Inclusive Legal Writing

• Author: Heidi K. Brown
• Pages: 22-23

Inclusive Legal Writing

We can honor good grammar and societal change—at the same time

By Heidi K. Brown

Unlike in social med ia—in which abandonment of

punctuation and proper di erentiation among you’re,

your and the dreaded ur is un fortunately becoming a

norm—precision in language , grammar and punctuation

matters in legal w riting. The meaning of a contract pro -

vision can tur n on the inclusion or omission of a comma.

A litigant’s entitlement to attorne y fees as part of a base

settlement o er c an depend on the drafter’s choice between

phrases such as in clusive of or plus.

Many of us learned how to w rite from college English

teachers, legal w riting professors in law school or meticulous

law fi rm mentors who d rilled respect for gram mar traditions

into our brains. The gr ammar blunders permeating gov-

ernmental twee ts, menus at high-end

restaurants , Hollywood scripts, and

sometimes even break ing-news tickers

on major networks cause some ca reful

writers to sha ke their heads.

Recently, however, I realized there is

an evolving gra mmatical modernization

to which I must adjust. A s a legal writing

professor and mentor to junior law fi rm

associates i n their brief writing, I con-

stantly wr ite margin comments such as

“court is a singular noun, but the y is

a plural pronoun. ... Corporation is a

singular noun, but the y is a plural

pronoun. ... Court is an it, not a they.

... Corporation is an it, not a they.”

When I read a sentence like “A tax payer

may owe a penalty when they fi le a late

tax retur n,” my instinct is to comment:

“They is not a gender-neutral si ngular

pronoun.” As important as long-held

grammar c onventions are in my role as

a legal writi ng professor and brief writer,

I need to be open to change on th is pro-

noun rule in order to model inclusive lega l

writing. The concept of inclus ive legal

writing i s an opportunit y for lawyers to be

at the forefront of balanci ng grammatical

correctness a nd cultivation of gender inclusiveness.

The esteemed Académ ie Française—the highest authority

on matters pert aining to the French language—is not yet so

sure about this “inclusive w riting” idea. In French gra mmar,

nouns are deemed either masc uline or feminine. A well-

entrenched gramma r rule grants the mascu line dominance

over the feminine.

In other words, when describing a c ollection of profession-

als—one male and 500 fema le—a writer would reference

the group using the male plura l version of the word. French

language act ivists have advocated for more inclusive u sage,

removing gender stereot ypes and bias when feasible. For

example, a writer m ight indicate inclusion of both the female

and male versions of the foregoing plura l

noun by inserting a femi nine “(e)” before

the plural “s.” However, the Académie

Française ha s declared the French

language in “mort al peril” from this

inclusive writing c ampaign.

GOING NEUTRAL

As lawyers, a re we similarly resistant to

changing gra mmar norms in legal writi ng?

Legal wr iters indeed have many phrasing

techniques availa ble to avoid using they

as a gender-neutral singu lar pronoun. We

can modif y a sentence to replace they with

who: “A taxpayer who fi les a late t ax return

may owe a penalty.” We can pluralize the

noun: “Taxpayers may owe penaltie s when

they fi le late t ax returns.” We could even

use he or she instead of the y: “A taxpayer

may owe a penalty when he or she fi les a

late tax retu rn.” But the last choice is not

inclusive.

Writing style exper ts, including mem-

bers of the Associat ed Press, copy editors

at the Washington Post and the A merican

Dialect Socie ty already have recogni zed the

singula r they. As legal draf ters, will we get

ahead of the cur ve or mirror the Académie

22 || ABA JOURNAL APRIL 2018

Advocacy

EDITED BY KEVIN DAVIS,

LIANE JACKSON

Practice

“RECENTLY … I REALIZED THERE

IS AN EVOLVING GRAMMATICAL

MODERNIZATION TO WHICH

I MUST ADJUST.”

—HEIDI BROWN

PHOTOGRAPH BY KRISTA BONURA