GUEST ARTICLE
The Legal Writer
By Judge Mark P. Painter
This month we begin with the wildly exciting gerund rule.
Rule 38. Use the Possessive Before Gerunds
A gerund is a verb converted to a noun by adding an ing. Gerunds should not be confused with participles — verbs converted to adjectives by adding the ing. The former take a possessive form of the preceding noun or pronoun; the latter do not.
The suspect's fleeing the scene was foolhardy. ('Fleeing' is a gerund — it requires a possessive)
The suspect fleeing the scene was shot. ('Fleeing' here is an adjective describing suspect — no possessive)
Personal pronouns especially require this construction.
I appreciate your helping me with the project.
My fondest memory of that trip was my meeting Sam.
The problem was his dozing at work.
But use your ear. Some words do not take the possessive, such as words that already end in s.
The members were upset at the thought of the ducks being killed.
Most often, though, the possessive should be used before the gerund. Put in the apostrophe, and sound out the sentence.
His taking the course was a good idea.
Smith's holding that office was temporary.
The professor was shocked by his making the grade.
This rule is not absolute, but good writers follow it. Sloppy writers do not.
Rule 39. Avoid the "Headnote" Style
Someone, somewhere, must have decreed that headnotes, or syllabi, had to be written in one sentence. That person should be drawn and quartered, at the very least. Why would anyone want to write long sentences, which necessarily need many clauses, to explain a court holding?
Read this one:
Section 4943(B)(2)(c) of the Code, providing for the filing of a surety bond by all licensed dealers in securities, is not rendered unconstitutional by paragraph (d) thereof, allowing the commissioner of securities to determine the amount of the bond without providing any rule or condition by which the commissioner shall be governed in making such determination.
The last part of the sentence almost meets itself.
Another example:
When an employee engaged in the work of leveling a roadway is sent to his work by a superior, just prior to the inception of an electrical storm, equipped with a steel shovel, and while with the steel shovel in his hands he is struck by lightning and killed, the steel shovel in the employee's hands subjects him to hazards greater than that of the general public in the community, and if such fact is proven by his dependent wife, she is entitled to participate in the state insurance fund.
The sentence reads that the electrical storm was equipped with a steel shovel. The readability is approximately zero.
It could be rewritten as two sentences:
When an employee with a steel shovel is sent to work outside by a superior just before an electrical storm, the steel shovel in the employee's hands subjects him to hazards greater than that of the general community. If, holding the steel shovel, he is struck by lightning and killed, his spouse is entitled to participate in the state insurance fund.
The revision is now 61 words rather than 90, and it might be readable. You do not have to state your case in one sentence.
West's key numbers are another example. They are one sentence, no matter how long it has to be:
Trial court's improper refusal to allow manslaughter defendant to introduce particular treatises for impeachment purposes prevented jury from adequately assessing credibility of state's experts and prevented defendant from exercising full scope of his constitutional right to cross-examine witnesses, materially prejudicing defendant and requiring reversal, where experts testified that victim's death must have occurred immediately after fatal blow to his head, and treatises sought to be introduced by defendant suggested that some victims of head injuries survived for up to three days after their injury.1
The sentence is 84 words. Connectors like where and and string clauses together.
Convictions for intimidation and sham legal process were not based upon defendant's erroneous interpretation of the law that negated the "knowingly," "materially false," "fraudulent," "reckless," or "purported" requirement of such offenses; evidence was presented that defendant was aware of the existence of the fact that he was issuing documents not recognized as legal by state law, but which were titled in a manner or using such language to purport to be indictments or judgments or unilateral contracts that affected the public servants in their duties or required them to pay large sums of money to defendant if the public servant acted or failed to act as defendant wanted.2
This one is 108 words. Note the "aware of the existence of the fact that." How about just "aware that," or "knew." There is no rule that syllabi, or headnotes, or case statements be in one sentence. Period.
Rule 40. The Message is the Message
Remember, the form is not everything, but it is very important. The medium is not the message; the message is the message. But if the message is not conveyed to the reader, it is not even a message.
Law is, after all, an art. It is not a science. There is science involved — word processing, Internet legal research, e-mail. But the words in the processing come from us. Words are our parts inventory in the business of law. The collection of words into documents is our major product.
The turning of words into a product — a brief, a trust, an opinion letter — is not a job of easy assembly. It is art. And the more vivid our colors, the sharper our images, the more effective our art. The message is the message — but we must make it as clear and vibrant as we know how.
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Endnotes:
1 State v. Pugh (1999), 136 Ohio App.3d 129, 130, 736 N.E.2d 43, 44.
2 State v. Roten, 149 Ohio App.3d 182, 2002-Ohio-4488, 776 N.E.2d 551, headnote 5.
Lawyers Weekly Publications, 41 West Street, Boston, Massachusetts, 02111, (800) 444-5297
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May 19, 2003
Judge Mark P. Painter has served on Ohio’s 1st District Court of Appeals since 1995, after 13 years on Hamilton County Municipal Court in Cincinnati. He is one of the most-published judges in Ohio history, with more than 270 of his decisions published nationally. He is the author of “Ohio DUI Law, Ohio Appellate Practice,” and