August 20, 2019

Archives for May 9, 2012

Legal Writing Pro: Four Usage Fights

1. Should I use a serial comma?

Some say we should omit the last comma in a series because it takes up space. For lawyers, however, ambiguity is much scarier than an extra comma.

Every authority that matters in the legal world favors the serial comma: Strunk and White, Wilson Follett, the Chicago Manual of Style, and Bryan Garner’s Dictionary of Modern Legal Usage, just to name a few. The few authorities that disagree are all journalism guides.

Still not convinced? All nine U.S. Supreme Court Justices use the serial comma. Here are three examples:

Justice Breyer:

They have no access to newspapers, magazines, or personal photographs.1

Justice Souter:

The thrust of this evidence was that, based on factual reports, professional observations, and tests, Clark was psychotic at the time in question, with a condition that fell within the category of schizophrenia.2

Justice Kennedy:

The Court’s tripartite structure is something not addressed by the state trial court, the state appellate court, counsel on either side in those proceedings, or the briefs the parties filed with us.3

2. Can I start a sentence with however?

Starting sentences with however is grammatically correct. Many good writers avoid doing so, however, because however is heavier than but. When these writers do use however, they move it into the middle of the sentence to emphasize the contrast:

Smith, however, was unable to compensate Jones.
Smith was unable, however, to compensate Jones.

In the recent Solomon Amendment case, Chief Justice John Roberts uses however six times mid-sentence. At the beginning of his sentences, he prefers but:

In its reply brief, the Government claims that this question is not before the Court because it was neither included in the questions presented nor raised by FAIR. […] But our review may, in our discretion, encompass questions “fairly included” within the question presented, […] and there can be little doubt that granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says.4

3.  Can I start a sentence with and, but, or yet?

Yes, yes, and yes. Note the following sentences from Hamdan v. Rumsfeld:

Justice Stevens:

And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.

Justice Scalia:

But they surely gave Congress ample reason to doubt that their application in pending cases would unfold as naturally as the Court glibly assumes.

Justice Alito:

Yet the mere statement that a military court is a regularly constituted tribunal is of no help in addressing petitioner’s claim that his commission is not such a tribunal.

One small point: When you start a sentence with and, but, or yet, don’t use a comma. The purpose of these punchy conjunctions is to force the reader into the rest of the sentence. A comma does nothing but stop the flow.

4.  Can I start a sentence with because?

“You shouldn’t start sentences with because.” Really? It’s true that kids are inclined to say, “I want to stay inside. Because it’s raining.” But great adult writers can—and should—start sentences with because to emphasize cause and effect:

Kathleen Sullivan:

Because each posting of a work is technically a “copy,” each posting is within the reach of the Copyright Act.5

Lawrence Tribe:

Because all the undervotes that will be manually counted will be counted under this same standard, there is nothing to [Bush’s] equal protection claim.6

Walter Dellinger:

Because the team was not afforded funding, equipment, and facilities equivalent to those offered to boys’ teams, petitioner was denied an equal playing field from which to coach.7

Justice Ginsberg:

Because the deadly weapon Recuenco held was in fact a handgun, the prosecutor might have charged, as an alternative to the deadly weapon enhancement, that at the time of the assault, Recuenco was “armed with a firearm.”8

Justice Thomas:

Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses.9


  1. Beard v. Banks (2006).
  2. Clark v. Arizona (2006).
  3. Id.
  4. Rumsfeld v. FAIR (2006).
  5. Petitioners’ brief in Eldred v. Ashcroft (2003).
  6. Respondents’ brief in Bush v. Gore (2000).
  7. Petitioner’s brief in Jackson v. Birmingham Bd. of Educ. (2006).
  8. Washington v. Recuenco (2006).
  9. Kansas v. Marsh (2006).

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Finalists Selected to Fill Judgeship on Twentieth Judicial District Court

The Twentieth Judicial District Nominating Commission has nominated three candidates for a district court judgeship created by the retirement of the Honorable James C. Klein, effective June 30, 2012.

The nominees for the bench are David Cheval of Boulder, Judy LaBuda of Niwot, and Bruce Langer of Superior. All candidates were selected by the commission on May 7.

Under the Colorado Constitution, Governor Hickenlooper has until May 23 to appoint one of the nominees to the position of District Court Judge for the Twentieth Judicial District (Boulder County).

Tenth Circuit: Testimony of Victim’s Father Provided Sufficient Evidence to Conclude Victim Was Not an Indian for Purposes of Statute

The Tenth Circuit Court of Appeals published its opinion in United States v. Diaz on Tuesday, May 8, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner was convicted of knowingly leaving the scene of a car accident where she hit and killed a pedestrian. The accident occurred on the Pojoajue Pueblo Indian reservation. She was charged with committing a crime in Indian Country. On appeal, among other issues, Petitioner contended that the federal court lacked jurisdiction over the crime because the government failed to prove that the victim was not an Indian, a jurisdictional requirement.

The Court concluded that the government met its burden of proof. The testimony of the victim’s father provided enough evidence for a jury to conclude the victim was not an Indian for purposes of the statute. The Court also concluded that the district court did not err in its rulings on various other evidentiary and trial issues.

Tenth Circuit: Issue Preclusion Based on Immigration Judge’s First Decision Is Unavailing Because Collateral Estoppel Does Not Apply

The Tenth Circuit Court of Appeals published its opinion in Shepherd v. Holder, Jr. on Tuesday, May 8, 2012.

The Tenth Circuit dismissed the petition for review. “This case is about the government’s repeated efforts to remove Petitioner from the United States on the ground she is a criminal alien. In the initial removal proceeding, the government did not effectively contest [Petitioner]’s claim to automatic citizenship under the Child Citizenship Act of 2000 (CCA), and the Immigration Judge dismissed for lack of jurisdiction. The very next day, the government initiated a new removal proceeding, explaining to the same [judge] that it had made a mistake and now realized that [Petitioner] was too old to qualify under the CCA for citizenship. The [judge] eventually decided that his initial ruling precluded the government from relitigating [Petitioner]’s citizenship or alienage status, and he terminated the proceeding. The government successfully appealed to the Board of Immigration Appeals (BIA), which held that collateral estoppel did not apply and remanded to the [Immigration Judge], who ordered removal.”

On appeal, the Tenth Circuit had to decide whether it had jurisdiction under 8 U.S.C. § 1252(a)(2)(C), which limits judicial review of orders to remove criminal aliens and to “ascertain as a jurisdictional fact whether [Petitioner] is a citizen or an alien, using the procedures that Congress prescribed in 8 U.S.C. § 1252(b)(5) for that purpose.” The Court found that her alien status precludes the Court’s jurisdiction. Her issue preclusion argument based on the Immigration Judge’s first decision is unavailing because administrative collateral estoppel does not apply to the § 1252(b)(5) analysis. Accordingly, her petition for review.

Tenth Circuit: Unpublished Opinions, 5/8/12

On Tuesday, May 8, 2012, the Tenth Circuit Court of Appeals issued three published opinions and six unpublished opinions.


United States v. Geddes

Martin v. Matthews

Mehio v. Sonntag

Bowles v. Newth

Eissa v. Aetna Life Ins. Co.

Palacios-Yanez v. Holder, Jr.

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.