BY SUSAN MCCLOSKEY
rammar is the user’s manual that comes with a
language. It helps writers shape their thoughts
into sentences that mean something to readers.
You may not often consult this manual, for the very
good reason that you don’t need to. Even if you have
forgotten what a past participle is or cannot distinguish
a coordinate from a subordinate conjunction, you probably use these grammatical elements accurately more
often than not.
So, whether you picked up grammar on the fly or
learned it by diagramming sentences under Miss
Grundy’s watchful instruction, you may be thinking
right now that the last thing you want to do is read this
essay. Before you act on that thought, however, take the
The errors represented in the quiz are those I
encounter in almost every document I review for my
clients, no matter what their practice area or level of
experience. Think of them as the Lawyers’ Top Ten. If
you recognize what is awry in every sentence and can
set things to rights, read no further. But if even one sentence looks just fine to you, or if you’re curious about
the grammatical errors that other legal writers repeatedly commit, read on. For the grammarphiles among you,
I’ve provided a Bonus Question to test your recall of the
parts of speech and their functions in sentences. Along
the way, perhaps even grammarphobes will conclude
that grammar fosters something more than the chilly
virtue of correctness. It makes intelligible the interchange between writer and reader in which lawyers
Here’s the quiz. You can check your answers on page
Identify and correct the errors in the following sentences.
1. Ordinary socializing and flirtation fails to satisfy
the severity test of a valid sexual-harassment claim.
2. What type of damages are available for recovery
against a builder under these circumstances?
3. Once a moving party meets their burden, the burden shifts.
4. Formal title to the property would remain with the
wife, which may be unpalatable to the husband.
5. Whether due process was honored; whether the
parties’ rights to be heard and represented were fully
exercised; whether the court’s discretionary ruling was
reasoned or arbitrary: This can be determined only on a
6. Bradley’s client said she understood the charges a
few times during the conversation.
7. To prove actual malice, the defendant must have
known the statements were false or published them with
reckless disregard despite knowing they were false.
8. Neither the report of Dr. Farragut nor Dr. Rider
contains the requisite information.
9. In the case of the Loan, (1) there is an express loan,
(2) the terms of which are set forth in the Note, (3) which
interest rate exceeds the permissible rate of 20%.
10. Like Sheffield, the adoptive parent contracted orally, but not in writing, to raise his wife’s child as his own.
11. Bonus Question: For the words you do not recognize in the first stanza of Lewis Carroll’s Jabberwocky,
identify their parts of speech (e.g., noun, verb, adjective)
and their function (e.g., subject, verb, direct object).
’Twas brillig, and the slithy toves
Did gyre and gimble in the wabe;
All mimsy were the borogoves,
And the mome raths outgrabe.1
SUSAN MCCLOSKEY is the president of
McCloskey Writing Consultants in
Verbank, NY. Her firm offers writing
seminars and writing and editorial
services to law firms and law departments nationwide. She received her
Ph.D. from Princeton University and
was a tenured professor of English literature at Vassar College. Her firm’s
Web site address is <www.mccloskeywriting.com>.
Other Writing Clinic articles by Ms. McCloskey have
appeared in the Journal in the November 1998 and 1999
issues, and the November/December issues in 2000,
2001, 2002 and 2003.
Reprinted with permission from the New York State Bar
Association Journal, September 2004, Vol. 76, No. 7, published by
the New York State Bar Association, One Elk Street, Albany, New
Journal | September 2004
The errors in sentences 1 through 10 fall into three
categories: (1) problems of agreement, in which the
writer has obscured the relationship between subject
and verb, or pronoun and antecedent; (2) problems of
modification, in which the writer has mishandled the
modifiers that elaborate the sentence’s core meaning;
and (3) problems of coordination, in which the writer has
mismatched structures that should match or tried to
compare incomparable things. Sorting the problems in
this way makes them easier to recognize; once you’ve
recognized them, solving them is a snap.
Problems of Agreement:
Subject and Verb (# 1–2)
Among the rules of grammar, those pertaining to
agreement are fundamental. Every reader is confused
every time a writer obscures the relationship between a
sentence’s functional elements – its subject and verb, or
its pronouns and the nouns they replace. Even the
grammar-checking program on your computer reacts to
simple instances of these problems, sending out green
squiggles to summon you to greater care.
The first rule of agreement requires that the subject
and verb of a sentence agree in number. A singular subject takes a singular verb; a plural or compound subject,
a plural verb.
In Sentence 1 of the Grammar Quiz, Ordinary socializing and flirtation fails to satisfy the severity test of a valid
sexual-harassment claim, the writer broke this rule by giving a compound subject (ordinary socializing and flirtation) a singular verb (fails). This error is especially puzzling, because the writer almost certainly would never
write Paul and Fred wishes to jettison their voluble silent
partner. Why did he slip into an error here? Perhaps ordinary socializing and flirtation struck him as a unitary concept, like the compound-looking but singular-meaning
subject of this sentence: Having your cake and eating it too
is a delectable impossibility. Offices across the land would
be very different places, though, if there were no distinction between saying hello to a co-worker and blowing him or her a kiss. It is prudent and courteous to
honor that difference and grammatically correct to write
the plural verb fail.
In Sentence 2, the writer mistook the subject, letting
the noun closest to the verb determine the verb’s number: What type of damages are available for recovery against
a builder under these circumstances? The problem is that
the grammatical subject is not the plural damages, but
the singular type. You can avoid this routine error by
remembering that the object of a preposition cannot be
the subject of the verb. This rule disqualifies damages,
recovery, builder, and circumstances, all of which follow
prepositions. By process of elimination, you’re left with
type, a choice that is semantically as well as grammati-
Journal | September 2004
cally accurate. The correct pairing of singular subject
and singular verb clarifies that the writer is interested in
the categories of damages, not in the dollar amount of
the plaintiff’s possible award. In response to her question, she expects actual damages or perhaps punitive damages, not $50,000. Agreement maximizes the likelihood
that she’ll get the response she is seeking.
Problems of Agreement:
Nouns and Pronouns (# 3–5)
Like subjects and verbs, pronouns and the nouns
they replace must agree in number. But the second rule
of agreement is more complicated than the first, because
the pronoun must also agree with its antecedent in person and gender. A pronoun in the second person cannot,
for instance, replace a noun in the third, as here: If a person wants to thrive in solo practice, you had better get used
to long hours and unpredictable revenue. Nor, as a growing
consensus holds, can a pronoun of one gender replace a
noun that includes both genders in its meaning. The
illustrative sentence above becomes grammatically
accurate but politically suspect when you replace person
with only the masculine he or only the feminine she.
The writer of Sentence 3 ran up against this problem
and solved it in the least satisfactory way: Once a moving
party meets their burden, the burden shifts. He wished to
avoid the ponderousness of Once a moving party meets a
moving party’s burden and the ungainliness of replacing
moving party with his or her. So he seized grammar by the
throat, gave it a good throttle, and replaced a singular
noun with the plural pronoun their.
Until English evolves a singular, third-person pronoun to do the job that he alone used to do, you will
have to be resourceful if you wish to be grammatical. If
using his or her displeases you, you must improvise. You
might remove the possessive pronoun altogether: Once
the moving party meets the burden, the burden shifts. Or you
might shift from the singular to the plural: Once moving
parties meet their burden, the burden shifts. In some contexts, you can use we, you, or one to reach the safe harbor
of gender neutrality. In this essay, I have chosen to be
evenhanded instead of neutral, using the masculine pronoun for writers of the odd-numbered sentences in the
Grammar Quiz and the feminine pronoun for writers of
the even-numbered ones. An ideal solution? No. A reasonable expedient? I think so.
Sentence 4 illustrates the forlorn circumstance of a
pronoun without a noun to relate to: Formal title to the
property would remain with the wife, which may be unpalatable to the husband. Does the relative pronoun which refer
to title, property, or wife? The first possibility makes no
sense, because a title isn’t even metaphorically unpalatable. Property makes sense only if we imagine an unusually ugly house and a husband of exacting taste. Even in
the context of divorce proceedings, it’s unlikely that wife
is the intended referent. The writer almost certainly
meant which to refer to the idea she expressed in the
main clause. But a pronoun can’t do that job, because it
derives its meaning not from phrases and clauses, but
from its one-to-one relationship with a noun. Since title,
property, and wife are the only nouns preceding the pronoun, and none tells us what the husband may find
unpalatable, the writer must rephrase to eliminate the
meaningless which: Formal title to the property would
remain with the wife, an arrangement that the husband may
find unpalatable. Or, Formal title to the property would
remain with the wife. The husband may dislike this arrangement.
Unlike Sentence 4’s which, which has nothing to refer
to, Sentence 5’s this has more to refer to than it can reasonably handle. In the long subclause, the writer specifies a three-pronged test of a court’s just dealing:
Whether due process was honored; whether the parties’ rights
to be heard and represented were fully exercised; whether the
court’s discretionary ruling was reasoned or arbitrary. He
meant the singular this in the main clause to refer to all
three prongs – something that a singular pronoun cannot do: This can be determined only on a case-by-case basis.
There are good and better ways to solve this problem.
The plural These would be clearer than the singular This,
but not perfectly clear. Demonstrative pronouns (this,
that, these, and those) require for clarity the demonstration that their name specifies. At the fish market, for
instance, the proprietor knows what you mean when
you say I’ll take six of those, because you can point to the
salmon fillets. The identical instruction over the telephone would certainly prompt a request for clarification. In writing as in telephoning, you are unable to
point, so the demonstrative pronouns do you little
good. Utility and clarity alike increase when you place a
noun after every written use of this, that, these, and those.
In Sentence 5, These elements would be clearer than These
Pronouns cease to be troublesome when you remember what they are and use them to do the work they’re
suited to do. Pronouns take the place of nouns so that
you never need to write a sentence like this one: John lost
John’s case when John’s star witness left town on the day John
planned to place John’s star witness on the stand. As long as
every pronoun you write has an unambiguous relationship with a noun – not a phrase, not a clause, not everything that precedes the pronoun – all will be well. You
make that relationship evident when the pronoun and
its related noun agree in person, number, and gender.
Problems of Modification (# 6–7)
When Western Union charged by the word, people
who sent telegrams knew how to reduce a thought to its
essential elements – an implied subject, a verb, and a
participial adjective (Got married) or an implied subject,
a verb, and a direct object (Send money). In the era of email, writers can afford to be more expansive in their
messages – to indicate, at the very least, whom they
married or how much money they need. Modification
denotes this fleshing out of a sentence’s bare bones – the
use of words, phrases, and clauses to tell the reader
more about the sentence’s essential elements of subject,
verb, and object.
Observe the Zen-like statement, The good is reached,
grow through modification into one of Justice Holmes’s
most famous sentences. First, the noun good acquires
two modifying adjectives:
The ultimate good desired is reached.
This clause then takes on a pair of prepositional phrases:
The ultimate good desired is reached by free trade in ideas.
Then the modifying clauses arrive to elbow the thought
toward increasing clarity. First, a new clause absorbs
and subordinates the existing clause:
Men may come to believe that the ultimate good desired is
reached by free trade in ideas.
This new clause shoots forth a subclause:
. . . they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.
When this modified main clause finally yields a pair of
appositive subclauses, Holmes’s thought is expressed:
[W]hen men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate
good desired is better reached by free trade in ideas – that the
best test of truth is the power of the thought to get itself
accepted in the competition of the market, and that
truth is the only ground upon which their wishes safely can be carried out.2
Justice Holmes certainly did not build this sentence in
the word-phrase-clause order I’ve suggested, but he
needed all three kinds of modifiers as he wrestled with
his thought and pinned it to the page. One of the pleasures of writing springs from these transformations of
vague notions into precise ideas. Of all the exercises of
judgment that inform the crafting of a fine sentence, few
require more care than the writer’s decisions about
which elements of a sentence to modify, how to modify
them, and how extensively to do so.
In legal prose, carelessness on this score shows up
most often in misplaced and dangling modifiers.
Sentence 6 of the Grammar Quiz represents the problem of a misplaced phrase: Bradley’s client said she understood the charges a few times during the conversation. The
Journal | September 2004
modifying phrase a few times during the conversation
should tell us how often and in what circumstance the
client said; in its current place in the sentence, it tells us
instead about the client’s intermittent comprehension of
the charges. As soon as the writer moves the modifier
closer to what it actually modifies, the sentence makes a
different sense – in this case, one more flattering to
Bradley’s client: A few times during the conversation,
Bradley’s client said she understood the charges.
Sentence 7 contains a dangling modifier, a problem
so common in legal prose that even skillful writers slip
into it now and then: To prove actual malice, the defendant
must have known the statements were false or published them
with reckless disregard despite knowing they were false.
Surely the last thing the writer expects the defendant to
do is to prove his or her own actual malice. That task
falls to the allegedly libeled plaintiff, who doesn’t appear
in the sentence except as the implied subject of the
infinitive phrase. For the sentence to make sense, the
implied subject and the stated subject of the main clause
must correspond. The easiest solution is for the writer to
alter the main clause by replacing defendant with plaintiff: To prove actual malice, the plaintiff must show that the
defendant knew the statements were false.
Most legal writers need to keep in mind only two
rules about the grammar of modification: (1) Give every
modifier something it can reasonably modify, and
(2) place modifying words, phrases, and clauses as close
as possible to what they modify. Then you’ll be able to
express even your most intricate thoughts with
Holmesian exuberance and not lose your reader along
Coordination: Parallelism (# 8–10)
When grammatical elements in a sentence perform
the same function, they should take the same form.
Even without brushing up your Shakespeare, for
instance, you know that Hamlet did not say, To be, or stop
being, that is the question. That sentence just doesn’t sound
right. The conjunction or links a pair of alternatives, and
you expect each alternative to match the other in form:
To be, or not to be.
Many structures widely used in legal prose call for
matches as exact as Hamlet’s famous infinitives. You
need parallel constructions when words, phrases, or
clauses are (1) joined by and or or; (2) linked by the correlative conjunctions either . . . or, neither . . . nor, both . . .
and, and not only . . . but also; and (3) presented as items
in a series or a list. In Sentence 8, the writer missed the
signal for matching structures that the correlative conjunctions neither . . . nor were sending her way: Neither
the report of Dr. Farragut nor Dr. Rider contains the requisite
information. Here, the problem is at once grammatical
and semantic. After neither comes Dr. Farragut’s report,
Journal | September 2004
Answers to Grammar Quiz
1. Subject and verb disagree: Ordinary socializing
and flirtation fail to satisfy the severity test of a valid
2. Subject and verb disagree: What type of damages is available for recovery against a builder under
3. Noun and pronoun disagree: Once a moving
party meets his or her burden, the burden shifts.
4. Relative pronoun which lacks a clear antecedent: Formal title to the property would remain
with the wife, an arrangement that may be unpalatable to the husband.
5. Demonstrative pronoun this lacks a clear
antecedent: Whether due process was honored;
whether the parties’ rights to be heard and represented were fully exercised; whether the court’s discretionary ruling was reasoned or arbitrary: These
elements can be determined only on a case-by-case
6. The modifying phrase is misplaced: A few times
during the conversation, Bradley’s client said she
understood the charges.
7. The modifying infinitive phrase dangles: To
prove actual malice, the plaintiff must show that the
defendant knew the statements were false or published them with reckless disregard despite knowing they were false.
8. Parallel structures are lacking: The report of
neither Dr. Farragut nor Dr. Rider contains the requisite information.
9. Parallel structures are lacking: In the case of the
Loan, (1) there is an express loan, (2) its terms are set
forth in the Note, and (3) its interest rate exceeds the permissible rate of 20%.
10. The terms of the comparison cannot be compared: As in Sheffield, the adoptive parent in our case
contracted orally, but not in writing, to raise his
wife’s child as his own.
11. Bonus Question:
brillig: predicate adjective modifying expletive it
(contracted in ’Twas)
slithy: attributive adjective modifying toves
toves: noun; subject of the compound verb
did gyre and gimble: compound verb
wabe: noun; object of the preposition in
mimsy: predicate adjective modifying borogoves
borogoves: noun; subject of the verb were
mome: attributive adjective modifying raths
raths: noun; subject of the verb outgrabe
but after nor comes Dr. Rider himself, apparently withThe Role of Grammar
out the necessary goods. The writer can repair her gramThese problems, whether of agreement, modification,
mar and clarify her meaning by making the nor phrase
or coordination, obscure the relationships between and
match the neither phrase, but the result is cumbersome:
among the words, phrases, and clauses on which the
Neither the report of Dr. Farragut nor the report of Dr. Rider
meaning of a sentence depends. As writers, we may
contains the requisite information. The match works better
conclude that an occasional obscurity – a dangling modin reverse: The report of neither Dr. Farragut nor Dr. Rider
ifier here, or a pronoun without an antecedent there –
contains the requisite information. Or, Neither Dr. Farragut’s
will cause no lasting harm. As readers, though, we may
nor Dr. Rider’s report contains the requisite information. To
not feel so sanguine. Sometimes we need all the grammake the structures match, in other words, you somemar we can get.
times have to experiment.
The Bonus Question illusBut the experiment is always
trates this circumstance. The
Writers who bother to get the
worthwhile and often revealopening stanza of Lewis
ing. Logically dissimilar eleCarroll’s Jabberwocky contains
grammar right clarify their
ments, for instance, will
words whose meanings we
resist your efforts to coordimeanings and ease their
can only guess at, as Carroll
nate them – a reliable sign
fully intended. But that we
readers’ tasks. To this extent,
that you need to rethink what
can guess – that we can even
you’re trying to say.
begin to make sense of these
grammar always matters.
Sentence 9 presents a
words – depends on our
related problem of paralknowledge of grammar. We
lelism, this time in a staple of legal prose, a list. The
know, for instance, that borogoves is a noun because only
writer uses his list to present facts about a loan, but the
nouns take the article the as a modifier. We know that it
grammatical structure of the facts does not match: In the
is a plural noun because it ends in s and takes the plural
case of the Loan, (1) there is an express loan, (2) the terms of
verb were. The clause All mimsy were the borogoves may
which are set forth in the Note, (3) which interest rate exceeds
call to my mind an image utterly unlike the one you see.
the permissible rate of 20%. Each item taken separately
But grammar lets us confidently agree that we’re readshould cooperate with the opening prepositional phrase
ing about certain things (borogoves) existing in a certain
to state a fact about the loan. The independent clause of
state of being (mimsy). Out of Carroll’s delightful non(1) does so, but the dependent clauses of (2) and (3) do
sense, in short, grammar goes a long way toward maknot. What does it mean to write In the case of the Loan, the
terms of which are set forth in the Note or In the case of the
Our job as writers is to turn our sense into someone
Loan, which interest rate exceeds the permissible rate of 20%?
else’s. A writer does this job poorly whenever the readWhen the writer uses (1) as a template for (2) and (3), he
er stumbles over sloppily coordinated elements in a sensolves the problem: In the case of the Loan, (1) there is an
tence or cannot easily discern which word functions as
express loan, (2) its terms are set forth in the Note, and (3) its
the subject of the verb; which noun a pronoun replaces;
interest rate exceeds the permissible rate of 20%. The revised
or which word another word, phrase, or clause modisentence has three independent clauses, each of which
fies. Readers who encounter a few such errors may genmakes sense with the opening phrase.
erously sort them out. Readers who encounter many
A final problem of coordination appears in Sentence
may reach uncharitable conclusions about the writer’s
10, where the writer tries to compare incomparable
care, courtesy, or command of the language. Writers
things – not just apples and oranges, but apples and
who bother to get the grammar right clarify their meanchimpanzees. Like Sheffield, the adoptive parent contracted
ings and ease their readers’ tasks. To this large extent,
orally, but not in writing, to raise his wife’s child as his own.
grammar always matters. It is the user’s manual that no
But the adoptive parent is not at all like a legal case. To
serious writer ever discards.
solve the problem, the writer has a choice. She can write,
Like the adoptive parent in Sheffield, the adoptive parent in
1. Lewis Carroll, Jabberwocky, in A Victorian Anthology,
1837–1895 (Edmund Clarence Stedman, ed., Camthe present case, or she can do the job more efficiently: As
bridge, Mass.: Riverside Press, 1895); available at
in Sheffield, the adoptive parent in this case . . . . Almost
always traceable to haste, this particular error suggests
2. Abrams v. United States, 250 U.S. 616, 630 (1919).
a writer’s willingness to embrace logical impossibility –
an inclination that a client or a judge may find particularly alarming.
Journal | September 2004