by Michael Kesten, OTLA Communications Director

All rise! The Court of Grammar and Proper Usage is now in session! Repeated offenses against the English language and numerous grammar citations have made it necessary to call this Court into session. Offenders, too numerous to name, include authors and writers of Trial Lawyer magazine articles, CLE syllabus materials, and all other means of written communications for public or organization dissemination.

First up, the confusing case of That v. Which. These two words are often seen used interchangeably, with little regard for role or assignment. Common law, as interpreted by The Gregg Reference Manual, says which is always used to introduce nonessential clauses, and that is used to introduce essential clauses. Example: The doctor's report on soft tissue injuries, which I sent you last week, should be of some help. Which introduces a nonessential clause. The doctor's report that explains soft tissue injuries should be of some help. That introduces an essential clause and helps define the meaning of a sentence. In other words, if you can read the sentence without the clause, use which, preceded by a comma, to introduce the clause. If the clause is a necessary part of the sentence, use that, with no comma.

Next on our docket, a case of pronoun mistaken identity, He or She v. They. This is where the ink hits the paper in adjusting to the changing mores of our politically correct world.

The challenge: What to do when choosing a pronoun for singular nouns embracing both genders? We find an example in the sentence, "The expert offers his opinion that the plaintiff's lawyer is right." In olden days (about 20 years ago), it was quite acceptable to use the male pronoun (he, his) to refer back to any unspecific noun. Many writers employ what may seem a clever solution-universally applying the plural pronoun they or their. Of course, this places us in hot water for disagreement of number between noun and pronoun. Other writers show off their conscience and social awareness by inserting the female pronoun (she, her). This presents its own dilemma because we know that while nongender specific singular nouns (doctor, witness, lawyer, juror, judge) are not confined to the male gender, neither are they confined to the female gender.

The correct solution is to use the two singular pronouns together: he or she, or his or her, or him or her. For example: The lawyer must consider his or her clients' wishes. While this is correct usage, it can become awkward reading when it is used over and over again. Consider these alternatives. Use the plural rather than the singular: Lawyers must consider their clients' wishes. Eliminate the pronoun altogether: The lawyer must address clients' wishes. Substitute the second person for the third person: As a lawyer, you must consider your clients' wishes.

In the future, we may have a nongender specific pronoun (heshe?) to help us out. In the meantime, use he or she on occasion, look for opportunities to eliminate the personal pronoun and use plural nouns to avoid the problem.

The final matter before us is the case of Quotation Marks v. the People. The poor quotation marks are suffering from over-use and thoughtlessness. Correct usage dictates we use quotation marks to set off a quote. That's it. It is not necessary to use quotes for cute phrases, slang, or colloquialisms. The Court recognizes that exceptions do exist. However, the exceptions rarely apply. The writers who have been summoned tend to sprinkle quotation marks injudiciously throughout their product. Most glaring example: "tort reform." This phrase is part of the general usage and does not require quotes.

As expert witnesses Strunk & White (The Elements of Style, 4th Edition) state, "If you use a colloquialism or a slang word or phrase, simply use it; do not draw attention to it by enclosing it in quotation marks."

Case closed. First offenders will be let off with a warning. Second offenders will be forced to re-read this column. Court will reconvene when the Grammar Police have a fresh group of suspects. Until then, we are adjourned.

This article originally appeared in the October 2000 edition of SideBar, the monthly publication of the Oregon Trial Lawyers Association (OTLA). The author, Michael Kesten, is the OTLA Communications Director. Reprinted with permission.