in a bad neighborhood.” The house is in a bad neighborhood. That’s all.
(By the way, even when using “located” as an active verb, “found” is preferable, because it is less formal. “I have found the documents they requested.”)
In order to prove negligence, plaintiff must first prove defendant owed him a duty of care.
If you drop “In order” you don’t change the meaning of the sentence.
In order for the plaintiff to qualify, his lawyer must withdraw immediately.
Again, drop “In order.”
(Note that “in order for” is often followed by a noun or pronoun that is then the subject of the main clause. For example, “In order for the employee to qualify, he must file within 30 days.” In a case like that, the whole “in order for” phrase can go: “To qualify, the employee must file within 30 days.”)
Whether or not
Although it is generally a matter of preference when to add “or not,” the best rule is not to use it unless you have to. If the sentence makes sense without it, get rid of it, as you can in these examples:
We must decide whether [or not] to file our motion.
We don’t know whether [or not] he will be there.
(Note: the rule does not change if “or not” is separated from “whether”: “We don’t know whether he will be there or not.” You still can, and should, drop “or not.”)
“I don’t care whether or not you are happy. You still have to do your job.”
When you mean to say “in either case”:
“We will have to appear in court whether or not we file a motion.” This sentence would not make sense without or not.