State Policy, or, Do as I say, not as I state
When should you say “state” instead of “say”?
At best, “state” is formal language that means no more than “say.” Avoid formalism when you can; try to write conversationally.
In Elements of Style, Strunk and White say the only acceptable use of “state” is in the sense of “express fully.”For example, “Defense counsel statedIt does not mean the same as “Defense counsel said she objected.”(Note that you could not say “Defense counsel said her objections to this request.”) her objections to this request,” means the lawyer expressed what the objections were.
When quoting or paraphrasing a person, avoid using “state.”Do not say: “The witness stated, ‘I saw the plaintiff get out of his wheel chair,’” or, “The witness stated that he saw the plaintiff walk.”In both cases, use “said” instead of “stated.”
Similarly, “Defense counsel said her objections to this request were numerous,” is preferable to “Defense counsel stated that her objections to this request were numerous.”
Theoretically, the Strunk and White rule, which is based on the dictionary definition of “state,” also applies to documents and published judicial opinions.Usage, however, has turned “state” into an acceptable, though formal, synonym for “say.”
Thus, a document may “state” something, but it may also “say” the same thing.“The insurance policy clearly states . . .” is correct, but “The insurance policy clearly says . . .” is preferable.Documents also can provide and require, among other things.
Similarly, “The court stated the rule for admissibility of videotape evidence” is correct, because it uses “stated” in the sense Strunk and White demand.But “The court said, ‘The rule is obsolete,’” is preferable to “The court stated, ‘The rule is obsolete.’”
Of course, you may want to use formal language when talking about a court, but bear in mind that there are other words you can use to be formal.A court may hold, declare, announce, rule, decree, teach, instruct, explain, etc.People (and courts) can recall, testify, note, remark, continue, add, etc., and I could go on, but I won’t.
A big part of a lawyer’s job is giving advice. We advise our clients to do things. Unfortunately, “advise” also means “inform” or “tell.” Maybe that is why so many of us seem to think that advising someone of a fact is somehow more lawyerly than telling them about it. We should try to use the simple word.
Instead of You advised me that you could not attend a hearing on March 21.
Say You told me that you could not attend a hearing on March 21.
Nor is “advising” someone a good way to warn them:
Instead of I must advise you of the consequences of your failure to perform as the lease requires.
Say If you fail to perform as the lease requires, . . .
And please think about what “advise” means before you use the awkward, passive and altogether silly expression, “Please be advised . . .” Would you say, “Please be given advice,” or “Please be told”? Of course you wouldn’t.
Finally, another pomposity that lawyers sometimes use when they mean “tell” or “say” is “indicate”:
You indicated that you would be unable to attend the hearing.
As I indicated to you, the Court has postponed the hearing.
I’m left wondering how these indications were made? With a wink and a nod? By bidding no trump? Or was it in a conversation or letter?
You said you would be unable to attend the hearing.
As I told you, the court has postponed the hearing.
Just as you should use plain English instead of Legalese, you should use a simple and direct English word instead of a pompous or vague one.
Assume and presume are not interchangeable, partly because each has several meanings distinct from the other. Thus, one cannot always replace the other. Note these distinct meanings:
Although Mr. Rosen will assume the managing partner’s role this month, he would not presume to fill Mr. Quincy’s shoes.
Even in the sense in which the two words mean almost the same thing, they are not quite synonymous. While Webster’s defines assume as “to take as granted or true,” it defines presume as “to expect or assume with confidence.” Thus, a presumption is stronger than an assumption. Consider these sentences:
I presume you are familiar with the local rules.
I assume you are familiar with the local rules.
Following the dictionary definition, the first sentence indicates that I think you probably are familiar with the local rules, while the second indicates that I am willing to act as if you are. The prefixes help with this distinction a little. A presumption is based on something that went before, while an assumption may be pulled out of thin air. Because I know X, I presume Y. But I don’t have to know anything to assume Y. Thus, we often say, “Let’s assume … .” But we would not say, “Let’s presume … .”
The legal term presumption is Legalese, not just English, so it has a special meaning, part of which happens to be pretty close to what it means in English. Black’s Law Dictionary says, “A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action.” In other words, because I know X, I must presume Y.
But what makes the legal term presumption different is the effect a presumption has on various evidentiary burdens: the burdens of proof and persuasion and the burdens of producing or going forward with the evidence.
The presumption of innocence, of course, is a little different, since it does not depend on establishing any other fact first. But it operates as a legal presumption because of its effect on all those burdens. A criminal defendant is presumed innocent “until proven guilty.” Thus, the presumption helps establish who has the burden of proof.
Finally, there’s suppose, which the dictionary says is a synonym for assume. The distinction between assume and presume also applies to supposedly and presumably. Supposedly suggests that what follows may not be true—or even, is likely not to be true:
He supposedly went to a good law school.
Presumably suggests it probably is true:
He presumably went to a good law school.
Assumably is a word, but not a very good one, partly because assumable is more likely to refer to a loan than to a fact.
A “Hobson’s choice” is not a choice between two unappealing alternatives. That’s a dilemma. A Hobson’s choice is no choice at all.
The term derives from the story of a stable owner named Thomas Hobson, who rented horses. One version of the story is that he told his customers to take the next horse in line, so they had no choice. Another is that he told customers to pick whatever horse they wanted out of the barn, but only one horse was in the barn at any time—so they had no choice. And yet a third version is that Hobson had only one horse for rent.
Thus, Hobson’s choice was originally an ironic term—sort of like the word “volunteer” as it is used in the army or in some large law firms. But Hobson’s choice also applies when all choices but one are either eliminated or unacceptable.
Consider a plaintiff whose injuries could form the basis for an action under either federal or state law. If the statute of limitations has run on the federal claim but not on the state one, the plaintiff has a Hobson’s choice because the alternative to the state law claim has been eliminated.
Similarly, if the plaintiff could file in federal court but would have to jump through all kinds of time-consuming and costly procedural hoops to do so, the state court is a Hobson’s choice because the alternative is unacceptable.
Unfortunately, many people use “Hobson’s choice” when they mean “dilemma.” A dilemma is a choice between two unappealing alternatives, one of which you must pick; it’s not just a choice that is hard to make (which is a predicament, or maybe a tough choice). A choice between vanilla and chocolate is not a dilemma. Of course, what makes each alternative unappealing is often that it requires giving up the other. Thus, choosing between two desirable things—two lovers or two jobs, for example—may prove to be a dilemma.
Being caught between a rock and a hard place is very close to, but not the same as, facing a dilemma. A dilemma requires you to choose one of the unappealing alternatives; being caught between a rock and a hard place means there are two opposing demands, but you may be able to avoid the undesirable consequences of both. An attorney who has to respond to overbroad discovery, for example, may violate confidentiality by turning over too much but may be sanctioned for turning over too little. If the attorney turns over just the right amount (or gets court approval for the amount being turned over), he or she will have successfully negotiated the course between a rock and a hard place.
Then there’s a Catch-22, which isn’t a choice at all—it’s a catch, which the dictionary defines as “a concealed difficulty.” But Catch-22, at least as the doctor and the old man use it in Joseph Heller’s novel, refers to a rule that turns another rule into an absurdity. For example, a rule that a party must come to court to contest personal jurisdiction and a rule that a party who comes to court submits to personal jurisdiction combine to make a Catch-22.
The word “either” is a signal that there are about to be two, and only two, choices. It cannot precede a series of three or more things. You cannot say:
Either Jack, Jill, George or Gracie must be at the hearing.
Nor can you say:
To qualify for the exemption, an applicant must show either: (1) good cause; (2) statutory authorization; or (3) a note from home.
So, how do you make it clear in this example that the qualifications for an exemption are alternative, not cumulative—i.e., that an applicant doesn’t have to show all three? If you just drop the word “either,” the reader finds out these are alternatives when he or she reaches the word “or.” But we don’t want our readers to have to wait. The solution is to replace “either” in this example with “one of the following”:
To qualify for the exemption, an applicant must show one of the following: …
The same is true for “neither.” You cannot say, “Neither plaintiffs, their attorneys, nor any third parties have provided the information requested.”
“Between” is another word that tells the reader you are talking about two things. If you are talking about more than two things, use “among.”
There are seven plaintiffs. Between them they have more than a hundred thousand dollars in medicals.
Jack and his wife have six children among them.
There are more than two plaintiffs, so they have more than a hundred thousand dollars in medicals among them. And Jack and his wife are only two people, so they have six children between them.
Q: An opposing counsel and I recently agreed that I would contact the court about an extension of time. Did we agree to “my contacting the court,” or to “me contacting the court”?
A: Once again, some grammatical terms may help, but maybe not. In “my contacting the court,” “contacting” is a gerund, a noun, and it is modified by the possessive pronoun “my.” In “me contacting the court,” “contacting” is a participle, used as an adjective to modify the pronoun “me.” You don’t need to worry about the gerund and participle stuff; the point is simply that each phrase contains a noun modified by an adjective.
So, the question is, which noun is the object of the preposition “to”—“contacting” or “me”? The answer, of course, is “contacting.” You didn’t agree to “me”; you agreed to “contacting.”
If you say, “I saw him waiting for the bus,” you mean you saw him, not his waiting. On the other hand, you might say, “I saw his waiting for the bus as a sign that he did not want to ride with me.” There, the object of the verb “saw” is “waiting,” not “him.”
That Is, For Example
What is the difference between “i.e.” and “e.g.”?One is an abbreviation of “id est,” which is Latin for “that is.” The other is an abbreviation of “exempli gratia,” which is Latin for “for example.” Can you guess which is which? I bet you can.Both abbreviations are used to introduce an explanation of what you mean by what you just said. “I.e.” indicates you are going to explain yourself by restating something in another way, while “e.g.” indicates you are going to illustrate the meaning by providing an example.
They wanted to honor the editor (i.e., me), but they couldn’t think of a reason.
They wanted to honor anyone with an unusual job description (e.g., me), but they ran out of money.
In the examples above, the information following the abbreviation is very brief. When it is not so brief (i.e., most of the time), use the English phrase (“that is” or “for example”) instead of the abbreviation.
I have noted some apparent confusion about the meaning of the phrase “begs the question.” It does not mean “raises the question”; it means “evades the question,” or “assumes that the answer to the question is established.” In other words, it suggests that a question has been skipped in the logical order of things. It’s sort of like assuming facts not in evidence.
For example, an article written in February 1992 about what kind of judges George Bush would appoint in his second term begged the question of whether he would have a second term. It assumed the answer to that question.
Similarly, asking how big a raise you will get this year begs the question of whether you will get a raise at all, which may beg the question of whether you still have a job. On the other hand, a note telling you that you will get a raise next year raises the question of how big a raise it will be. The note may have compelled you to ask the next question, but it did not “beg” the next question.
The whole comprises the parts. The parts compose the whole. Therefore, the whole is not comprised of its parts; it is composed of them:
The First District comprises the Bay Area counties.
The First District is composed of the Bay Area counties.
As is so often the case, however, usage has blurred this rule, and some authorities approve of “The First District is comprised of the Bay Area counties.” My problem with these authorities is that they don’t reverse the meaning of “comprise”; they just destroy it. They also approve of “The First District comprises the Bay Area counties.” Thus, they would let you say, “The district comprises the counties and the counties comprise the district.” The grammatical Mobius strip that this creates is a little too profound for me.
a) The noun “impact” originally meant only a collision or forceful contact; it did not mean “effect” or “influence.” Some dictionaries now include these other meanings, but add that it must be an “extreme” or “compelling” effect or influence.
Why use the more extreme word, as in, “The impact of the board’s decision was delay,” when you just mean “effect”? If you do mean “extreme effect,” say so, since “impact” has lost its meaning through overuse.
b) Similarly, the verb “impact” does not mean “affect” or “influence.” It does mean “to press together,” like wisdom teeth, or to collide. It also means “to have an impact,” so maybe it means “to have an extreme effect.” I suggest you use the verb to describe teeth and let police officers use it to describe accidents. But do not say, “The board’s decision impacted the project by delaying it.”