The Law of Language: A Fresh Look
4.18.2025
Sometimes following tradition does not work. In legal writing, it can lead to a stodgy style as well as missed chances to advance goals of equity and inclusion. We are on the brink of the publication of the 22nd edition of The Bluebook: A Uniform System of Citation. Given the exalted status of the Bluebook, this may be an auspicious moment to delve into legal writing, first exploring fundamental language style issues – inclusive terms, evolving word usage and essentials of effective legal writing – and ending with a look at technical questions about how to cite authority.
Embracing Inclusive Language
In recent years, increasing attention has been paid to how to refer to people based on gender, race, ethnicity, class, immigration status, disability and other categories. The goals include reflecting changes in society and showing respect to historically marginalized people. Of course, these objectives transcend the realm of legal writing. But given the role of lawyers in our system of justice, the topic has a special resonance for our profession. Indeed, the New York State Bar Association has joined the many groups that are studying inclusive language to produce protocols. In the meantime, interested readers may want to review a particularly comprehensive and insightful article, written for lawyers.[1]
“Black,” not “African American”
A full discussion of inclusive language is beyond the scope of this article. Just two terms relevant to race and gender – “Black” and “they” – are addressed here. There appears to be a consensus that “Black” is preferred over “African American.” These words are not interchangeable. “African American” implies a recent connection to an African nation. However, many people do not have such a connection or came to this country from the Caribbean or Europe or other parts of the world. “Black,” on the other hand, recognizes race, culture and experiences of people all over the world. The term acknowledges that skin color shapes a core part of a Black person’s life in this country.[2]
The use and capitalization of “Black” in the context of race is widely accepted. In its treatment of bias-free writing, the New York Law Reports Style Manual (the Tanbook), produced by the Unified Court System’s Law Reporting Bureau, includes a chart listing language that readers might find offensive or distracting. The chart advises attorneys to avoid “African-American” and instead use “Black.”[3] As an indicator of the state of flux in terminology, consider the varying usages in two recent Court of Appeals decisions: People v. Wright[4] contains both the terms “Black” and “African American,” while in People v. Vaughn,[5] the court uses both “Black” and “black.”
The Singularity of “They”
“They” is a powerful, multipurpose pronoun and solution to two usage challenges. Senior lawyers may recall when “he” was used to connote a male or a female where the gender of the antecedent noun was unknown. When that approach to generic pronouns was deemed a form of linguistic patriarchy, “he or she” or “he/she” was used instead.
There are two flaws in such an approach: it sounds awkward, and it ignores the fact that today some people do not identify as male or female. There is another way. “Studies show that they is the most common singular generic pronoun in spoken American English,”[6] according to Anne Curzan, Ph.D, author of “Says Who? A Kinder, Funner, Usage Guide for Everyone Who Cares About Words.” Curzan, a linguist, language historian and English professor, illustrates how singular “they” also now regularly appears in edited prose. Several of her ideas will be explored in the next section of this article because of her important, learned messages about language style.
The Tanbook suggests using “they” as a singular generic pronoun in place of “he or she” where the gender of the person referred to is unknown, as well as where a person expresses a preference for gender-neutral pronouns.[7] As to these two different uses of “they,” in context, there is no confusion over what is meant. Some colleagues may understandably balk at such usages, contending that they are ungrammatical. However, language rules are not static. And language naturally evolves to reflect who we are and, in some cases, to honor a person’s identity and dignity.
While shaping New York law, the Court of Appeals can also influence language style used by lawyers. An exciting trend has been the court’s frequent use of “they” as a singular pronoun in many decisions, thus implicitly giving the term its imprimatur. These decisions include People v. Howard [8] (“defense counsel is ineffective when their performance”); 160 E. 84th St. Assoc. LLC v. New York State Div. of Hous. & Community Renewal [9] (“the tenant failed to provide the information necessary to verify their income”); McCabe v. 511 W. 232nd Owners Corp.[10] (“discrimination against an individual for their status”); and Amedure v. State of New York[11] (“a voter must place their completed ballot”).
The usage in some ethical opinions is also evolving, as demonstrated by a review of several opinions issued on Sept. 12, 2024 by the Advisory Committee on Judicial Ethics. When referring to a judge, Opinion 24-151 uses “he/she” and “his/her,” whereas Opinion 24-149 opts for “their” and Opinion 24-142 employs both terms.
As to language style in legislation, New York statutes contain many outdated terms. But change is happening, albeit slowly. For example, last year CPLR 306(b) – regarding a description of the person upon whom personal service was purportedly made – replaced “sex, color of skin” with perceived “gender, race.” In addition, chapter 589 of the Laws of 2024 – relating to the waiver of costs, fees and expenses for persons of insufficient means – removed the designation “poor person” from CPLR article 11 and CPL 380.55.
Questioning Rigid Rules
Pundits’ Views
The playful “Says Who?” title of Curzan’s book should not fool us. The book is erudite and persuasive in inviting reconsideration of many language traditions. One intriguing aspect of the book is pushback at some style advice offered by Bryan A. Garner, author of The Redbook: A Manual on Legal Style and other publications. Curzan does not question his expertise or stature, but she finds some of his advice to be off the mark. Her views suggest that definitive sources may contain subjective advice based on the unique sensibility of each language gatekeeper, and it is up to each of us to decide what we like. Whether or not you agree with Curzan’s ideas, you may find her joyful rather than judgy attitude toward language style refreshing.
Two examples illustrate competing viewpoints of these impressive experts. In the 2022 edition of Modern English Usage, Garner describes the word “impactful” as “originating in jargon” and “a word to be scorned.” In a previous edition, he called the adjective “barbarous jargon.” Yet in the opening chapter of her book, Curzan counters that “impactful” is not barbarous or jargony at all, and it is in general use in formal, edited genres of written English. Apparently, our Court of Appeals does not find “impactful” barbarous, as revealed in U.S. Bank National Association v. DLJ Mortgage Capital, Inc. [12] (“the most egregious and economically impactful breaches of the agreement.”)
Among other views questioned by Curzan, in chapter 5, is Garner’s observation that “very unique” is seen as “slovenly.” No, it’s not slovenly, says Curzan. As words so often do, the word “unique” has shifted in meaning. Now it signifies not only something that is one of a kind but also something that is uncommon. Moreover, in the past, noncomparable adjectives have been used comparatively. For example, the preamble to the Constitution refers to “a more perfect Union,” Curzan observes.
Conventional ‘Wisdom’
Many language rules we still follow were absorbed in high school. Three famous phrases Curzan invokes exemplify her assault on conventional wisdom:
- “To boldly go where no man has gone before” (catchphrase from the original Star Trek television series).[13]
- “I can’t get no satisfaction” (classic rock song by the Rolling Stones).[14]
- “And God said, ‘Let there be light’” (Genesis 1:3).[15]
In discussing “To boldly go,” Curzan explains that the rule against splitting infinitives has been handed down from generations of English teachers to their students. One New York City appellate boss was such a student. She was a sophisticated and creative thinker about how to change the law, but clung to 10th grade lessons on language style in forbidding split infinitives in briefs – no matter how stilted the “correct” result might sound. Curzan explains that, while in the early 19th century, split infinitives were disfavored, there is now widespread acceptance that such usage is fine, as long as only a few words come between “to” and the verb.
Next, she points out that “I can’t get no satisfaction” exemplifies the fact that two negatives do not automatically cancel each other to create a positive and that double negation is not inherently wrong or ungrammatical. Her observation is buttressed by historical context, including a 1762 book on grammar that declared that two negatives “destroy one another” – well after double negation faux pas committed by the likes of Chaucer and Shakespeare. Like Mick Jagger, today we can see that multiple negative terms do not always work against each other; they can work together to make a stronger negative. Language is not math, Curzan observes, but if we want to draw analogies, multiplying two negative numbers yields a positive, yet adding them results in a greater negative number. Further, some adjectives are not binary, such as “alive” or “dead,” but instead operate on a continuum. This author hopes that readers are not unhappy about the content of this article. That statement does not indicate an expectation that readers are happy, merely a hope that they are neutral or satisfied, if not quite happy.
The hard-and-fast rule about never starting a sentence with “and” or “but” in formal writing has been tenacious. Yet one can find an initial “and” or “but” in sentences all over academic writing and in literature, and there is nothing informal or improper about starting a sentence this way. And you can find such usage in the Bible, as Curzan points out.
Prepositions and Pronouns
Should you avoid stranding a preposition at the end of the sentence? Curzan observes in chapter 29 that the answer depends on how formal you want your speech or prose to sound. At the end of the 18th century, some grammar books warned that a sentence should never close with a preposition. However, in recent style manuals, the tide has turned to allow it. Such guides indicate that the stranded preposition sometimes sounds natural and can be used even in formal writing. Curzan invokes an illuminating, and yet dark, example from Strunk and White’s “The Elements of Style” to demonstrate the concept: “A claw hammer, not an ax, was the tool he murdered her with” sounds better than “the tool with which he murdered her.”
Curzan notes in chapter 20 that, in conjoined pronoun constructions, the subject form is now often used in the object position (“for you and I,” instead of “for you and me”), and the object form is frequently (and unfortunately) used in the subject position (“me and the team reviewed the document” versus “the team and I”). On the one hand, she acknowledges that conjoined constructions do not necessarily function the same way as pronouns on their own and that a person’s subjective sense of correctness may shift over time. On the other hand, Curzan contends that, at this point, standardized usage still seems preferable to the swapping of object/subject positions.
It turns out that confusion about when to use “who” versus “whom” is nothing new. It was an issue in the 15th century, we learn in chapter 19. Today “whom,” though technically correct, sometimes sounds very wrong. In most formal writing, the “correct” use of “whom” should perhaps prevail or be avoided by reworking the sentence. In less formal contexts, “whom” often sounds fussy and pretentious, in Curzan’s view. (Note that, last year, on Dec. 14, the New York Law Journal opted for the unfussy approach in saying that an author was “a crisis communications manager who attorneys often call.”)
Writing Well
Language style guides, filtered through our own taste, can help us decide whether to remain creatures of habit, adopt a fresher approach or at least become less scornful toward newer usages we read every day. For lawyers, the topic of language style has heightened importance, since our clear and cogent arguments can help our clients win cases. Here are several final thoughts about writing well, from a nonexpert on language style, based on experience as a journalism major, editor and appellate attorney. The article ends with reflections on the Bluebook.
Lesson 1. Do the Hard Work, Spare the Reader
Focusing disproportionately on technical aspects of citations and legal writing – and becoming accustomed to cumbersome conventions and clunky constructions – poses dangers. This approach can play into the notion that legal writing is a distinct genre that is immune from the usual rules governing writing. It is not. Like almost any writing, legal articles and memos and briefs should be a pleasure – not a chore – to read.
Unfortunately, impenetrable prose is not uncommon in legal writing. There is a remedy. The fierce intelligence and commitment that lawyers bring to their work generally can be applied to their writing. The goal is to break down complex ideas into simpler components. Guided by an understanding of how people generally process written information, lawyers can strive to perform editing magic and spin straw into gold.
Lesson 2. Don’t Bury the Lead
Journalism students learn to capture the essential idea of a story in the first paragraph or even the first sentence of an article. Some legal writing goes in the opposite direction and reveals the central message only deep in a paragraph or motion or brief. This tendency was recently brought home to the author. In a pleading under review, several sentences began with hundreds of words packaged in complex clauses before the subject and verb finally appeared at the very end of the sentence. In another recent piece, the essence of an opinion on a cutting-edge topic was buried deep in prolix analysis. Only at the coda of the lengthy piece was a succinct 200-word summary offered. Why not have empathy for busy readers and offer essential analysis at the outset? Legal writing should not frustrate judges and other readers, who may feel like they are bushwacking through the wilderness to reach their destination.
Lesson 3. Strive for Precision, Not Flair
Reading a well-reasoned and well-written brief, even from opposing counsel, is an inspiration. The most memorable brief the author ever read was in a Second Circuit criminal case many years ago. What was special about the brief was not any literary flair or flashy rhetoric, but a lucidity, a beautiful precision in legal analysis and a logical flow from one idea to the next. The brief was appropriately understated in tone, but at the same time was infused with conviction and verve. If contracts, wills and statutes were written by a clear thinker and writer on par with the author of that pristine work, there would be far less litigation to fill attorneys’ and judges’ days.
Lesson 4. Evoke, Don’t Betray, Emotion
Once a colleague said that he liked it when coworkers were emotional because such conduct showed that they cared about the client and the case. But perhaps it is even better to have colleagues who care enough to transcend their emotions, act professionally and use their passion to fuel their drive toward excellence. A similar dynamic applies in legal communications. If the facts warrant, the advocate should convey a sense of the client’s humanity and the injustice of the situation. But that does not mean indulging in bombast or extravagant words. It means skillfully crafting a story that will engage a reader’s reason, as well as their emotion. The writer disappears, and the inherent drama of the situation emerges. In this mission, style manuals can have power and purpose.
Lesson 5. Understand the Limits of the Bluebook
To help readers find authority cited in a legal document, clear and complete citations are important, and the Bluebook has its place. But that place does not include laying down the law for citation style in New York State court practice. If this seems like apostasy, please note that, at the outset, the Bluebook advises lawyers to abide by any citation requirements of the court in which they are submitting their documents. In this state, we have the Tanbook, which serves as a guide for the preparation of opinions for publication in the Official Reports and is the best citation guide for New York practitioners.
Indeed, many lawyers find this elegant, modern resource to be superior to the Bluebook in its approach to citations. Our New York manual, which also covers word style and usage, is available for free download.[16] If you are not comfortable at the idea of abandoning the Bluebook, even for New York court documents, perhaps consider letting go of two outdated conventions: underlining case titles and using parallel citations. The Bluebook says that underscoring case names is traditional. True. We are further told that underscoring and italics are equivalent. Not true. Underscoring is a means to an end – that is, the use of italics. In proofreading, underscoring has long been a convention to signal that the text should be set in italics. Once word processing came into vogue, it made no sense to underscore case titles rather than to use italics. Further, underlining case names is disruptive on the page, which may be why you no longer see this usage in most published material. Thus, the Tanbook’s use of italics in case titles is sensible and welcome.[17]
Parallel citations are also a vestige of the days of yore. For New York decisions, the Tanbook calls for cites to the Official Reports, if available, and declares that, for officially reported cases, parallel unofficial citations are not to be used.[18] Before online research became the norm, providing parallel cites meant that lawyers could find decisions in the bound volumes available at their office – whether official state, unofficial state, or regional reports. That rationale has long been defunct.
Whether applying technical rules, adopting inclusive terms or embracing new language styles, a fresh look at the law of language can reinvigorate legal writing.
Cynthia Feathers has worked as an appellate attorney for three decades. Previously, she was a corporate editor, an adjunct professor of appellate practice and co-chair of the New York State Bar Association Committee on Courts of Appellate Jurisdiction. Feathers sits on the NYSBA Executive Committee as vice president for the Fourth Judicial District, practices in Saratoga Springs and serves as an appellate consultant at the Albany County Public Defender’s Office.
Endnotes:
[1] See Jennifer Safstrom and Joseph Mead, Developing Inclusive Language Competency in Clinical Teaching, 29 Clinical Law Review 349 (Spring 2023).
[2] See id. at 370–75.
[3] See New York Law Reports Style Manual § 12.1(a) (2022).
[4] 2024 N.Y. Slip Op. 03320, *1, *2, *11-14 (2024).
[5] 2024 N.Y. Slip Op. 05874, *1, *8 (2024).
[6] See Anne Curzan, Says Who? A Kinder, Funnier Usage Guide for Everyone Who Cares About Words (2024), at 142.
[7] See New York Law Reports Style Manual § 12.1 (b).
[8] 2025 N.Y. Slip Op. 00184, *3 (2025, Rivera, J., dissenting).
[9] 2024 N.Y. Slip Op. 06377, *2 (2024).
[10] 2024 N.Y. Slip Op. 06290, *11 (2024) (Wilson, Ch. J., dissenting).
[11] 2024 N.Y. Slip Op 05425, *1 (2024).
[12] 38 N.Y.3d 169, 197 (2022) (Rivera, J., dissenting in part).
[13] See Curzan, Says Who?, ch. 28.
[14] See id., ch. 3.
[15] See id., ch. 30.
[16] See https://www.nycourts.gov/reporter/styman_menu.shtml; see generally Gerald Lebovits, Cite-Seeing Part I: The Tanbook, 90 N.Y. St. B.J. 60 (Oct. 2018).
[17] See New York Law Reports Style Manual § 1.1(a).
[18] See id. at § 2.2(a)(1), (b)(1).
