Writing Tip of the Week: Writing the Summary of the Argument

The Summary of the Argument in a brief is, in a nutshell, a summary of the best reasons your client should win the case.  Judges often read the Summary before they read the brief, so the Summary sets up your argument by giving the judge the context to view it favorably.  For a judge who doesn’t have time to read the whole brief, the Summary is even more important.

Placement.  In an appellate brief, the Summary comes after the Statement of the Case and before the Argument section.  In a motion brief, the Summary, or “Introduction,” comes before the Statement of the Case.

Content.  According to Fed. R. App. P. 28(a)(8), the Summary “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.”  Although the Summary provides a roadmap of your argument, it is different from the overview paragraph because it is a stand-alone section of the brief.  It covers the main arguments addressed in your point headings, but should not merely repeat them. Try to strike a balance between the detail in the argument section and the more condensed point headings.

Length.  The summary should not be overly long—one to two pages at most.  Typically, that means one paragraph per issue (and perhaps an introductory paragraph if there is more than one issue).  Although you need not give equal weight to each argument, the Summary should follow the same order as your argument section.

Citations.  The Summary should center on the arguments themselves.  Therefore, although you may sometimes need to reference a key statute or controlling case to make your Summary understandable, you will not usually include citations.

 

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 480-83 (2d ed. 2006); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 361-62 (5th ed. 2010).

Writing Tip of the Week: Using Topic or Thesis Sentences in a Brief

As in a legal memorandum, a topic or thesis sentence for a rule explanation in a brief signals your reader that you are introducing new material.  However, unlike a topic sentence in a memo, it is not an objective statement of the rule. Use a topic sentence in a brief to state the rule in a way that subtly favors your client’s position.   

• To determine whether a public figure may recover damages for false statements, the court considers whether the statements were made with “actual malice.” [cite] (objective statement)
• A public figure is entitled to damages for false statements when the publisher makes the statements with “actual malice.” [cite] (favoring public figure)
• A public figure may not recover damages for a publisher’s inaccurate statements unless the statements were made with “actual malice.” [cite] (favoring publisher)

In a brief, a topic sentence for a rule explanation section should be a favorable statement of the legal rule gleaned from a case or group of cases. The topic sentence sets the tone for the favorable facts and rationale that follow.  Although you must address negative facts and rationale, you will give the most attention to those that favor your position.

When the result of a case is favorable to your client, state the rule broadly.  When the result is unfavorable, frame the rule as narrowly as possible.  If part of the rule is favorable, emphasize the favorable part and de-emphasize the unfavorable part.  

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 339-48, 367-75 (2d ed. 2006); see also Anne Enquist & Laurel Currie Oates, Just Writing 41-44 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 173-75, 487-91 (5th ed. 2010).

Writing Tip of the Week: Imply and Infer

Writers sometimes mistakenly use the word “infer” when they really mean “imply.” Although the two words are related, they are used differently. To imply means to suggest or express indirectly.  To infer means to deduce, conclude, or assume.  

Thus, use imply when the actor is sending an indirect message; use infer when the actor is receiving, or drawing inferences from, someone else’s  message.  The person who implies something is the sender of the message, whereas the person who infers something is the recipient of the message. 

·    The detective implied (suggested) that the defendant was guilty by testifying, “He ran when he saw me, didn’t he?”   

·    The detective inferred (deduced or concluded) from the defendant’s demeanor that he was hiding something. 

·    During the settlement negotiations, the plaintiff’s lawyer implied (suggested) that his client would consider a lesser settlement if the defendant publicly apologized.  

·    When the victim filed a civil suit, the defendant’s counsel inferred (deduced or concluded) that the victim was no longer committed to pursuing criminal charges.

For further information, see Anne Enquist & Laurel Currie Oates, Just Writing 310 (3d ed. 2009) and Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 775 (5th ed. 2010).

 

Writing Tip of the Week: That, Which, and Who

The relative pronouns that, which, and who are used to join a dependent clause to the rest of the sentence.  They “relate” the clause back to a noun.

·    The house that the defendant lived in was on Mulberry Street. (clause relates or refers back to the noun “house”) 

If the clause relates to a person, use who.  If the clause relates to a thing, use that if the clause is restrictive and which if the clause is nonrestrictive.  “Restrictive” means that the clause restricts the meaning of the noun—it helps identify the noun. “Nonrestrictive” means that the clause does not restrict the meaning of the noun, but merely provides additional information about a noun that has already been fully identified.   

Clauses beginning with which are nonrestrictive and should be set off with commas; that clauses are restrictive and should not be set off with commas.  Who clauses can be restrictive or nonrestrictive.

·    The driver who hit the green car was seriously injured. (clause refers to a person and is restrictive because it identifies the specific driver being referred to, so use who with no commas)

·     The car that the police were chasing reached the intersection first. (clause refers to a thing and is restrictive because it identifies the specific car being referred to, so use that with no commas)

·      The blue car, which entered the intersection after the accident, was not speeding.  (clause refers to a thing and is nonrestrictive because it is not needed to understand which car is being referred to, so use which with commas)

Relative clauses that follow proper nouns are nonrestrictive; the reader understands what the noun is without the information in the clause. 

·     Justice O’Connor, who wrote the dissenting opinion, applied a novel analysis. (clause refers to a person who is completely identified by name, so it is nonrestrictive--use who with commas)

Anne Enquist & Laurel Currie Oates, Just Writing 215-20, 311 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 656-58 (5th ed. 2010).

Writing Tip of the Week: Persuasive Style Part II

 

Give favorable information the most “airtime.”  Emphasize favorable information by describing it in detail; de-emphasize unfavorable information by describing it more briefly. 

·     Ms. Smith consumed alcohol at the party.

·     Ms. Smith immediately began guzzling beer from a keg.  She then downed numerous shots of Jack Daniels during a drinking game. 

Emphasize favorable information by placing it at the beginning or end of a paragraph or sentence or in a short sentence.  “Bury” unfavorable information by placing it in the middle of a paragraph or sentence.  

• Ms. Smith described the man as six feet tall and 180 pounds, with gray sweatpants, dark hair, and a beard. (to bury gray sweatpants)

 

• Ms. Smith described the man as six feet tall and 180 pounds, with dark hair and a beard.  She noted that he was wearing gray sweatpants. (to emphasize gray sweatpants) 

Juxtapose favorable and unfavorable information.  Juxtapose unfavorable information in a subordinate clause with favorable information in a main clause. 

• Although the boy waved a gun in the air, no one was injured.  (to emphasize that no one was injured)

 

• Although no one was injured, the boy waved a loaded gun in the air. (to emphasize that he was waving the gun) 

Use active and passive voice strategically.   Use the active voice when you want to connect a party with certain actions and the passive voice when you want to distance a party from those actions.

·   The Defendant abruptly transferred Mr. Smith to a branch office two weeks after Mr. Smith’s wife filed a discrimination claim. (active)

• The Plaintiff was transferred because of staffing issues. (passive) 

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 314-15 (2d ed. 2006); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 271-75, 354-61, 513-18, 529-31 (5th ed. 2010).

 

Writing Tip of the Week: Persuasive Style--Part I

Be a subtle advocate.  Don’t risk losing credibility with your reader by coming on too strong or attacking the other side.  Instead, strive for a reasonable tone.

·     Too strong:  No one could possibly believe that Mr. Smith’s complaints about his new office have any merit whatsoever.

·     Better:  Mr. Smith’s complaints that his new office is unattractive and that the printer is too far away are mere inconveniences rather than significant changes in his employment status.  

Choose persuasive words.  To emphasize favorable information and present your case positively, use colorful and persuasive verbs, adverbs, and adjectives.  To de-emphasize facts or information, use neutral, colorless words. 

·        The witness promptly spotted the man as he fled from the store.

·        The witness saw a man leave the store. 

Frame your arguments as conclusions rather than opinions.  Opinion statements are less persuasive and typically include unnecessary “throat-clearing” phrases such as “it is arguable” or “our client maintains.”

·        Opinion:  It is our contention that Mr. Smith took reasonable measures to keep the information secret.

·        Better:  Mr. Smith took reasonable measures to keep the information secret. 

Argue affirmatively, rather than defensively.  Focus your reader on your own argument by making affirmative instead of defensive statements whenever possible.  

·        Defensive:  The defendant wrongly claims, on public policy grounds, that she should not be liable for the injury to Mr. Jones.

·        Affirmative:  Public policy mandates holding the defendant liable to Mr. Jones. 

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 311-26 (2d ed. 2006); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 353-61, 592 (5th ed. 2010).

Writing Tip of the Week: Using Quotations

 

Don’t make the mistake of overusing quotations because you are unsure about how to use them.  Remember that the purpose of quotations is to call attention to specific words.  You lose the reader’s attention when your quotations are too long or too frequent, so quote only when the exact words themselves are important.  

Statutes are a good example of when the exact words matter:  a case often turns on the interpretation of particular statutory language. But even when quoting a statute, be selective about how much you quote, and quote only the portions of the statute that are relevant to your issue. 

Use quotations from case law more selectively.  You should usually paraphrase the court’s holding and reasoning, saving quotations for key words and phrases or sentences that are so well-written that you could not improve on them. You will rarely need to quote the facts of a case.  

·    Finding that there was no “special relationship” between the parties, the court held that the University had no duty to protect the plaintiff from the “well-known dangers of using a trampoline.”  University of Denver v. Whitlock, 744 P.2d 54, 62 (Colo. 1987).  

When you do use quotations, quote the material accurately.  Use brackets to show any changes or additions you have made to the original and ellipses to show any deletions necessary to make the quotation fit within your sentence.  

• The purpose of the Good Samaritan statute is “to encourage . . . assistance by persons on a voluntary basis to enhance the public safety.”  Colo. Rev. Stat. §13-21-116(1) (2005).

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument, 257-59 (2d ed. 2006); Anne Enquist & Laurel Currie Oates, Just Writing 111-13 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 555-56 (5th ed. 2010).

Writing Tip of the Week: Using Generic Transitions

 

Generic transitions are connecting words or phrases that introduce a sentence to help the reader understand how the new information relates to the previous information. Common generic transitions include expressions such as “however,” therefore,” and “in addition.” Good writers use these transitions not just because they “sound good,” but because they help show the logical connections between the ideas in different sentences or paragraphs. 

Using the correct transition is just as important as knowing when to use a transition.  For example, the transition “in addition” adds a new point, whereas the transition “likewise” shows similarity.  Some of the most common types of generic transitions show addition; comparison or contrast; illustration; or conclusion. Even within these categories, different words can have slightly different meanings, so be sure to use the precise transition you need.          

• Sutter’s eyes were bloodshot, and the officer smelled alcohol on his breath.  However, Sutter was able to walk a straight line.  (transition contrasts ideas in the two sentences)
• The Andersons engaged in many activities at the cabin.  For example, each year they held a family reunion there. (transition indicates illustration of idea will follow)
• The suspect was with his daughter at an amusement park until 11:00 p.m. that night. Therefore, he could not have committed the robbery. (transition shows conclusion will follow)

Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 236-38 (2d ed. 2006); Anne Enquist & Laurel Currie Oates, Just Writing 53-60 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 497-511 (5th ed. 2010).

 

 

Writing Tip of the Week: Proofreading Strategies

 

When you have finished revising and editing your work, spend some time proofreading.  Remember that proofreading is not the same as editing—you should not try to do both at the same time.  When you edit, you are revising for style and clarity. When you proofread, you are looking for mistakes, such as missing words, typographical errors, and incorrect punctuation.  Consider these proofreading strategies: 

·    Give yourself a break between editing and proofreading.  Ideally, you should put your paper away for a day before proofreading it, but even 30 minutes can help.

·    Do something different.  For instance, proofread your paper in a different order from the order in which you have been revising it.  If you usually work on the first section first, proofread the last section first. Try reading your paper backwards, line for line, from the back to the front.  Read it aloud, or try covering everything but the line you are reading with a ruler or paper.  If you are a fast reader, slow down.

·    Personalize your proofreading.  Think about the types of errors you tend to make, such as errors in grammar and punctuation or transpositions of certain words.  Then read your paper looking only for these types of mistakes. 

·    Print out a hard copy.  Looking at the hard copy is different from looking at your computer screen, and you may be able to see mistakes more easily on paper. You should always print out a final document, even if you are submitting it electronically.

·    Use Spellchecker and similar computer tools, but do not rely on them.  Spellchecker will not catch missing words, homonyms such as “hear” for “here,” transpositions such as “statue” for “statute,” or misspellings in capitals-only text such as point headings.   

For more information, see Anne Enquist & Laurel Currie Oates, Just Writing 20-22 (3d ed. 2009) and Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 183-84, 221, 471-72 (5th ed. 2010).

Writing Tip of the Week: Use the Correct Tense

 

Knowing which verb tense to use when discussing the law, precedent cases, or client facts can be confusing at first. But as in other writing, use the present tense to describe facts or rules that exist now and the past tense for facts or events that have already happened. 

Use the present tense to discuss the rule of law.

·    A significant change in employment status constitutes an adverse employment action under Title VII. (rule of law exists in the present)

Use the past tense to discuss the facts of a precedent case and the court’s holding or reasoning.

·    In Sanchez, the school district transferred a teacher from one school to another, but her title, salary, benefits, duties, and responsibilities remained the same.  (the transfer occurred in the past)

·    The court held that her transfer did not constitute an adverse employment action.  (court decided case in the past)

·    The court reasoned that because she had the same job title, salary, benefits, duties, and responsibilities, her transfer was a mere lateral transfer rather than an adverse employment action.  (court reasoned in the past)

Use the past tense for client facts that have already happened, but use the present tense for client facts that exist in the present.

·    Mr. Smith worked in the branch office, where he represented adult clients in high-profile criminal cases. (Ms. Smith did these things in the past)

·    The company’s client list contains names, addresses, and phone numbers for all corporate clients. (list exists in the present)

For more information, see Anne Enquist & Laurel Currie Oates, Just Writing 178-82 (3d ed. 2009) and Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 620-23 (5th ed. 2010).

Writing Tip of the Week: Capitalizing "Court"

Rules B7.3.1 and 8 of the Bluebook explain when practitioners should capitalize the word “court” in court documents and legal memoranda.  Under these rules, capitalize “court” in the following three situations: 
 

1.  When “naming any court in full.” 

• The United States Court of Appeals for the Ninth Circuit addressed this question in Gove v. Robinson. 

2.     When “referring to the [United States] Supreme Court.” 

• Justice Scalia wrote the dissenting opinion for the Court.  

3.     When “referring to the court that will be receiving that document.” 

• This Court should deny the Motion for Summary Judgment. 

Otherwise, do not capitalize “court.” 

• The Smith court considered whether a swimming pool was an attractive nuisance. 
• The court in Wilson found the physician liable for failing to warn the victims about his patient’s threats against them.

The Bluebook:  A Uniform System of Citation R. B7.3.1, at 22, R. 8, at 84 (Columbia Law Review Ass’n et al. eds., 19^th ed. 2010); see also Lawmanac—Clickable Help for Legal Writers, “Punctuation, Capitalization, & Typeface” (follow “Capitalization” hyperlink; then follow “Words in Text” hyperlink; then follow “Court” hyperlink) (C. Edward Good ed., 2009).

Writing Tip of the Week: Pronoun Agreement

 

A pronoun must agree with the noun it replaces (the “antecedent”) in number, gender, and person.  Errors often occur with agreement in number.  To avoid these errors, use a singular pronoun when referring to a singular antecedent and a plural pronoun when referring to a plural antecedent.

• Correct:  The police read Jack Rayburn his rights.
• Correct:  The police read Jack and Sue Rayburn their rights.

 

The same rule applies when the pronoun replaces a generic noun.

• Incorrect:  The police must read the defendant their rights.
• Correct:  The police must read the defendant his or her rights.
• Correct:  The police must read defendants their rights. 

Collective nouns, such as court, jury, or team, are singular (unless referring to the members of the court, jury, or team), so they take singular pronouns.  

• Incorrect:  After the court heard the testimony, they dismissed the case.
• Correct:  After the court heard the testimony, it dismissed the case.   

Indefinite pronouns, such as everybody, someone, or no one, usually take singular pronouns. 

• Incorrect:  Anyone would know that they should not drive while intoxicated. 
• Correct:  Anyone would know that he or she should not drive while intoxicated.

 For more information, see Anne Enquist & Laurel Currie Oates, Just Writing 189-94 (3d ed. 2009) and Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 631-34 (5th ed. 2010).

Writing Tip of the Week: Affect and Effect

Affect and effect are easily confused because they look alike.  Further, although affect is normally a verb, effect can be either a verb or a noun, adding to the confusion. You can distinguish the two words by taking a closer look at their definitions. 

Affect is a verb that most commonly means “to influence.”  When used as a verb, effect means “to bring about” or “to accomplish.” When used as a noun, effect means “result” or “consequence.” 

Therefore, to choose between affect and effect, you must first consider whether you are using the word as a verb or a noun. If you are using it as a verb, select affect if you mean “to influence” and effect if you mean “to bring about.” As a noun, effect will normally be the correct choice.  

• The new law affects voters in several swing states. (affect used as a verb meaning “to influence”)
• The new law will effect a change in the way states recount votes in close elections. (effect used as a verb meaning “to bring about”)
• It is difficult to gauge the effect of the new law. (effect used as a noun meaning “result”)

Less common meanings for affect and effect are as follows:  affect as a verb that means “to put on a pretense or feign”; affect as a noun in psychology that means “emotion”; and effect as a noun meaning “personal possessions.”

For more information, see Anne Enquist & Laurel Currie Oates, Just Writing 160-61, 307-08 (3d ed. 2009) and Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 772 (5th ed. 2010).

Writing Tip of the Week: Avoid Nominalizations

One of the best ways to improve your writing is to use active verbs instead of nominalizations. A nominalization is a verb that has been turned into a noun. For example, as nominalizations, the verbs “state” and “assume” become the nouns “statement” and assumption.” Words that end in -ment, -ion, -ence, -ance, -ity, -ent, -ant, and -ancy are often nominalizations.  

Nominalizations lead to wordiness. When you turn a verb into a noun, the sentence then requires additional verbs, prepositions and articles.  Nominalizations also tend to lead to passive voice and weaker verb choice. 

 

·     Nominalization:  The usage of the property by the defendants was for the storage of firewood and building materials.  (17 words; passive voice; weak verb)

·     Better:  The defendants stored firewood and building materials on the property.  (10 words; active voice; stronger verb—“stored” instead of “was”)

·     Nominalization: An agreement was made by the parties to reach a decision by Friday. (13 words; passive voice; weak verb)

·     Better: The parties agreed to decide by Friday. (7 words; active voice; stronger verbs—“agreed” and “decide”)

·     Nominalization:  The intention of Congress was for the interpretation of the statute to be made broadly by the courts. (18 words; passive voice; weak verbs)

·     Better:  Congress intended the courts to interpret the statute broadly. (9 words; active voice; stronger verbs--“intended” and  “interpret”)

 

For more information on nominalizations, see Anne Enquist & Laurel Currie Oates, Just Writing 74-77, 113-14 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 178-79, 521, 556-58 (5th ed. 2010); and C. Edward Good, Legal Writing & Its Cure ch. 3  (reprinted in Lawmanac—Clickable Help for Legal Writers 2009).

Writing Tip of the Week: Commas before Conjunctions Joining Main Clauses

When you join two main clauses with a coordinating conjunction, use a comma before the conjunction.  Although the terminology in this comma rule may sound complicated, it is really quite simple.  A main clause (or independent clause) can stand alone as a complete sentence, whereas a subordinate clause (or dependent clause) cannot stand alone. The seven coordinating conjunctions are as follows:  for, and, nor, but, or, yet, and so. You can use the mnemonic device “FANBOYS” to remember them.

• The defendant provided his own billing system, and he also paid for his own bookkeeping services. (“and” joins two main clauses)
• The appellate court held that the noncompete agreement was void, but it remanded the case for further determination on the question of trade secrets. (“but” joins two main clauses)

While it may be tempting to add a comma every time you use a coordinating conjunction, the rule applies only when you are joining two main clauses with one of the FANBOYS conjunctions.  A sentence with a compound verb does not have two main clauses; thus, it does not take a comma even though it contains a coordinating conjunction. 

• The defendant provided his own billing system and paid for his own bookkeeping services. (dependent clause comes after “and,” so no comma)

Likewise, do not use a comma to join two main clauses without a coordinating conjunction.  In that case, use a semicolon.

• The defendant provided his own billing system; he also paid for his own bookkeeping services. (two main clauses but no FANBOYS)

For more information, see Anne Enquist & Laurel Currie Oates, Just Writing 211-13 (3d ed. 2009) and Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 652-53 (5th ed. 2010).

Writing Tip of the Week: Principal and Principle

Principal and principle look and sound alike, yet have different meanings. While principal can be a noun or an adjective, principle is a noun.

As a noun, principal generally means main or head person, such as the principal of a school.  (Some people remember this meaning using the memory device, “the principal is our pal.”)  As a noun, it can also mean a capital sum of money; a perpetrator or aider and abettor to a crime; or one who employs another (an agent) to act for him.  When used as an adjective, principal means “main” or “primary,” such as the principal finding in a study.

On the other hand, principle is a noun that means a rule, tenet, or basic truth, such as the principle of gravity. 

Thus, use principal as a noun to refer to important people and as an adjective to signify someone or something important.  In contrast, use principle, a noun, when you mean a rule or doctrine.

• The principal of the high school led the students in singing the national anthem. (principal as a noun meaning the main or head person)
• The principal issue in this case is whether the defendant waived his right to trial by jury. (principal as an adjective meaning main or primary)
• Freedom and justice are the principles upon which our country was founded. (principle meaning rule, tenet or basic truth)

For more information, see Anne Enquist & Laurel Currie Oates, Just Writing 311 (3d ed. 2009) and Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 775-76 (5th ed. 2010).

 

Writing Tip of the Week: Use the Active Voice

When you write in the active voice, the subject of your sentence does the acting. In contrast, in the passive voice, the subject is acted upon.

· Active voice: The batter hit the ball. (the subject, the batter, is doing the action in the verb, the hitting)

· Passive voice: The ball was hit by the batter. (the subject, the batter, is acted upon)

 

Because the active voice is generally clearer and more concise, make a habit of using it unless you have a good reason not to. You can spot passive voice in your writing by looking for some form of the verb “to be.” In some forms of passive voice, you will also see the preposition “by.”

· Passive voice: It can be determined that the rule is violated by prosecutors when they fail to research adequately. (17 words)

· Active voice: Prosecutors violate the rule when they fail to research adequately. (10 words)

In other forms of passive voice, the writer leaves out the subject, requiring the reader to fill in the missing information.

· Passive voice: Every week, all confidential material was shredded and discarded. (Who shredded and discarded the material?)

· Active voice: Every week, the company shredded and discarded all confidential material.

For further information on passive voice, see Anne Enquist & Laurel Currie Oates, Just Writing 69-73 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 176-78, 513-18 (5th ed. 2010); and C. Edward Good, Legal Writing & Its Cure ch. 7, (reprinted in Lawmanac—Clickable help for Legal Writers 2009).

Writing Tip of the Week: Its Versus It's

Don’t make the mistake of confusing the possessive “its” with the contractive “it’s.”  “Its” is a pronoun meaning “belonging to it.”  Like the other possessive pronouns (my, mine, your, yours, his, her, hers, ours, their, and theirs), “its” does not take an apostrophe.  Conversely, “it’s” with an apostrophe is a contraction meaning “it is” or “it has.”  

Here's the simple rule:  if you mean “it is” or “it has,” use “it’s” with an apostrophe.  Otherwise, always use “its” without the apostrophe. 

·    Example:  It’s important to let justice take its course. (first “it’s” is a contraction meaning “it is,” so use the apostrophe or write it out; second “its” is possessive, so no apostrophe)

·    Example:  It’s been a long time since he visited the site. (contraction meaning “it has,” so use the apostrophe or write out the words “it has”)

·     Example:  The company will not voluntarily release its financial records.  (possessive, so no apostrophe)

·     Example:  The court heard its first case this week. (possessive, so no apostrophe)  

 

Because legal writing is a formal style of writing, however, you will rarely use contractions like “it’s.”  Thus, you will normally write out “it is” or “it has” and use only the possessive “its.”

 For more information, see Anne Enquist & Laurel Currie Oates, Just Writing 108-09, 238, 310 (3d ed. 2009); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 680, 775 (5th ed. 2010); and Lawmanac—Clickable Help for Legal Writers, “Punctuation, Capitalization & Typeface” (follow “Apostrophe” hyperlink; then follow “Contractions” hyperlink) (C. Edward Good ed., 2009).