I recall seeing this article before, but the Legal Writing Prof Blog reminded me of it today: Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions by Robert C. Farrell in the Loyola University Chicago Law Journal.
Do you remember all of the voices, tenses and moods? I stopped formal English training my freshman year of undergraduate college when I dropped creative writing. I remember much of the terminology and many of the rules, but not all, so I am heartened by this quote from the article:
In general, it is possible for a lawyer to speak
and write well even if that lawyer is not familiar with the grammatical terminology that describes the structure of the English language.
Mr. Farrell’s point is that it is important to understand the nuances because some judicial opinions reveal the court’s reliance on the shadings between verb forms in reaching decisions. It is good news for me that Mr. Farrell includes a refresher course in his article!
I have to admit that Mr. Farrell’s observation does seem a bit like common legal sense. I have made a living examining insurance policies and staring hard at the commas and conjunctions for any sign of meaning. It (almost) goes without saying that looking in reverse at a drafted item requires that the reader have a very firm grasp on grammar and punctuation. We rely so heavily on precedent and authority and the intended meaning behind the written words, that this level of scrutiny can be taken for granted. But there is no question in my mind that the better you understand the rules of grammar, the sharper your sword.
I really enjoyed reading the article and do recommend it. As a lawyer who understands these subtleties instinctively, it is fascinating to read what courts actually have done with sloppy verb use.