by Susie Salmon THE LEGAL WORD
Susie Salmon is Assistant Director
of Legal Writing and Associate Clinical
Professor of Law at The University of
Arizona, James E. Rogers College of Law.
Before joining Arizona Law, she spent
nine years as a commercial litigator at
large firms in Tucson and Los Angeles.
As a legal writer, you generally want your reader’s experience
to be smooth and seamless. When you communicate your narrative and
your arguments, you want to remain as invisible as possible; ideally, you
will anticipate and answer your reader’s questions before they arise, and
your reader will arrive at your conclusions as if on their own. You do not
want awkward or confusing phrasing to jar the reader into hearing you
rustling behind the curtain.
Certain miscue words can create momentary insecurity and disrupt
your reader’s smooth ride. Even if your reader discerns your meaning in
a moment or two, too many small moments of doubt can erode your
reader’s overall confidence in your writing.
What do I mean by miscue words? Here are a few examples:
Writers occasionally use the words due to as a substitute for because. This
creates problems for two reasons. First, in legal writing, sometimes we
analyze issues relating to debt or other monies due. In those instances,
the word due primes our readers to expect a different discussion. If, instead, we simply mean because of, our readers will ultimately puzzle out
the meaning, but there will be a moment of confusion.
Due to also tends to signal a less dynamic sentence. Consider:
• Due to the defendant’s conduct, Ms. Gestautas lost $4 million
• Defendant’s conduct deprived Ms. Gestautas of $4 million in
Although the first example does the job, the second is more concise, 1 it
ties the consequences more directly to the defendant’s actions, and the
use of the word deprive casts the defendant’s conduct in a more damaging
Because is a perfectly good word. Use it. Too often, people use since when
they really mean because, and this risks creating the momentary
apprehension that you intend the primary meaning of since: an
intervening period between one event and another. For example:
• Susie was late to work since her dog Petey chewed her
smartphone last week.
• Since the running group had agreed to meet at Swan and
Sunrise, Marti has been waiting in the Starbucks parking lot.
You can see the potential confusion. How many times has Susie
been late to work? Just how long has Marti been waiting in that
parking lot? Better to use the word because if you mean because.
In the same way, some writers use as to mean because. Again, this
risks a momentary miscue: Do you mean that two things are hap-
pening simultaneously? Or do you mean because For example:
• Bruce drove carefully on the rocky road to the trailhead, as
Bailey rode in the backseat.
Does this mean that Bruce drove while Bailey rode? Or does it
suggest that Bruce drove particularly care-
fully because Bailey was in the backseat?
Again: Because conveys the meaning clearly.
Why not use it?
Do not use the word while when you mean
whereas, although, or but. Only use while to
indicate that two things are happening at the
same time. For example:
• Mugsie put his head in the bowl while I
was still pouring kibble, so you’ll proba-
bly find bits of kibble under the cabinet.
• Although (not while) I tried to keep
him away from the bowl, he learned
how to escape the playpen. 2
• Whereas (not while) Moose waits
patiently for his food, Petey and
Mugsie rush the bowls.
Some grammar and usage experts sanction
using while when you mean whereas, although,
or but. 3 All of those experts caution against
substituting while for these other words
where the substitution could engender confusion. They leave it to you to anticipate
whether your meaning might be ambiguous
to your reader.
I’ve discussed this problem before in the
context of the clarity4 comma: often, meaning that seems clear to the author is not so
clear to her reader, and this may be even
more true for legal writers. We fall prey to
“clarity psychosis,” 5 where a writer is so close
to her work product that she cannot recognize potential ambiguities. Thus, it’s safer to
err on the side of the more precise word. 6
Effective legal writing communicates with
precision. Although some of these miscue
words might convey the intended meaning
in many circumstances, and although experts
may sanction their use, a careful writer will
avoid the risk of ambiguity.
1. Let’s not even talk about the abomination
that is due to the fact that.
2. Mugsie learns quickly, but not that quickly.
3. Oh, Bryan Garner! I thought that I could
count on you!
4. Also known as Oxford, also known as serial.
See my April 2014 column.
5. You’ve heard of “trial psychosis”?
6. And use the clarity comma.