Set in Style

It starts like this:

Effective advocates understand the needs of their audience and tailor their written arguments accordingly.

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In a recent post, we considered a change well underway in English, a change prompted by the shift in relations between men and women. That change is this: they is becoming like you. Now, let’s consider another change, one that also springs from the shift in relations. That change is the very popular use of a noun as an adjective.

Here’s a fine example, recently provided by Nancy Pelosi:

“Now, as a woman, as a woman Speaker of the House, I don’t want any less opportunity than male speakers have had when they have served here.”

There it is. When it comes to talking about men, the tendency is to use an adjective (male) as an adjective. But when it comes to talking about women, the tendency is to use a noun (woman) as an adjective. Why?

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When referring to their female attorneys, better than nine out of ten major law firms call them women attorneys. Yet, when referring to their male attorneys, they all call them (very simply) attorneys. Why the difference? Why treat the women differently than the men? Is that not sexist?

I first raised this matter with the marketing guru for a large law firm. He advised me that “women is a stronger term than female and that’s why law firms keep calling female attorneys women attorneys.” That made some sense. It struck me as similar to our strong reluctance to use it to refer to a person of unknown gender.

But then a lady lawyer objected with this:

Women attorneys is one of my pet peeves! Not only is it ungrammatical, to me it carries a dismissive tone. Much along the lines someone might sniff at women drivers, it seems to create a differential category for female attorneys. By using the noun as an adjective, it suggests there is something beyond sex that is different about female attorneys. The marketing guru is unwittingly correct — women is a much stronger term, and that’s why it’s damaging. I never refer to myself as a woman attorney. I am simply an attorney, and my sex is female, not that the one has anything to do with the other.

That made sense.

I asked an englician* friend of mine, and she said the law firms are using women as an attributive noun, like the truck in truck driver or the school in school teacher.

That made sense, too. But then why doesn’t anyone ever use man as an attributive noun, as in man nurse? Why treat the gals differently than the guys? Is that not sexist?

Just recently, I ran across this post written by a lady lawyer, and I asked her why she called female lawyers women lawyers. She didn’t know, and she asked if I had any theories on this. I thought about it some and came up with this:

I’ve got not so much as a theory, but a hypothesis, and it goes like this: the origin of the use of woman as an adjective is that stereotypical creature known as Joe Sixpack.

Now . . . one day, Joe (who never had a strong command of English) is driving along, and he’s not paying close attention to the road ahead. (Likely, he’s adjusting his car’s radio so he can listen to a ball game.) All of a sudden, Joe looks up and sees a car in his way. He hits the brakes and swerves. When he realizes a woman is driving that car in his way, he yells out his window: “Woman Driver!” Other drivers hear it, and the terms comes to life.

In other words, I supposed a man came up with the term and that he meant it in a dismissive way.

My hypothesis was wrong. It seems likely the term women lawyers was introduced by a woman — a lawyer, no less. In this article titled Women Lawyers in the United States, Lelia Robinson, a female attorney, consistently referred to female attorneys as women attorneys. And that was well over 100 years ago!

Here’s how that article begins:

THIS is an era of experimental philosophy. New departures of every kind have been taken in all directions, physical, mental, and moral, many of which must lead their followers entirely away from the broad paths, smooth-trodden by the myriad feet of custom through the ages, into fields unknown, perhaps to gracious heights beyond, and possibly into pitfalls and quagmires ; and of all nineteenth-century novelties, there is probably no one that would have amazed our good ancestors of a century ago more than the woman lawyer as she exists to-day.

Fascinating! When I discovered this article, I imagined that — back then — woman functioned as both adjective and noun. Wrong! Even more so than today, woman was strictly a noun, and not an adjective. (It was also a transitive verb, which it no longer is, though man is still such a verb — as in “man your battle stations.”)

After that discovery, I imagined that the use of woman as adjective was probably started by 19th-century feminists — by women such as Frances Power Cobbe or Marilla Ricker. But, no . . . as best I can tell, it was a female attorney — Lelia Robinson — who started calling female attorneys women attorneys. I wonder why.

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* Rhymes with mathematician; synonymous with English Major.

TO BE CONTINUED . . . .

You might find this new post of interest. It’s about lawyers aspiring to become writers (and why).

Not so long ago, he, him, and his were the personal pronouns used to refer not just to some man, but to any unspecified person. Common practice was to put things in this fashion:

“No person can be a great leader unless he takes genuine joy in the successes of those under him.”

In the 1960s and 1970s, we discovered that this use of masculine pronouns was blatantly sexist. Since then, we’ve been trying to find an elegant way to make our personal pronouns socially acceptable.

Here’s the most popular solution for print:

“No person can be a great leader unless he or she takes genuine joy in the successes of those under him or her.”

This is OK for print, but cumbersome for speech. After a few recitations, his or hers, he or she, and him or her get old.

When it comes to speech, the most popular approach is to use gender-neutral plural pronouns (e.g., they, them, theirs) to achieve the sexless elegance we seek:

“No person can be a great leader unless they take genuine joy in the successes of those under them.“

While this works well for speech, it isn’t considered acceptable in legal writing. The lawyer who writes they in place of he or she isn’t seen as progressive, but mistaken.

Which raises that age-old question: what to do?

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It’s now common to find the well-educated (e.g., lawyers and judges and presidents) using they as a singular, sexless pronoun when speaking. Yet, it remains totally unacceptable in legal writing, and so it will for years to come. That is, unless some authority declares it the proper thing to do.

According to 28 U. S. C. § 2072, the Supreme Court gets to set rules not just for itself, but for the federal district courts and courts of appeal. So, it could set a rule requiring federal courts (and those filing documents with federal courts) to use gender-neutral plural pronouns to refer to individuals of indeterminate sex. Once it does that, law schools will teach the new rule, and — in short order — they will be just like you: as good for one as many.

Something like this has already happened down under. The Australian Guide to Legal Citation has this declaration:

Gender-inclusive language should be used. The words ‘he’, ‘his’ and ‘him’ should not be employed as the supposedly neutral third-person singular. It is acceptable to use ‘he or she,’ ‘him or her’ or ‘his or her’. It is also acceptable to use the words ‘they’, ‘their’ or ‘them’ as neutral singular pronouns.

And Webster has also declared it proper:

The use of they, their, them, and themselves as pronouns of indefinite gender and indefinite number is well established in speech and writing, even in literary and formal contexts. This gives you the option of using the plural pronouns where you think they sound best . . . .

Fowler doesn’t like it, but he’s not of our time.

The change is inevitable. I say, let’s get this done and over with.

High school students get to struggle with the fine distinctions between affect and effect. Then they go to college. Those who study science or engineering tend to use effect in place of affect, and those who study law do the opposite — they tend to use affect in place of effect. And then editors try to get everyone back to what they learned in high school but forgot.

I wasn’t thinking of such things (I was thinking of the tendency of lawyers to use which in place of that) when I ran across this attorney-authored article that had one copy of the verb affect in the title, and two copies of the noun effect in the first line. And then I wondered whether the author did this for effect.

I don’t like the title of this piece. It’s not very informative. That, plus I’m not thrilled with the alliteration of the Affect effect.

The three California laws mentioned in the article are responses to the Sarbanes-Oxley Act. That’s the thread that ties them together. Given that, I would probably refer to Sarbanes-Oxley in the title of this article. I’d probably give it a title along these lines:

I believe that’s a more effective title: one that makes it easier for interested readers to find the article.

So many large law firms are stuck on stuffy. They use 50 words when 12 will due. They pride themselves on their ability to conjure up convoluted clauses — the sort that lawyers can argue over for hours.

It’s so refreshing to find a firm that can express itself in plain English. Even more refreshing is it to find a firm that knows how to set things in style.

Take a look at this alert from Crowell & Moring. It’s truly exceptional.

In our last post, we discussed some ways in which an editor can make law firm publications look more professional. Let’s continue that discussion.

The following is from a firm’s description of its antitrust and trade regulation practice:

A number of typographical problems to notice:

• Hyphens in place of dashes.
  
• Extra space after the hyphens in the second line.
  
• Loose word spacing in the third line.
  

Here’s what this might look like after an editor touches it:

The typographical problems are gone. The hyphens have been replaced with en dashes, and the first of those dashes has been set in a more appropriate place. The word spacing in the first line of the bulleted point is much improved. And that pesky dangling participle (including) has been replaced with a nice lead-in to the bullets. Finally, the United States was replaced with domestically to make the elements of the parenthetical phrase parallel (i.e, they’re both adverbs).

Take a look at a newsletter set by a professional typesetter, and you’ll find very consistent word spacing.

Take a look at the word spacing is this newsletter published by a law firm:

Notice the very loose spacing in the next to last line. For this to be set in style, that loose spacing needs to be tightened. But how?

One approach would be to add a few words to the next to last line, as shown below:

That’s an improvement, but the word spacing in that next to last line is still too loose.

Here’s what an editor might do: he might edit the copy for fit. The copy might wind up looking like this:

I can hear the gasps now. “Oh my goodness! The editor actually changed the wording of that paragraph. This is completely unacceptable.”

Most attorneys don’t want editors monkeying around with their copy. An editor could inadvertently change the meaning of some copy, and that has the potential to make the author look bad.

I dare say, it has just as much potential to make the author look good.

Let’s consider the changes. First, the title of this bulletin is “SEC Update,” and “SEC” appears in the title of this article. The audience for this article consists of people who understand such things as period-end reporting, safe harbors,and interpretive guidance. So, does it make sense to waste space explaining what SEC means? No; not at all.

This article appears in a bulletin the firm sends to its clients, but the author wrote it like a legal agreement. The editor made it look more like an article in a newsletter. In other words, the editor took steps to make the author look good.

What about (the “Release”) and (”IFCR”)? Did the editor err by deleting these? I say not. The phrase this Release serves the same purpose as (the “Release”), defining Section 404 as (”Section 404″) is absurd, and the abbreviation IFCR is better introduced closer to where it’s used.

What else did the editor do? Notice that the dependent clause and amendments to related rules has been changed to a complete sentence. This is for the convenience of the reader. Notice that the editor deleted of 2002 because he knows there’s only one Sarbannes-Oxley Act, so there’s no reason to specify which one is being discussed.

The result? The revised paragraph is shorter than the original, and this is good (because the reader doesn’t want to have to do more reading than necessary). The article reads more like an article and less like a legal agreement. And the word spacing is now much more consistent, so it looks much more professional.

In short, the editor did what he could to make the author look good.

Have you ever had this experience? You’re reading a sentence, and then you suddenly lose track of where it’s going. It contains a curve; i.e., it doesn’t go where you expect it to go.

Consider this example:

On the road to being effective, visible and valued permanent members of a legal team, getting along with people matters.

The curve comes at the first comma. At that point, the reader supposes he’s just finished a dependent clause, that what follows is going to be the independent clause. That’s the way it reads. But when the reader comes to the second comma, he pauses. After one moment, he realizes his supposition was wrong; the dependent clause doesn’t end at the first comma; it ends at the second comma. The writer has thrown the reader a curve.

A big deal? Not really. But throw too many of these little curves at your readers, and they won’t want to read you again.

What’s obvious is this — the copy was not reviewed by an editor before it was published. If it had been, the curve would have been straightened, perhaps like this:

On the road to becoming effective, visible, and valued members of a legal team, associates learn that getting along with people matters.

Note, in particular, the comma inserted right after visible. That’s a serial comma, and you should make regular use of it (despite what your legal writing instructors taught you).

I ran across this E-Alert which began with this:

In a unanimous decision, the Supreme Court of California in Dore v. Arnold Worldwide, Inc. (August 3, 2006) held that the term “at will” in an employment contract means “at any time without cause.”

It occurred to me that an editor should have reviewed this E-Alert before it was published. A court wouldn’t say that “at will” means “at any time without cause” because that’s certainly not what it means. And, even if a court did say that, a lawyer wouldn’t intentionally repeat the mistake.

What did the court say? I read the decision to see. It turns out the Supreme Court of California didn’t say that “at will” means “at any time without cause.” The closest it got to saying that was this:

Thus, even though AWI’s letter defined “at will” as meaning “at any time,” without specifying it also meant without cause or for any or no reason, the letter’s meaning was clear.

Did AWI’s letter to Dore say that “at will” meant “at any time?” Here’s all the letter said about it:

“Brook, please know that as with all of our company employees, your employment with Arnold Communications, Inc. is at will. This simply means that Arnold Communications has the right to terminate your employment at any time just as you have the right to terminate your employment with Arnold Communications at any time.”

So, the letter didn’t define “at will” as “at any time” either.

Most likely, the error in the first line of the E-Alert is the outcome of something all too common: a lawyer working late at night after a long day. He submits his copy to marketing the next morning without first asking an associate to review it. Nobody in marketing looks at it either because, and this is all too common, lawyers don’t trust the people in marketing to review their work.

That lack of trust has great potential to make the lawyer (the author), as well as the firm (the publisher), look bad.

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Perhaps the lawyer was looking at the appeals court’s decision in this case when he wrote the first line of the E-Alert. In its decision, the appeals court wrote:

These two provisions taken together, along with the rule any ambiguities in the terms of a contract are to be construed against the party who drafted it, convince us the term “at will,” as used in Dore’s contract did not mean “at any time for any reason” but only “at any time.”

Even if the lawyer was writing about the appeals court’s decision, that court’s error should not have been repeated, because people would, most likely, attribute the error to the author of the E-Alert, rather than the court.