Punctuation is an elaborate cuing system by which you signal readers how to move smoothly through your sentences. Used properly, punctuation helps you achieve emphasis and clarity. Used improperly, it does just the opposite. In fact, punctuation problems are often a symptom of bad writing. As one authority observes, “most errors of punctuation arise from ill-designed, badly shaped sentences, and from the attempt to make them work by means of violent tricks with commas and colons. …”1 So learning punctuation is closely allied with learning to craft solid sentences. You can’t have one skill without the other. Hence the guidance below.
1. Comma—7 common uses, 5 common misuses
Using Commas
1.1 Use a comma when you join two independent clauses with a coordinating conjunction (such as and, but, or, nor, yet, or so).
• The United States is a common-law country, and its judges are common-law judges.
• About a dozen lawyers were in the room together, and the discussion was complete and candid.
• He entered a no-contest plea to possession of cocaine and drug paraphernalia, but the court withheld adjudication and sentenced him to one year on probation.
1.2 Use a comma after a transitional word or phrase (though not And or But), an introductory phrase (especially a long one), or a subordinate clause that precedes an independent clause.
• Significantly, Moore has not filed a cross-appeal. (Transitional word.)
• In the second Reynolds appeal, the majority opinion pointed out that experts frequently rely on comparable sales when appraising the value of property. (Introductory phrase.)
• When the court addresses the question of ambiguity, it must focus on the contractual language itself. (Subordinate clause.)
1.3 Use a pair of commas to mark the beginning and end of a nonrestrictive phrase or clause—that is, either an appositive or a phrase or clause that gives incidental or descriptive information that isn’t essential to the meaning of the sentence.
• A police officer, who is trained to overcome resistance, is likely to escalate force until the arrestee cannot escape without using deadly force. (Nonrestrictive clause.)
• Another authority, the court, has picked up some of the slack. (Nonrestrictive appositive.)
• The right allegedly violated in this case, freedom of speech as protected by the First Amendment, is one of our most fundamental constitutional rights. (Nonrestrictive appositive.)
1.4 Use a comma to separate items in a series—including the last and next-to-last.
• The term “reasonable doubt” is not designed to encompass vain, imaginary, or fanciful doubts. (Include the comma before or.)
• Jackson alleges that the October 2013 reassignment letter, the gag order, and the banishment order were implemented without affording her procedural due process. (Include the comma before and.)
• The scientific method has proved extraordinarily useful in matters involving radar, ballistics, handwriting, typewriting, intoxication, and paternity. (Include the comma before and.)
1.5 Use a comma to separate adjectives that each qualify a noun in parallel fashion—that is, when and could appear between the adjectives without changing the meaning of the sentence, or when you could reverse the adjectives’ order without affecting the meaning.
• That is a simplistic, fallacious conclusion.
• Routine, hasty processing of criminal cases did not begin with plea bargaining at all.
• Wilson is a reserved, cautious person.
1.6 Use a comma to distinguish indirect from direct speech.
• Justice Scalia ended by saying, “The decision is an act not of judicial judgment but of political will.”
• “Today, social workers provide a significant amount of mental-health treatment,” wrote Justice Stevens.
• On the question of statutory interpretation, there is an apocryphal story about a celebrated Supreme Court Justice who remarked, “Because no legislative history is available on this point, we will have to look at the text of the statute.”
1.7 Use commas to separate the parts of full dates and addresses, but (1) omit any comma before a ZIP code; (2) when writing just the month and the year, don’t separate them with a comma (July 2011); and (3) when writing the month, day, and year, omit the comma after the year if you’re using the date as an adjective (the November 20, 2010 hearing).
• Since July 15, 2011, Samuel Keeling has lived at 29 Cherry Street, Portland, Oregon 97203.
• Pollock wrote to them in April 2010 but never again.
• The court refused to reconsider its February 12, 2009 privilege order.
Preventing Misused Commas
1.8 Don’t use a comma between a subject and its verb.
• Not this: The use of the terms “irrebuttable presumption” and “conclusive presumption,” should be discontinued as useless and confusing. But this: The use of the terms “irrebuttable presumption” and “conclusive presumption” should be discontinued as useless and confusing.
• Not this: In that case, male teachers in a church-operated school, received a head-of-family salary supplement that was not provided to female heads of households. But this: In that case, male teachers in a church-operated school received a head-of-family salary supplement that was not provided to female heads of households.
• Not this: An insurance carrier or a union or union inspector, may be held liable under traditional tort concepts for the negligent performance of such an inspection. But this: An insurance carrier or a union or union inspector may be held liable under traditional tort concepts for the negligent performance of such an inspection.
1.9 Don’t use a comma to set off a quotation that blends into the rest of the sentence.
• Not this: If one doctrine is more deeply rooted than any other in constitutional adjudication, it is that the Supreme Court, “will not pass on questions of constitutionality unless such adjudication is unavoidable.” But this: If one doctrine is more deeply rooted than any other in constitutional adjudication, it is that the Supreme Court “will not pass on questions of constitutionality unless such adjudication is unavoidable.”
• Not this: In lease cases, the related doctrine of constructive eviction has been held, “broad enough to include many different situations where the whole or a substantial part of the premises is rendered unfit for the purpose for which it was leased.” But this: In lease cases, the related doctrine of constructive eviction has been held “broad enough to include many different situations where the whole or a substantial part of the premises is rendered unfit for the purpose for which it was leased.”
• Not this: The Obama administration joined in the petition on grounds that the Second Circuit’s decision would promote, “postemployment blacklisting.” But this: The Obama administration joined in the petition on grounds that the Second Circuit’s decision would promote “postemployment blacklisting.”
1.10 Don’t use commas to set off an adverb that needs emphasis.
• Not this: Defendants are, therefore, entitled to qualified immunity. But this: Defendants are therefore entitled to qualified immunity.
• Not this: We, nevertheless, wanted to bring this to the Court’s attention. But this: We nevertheless wanted to bring this to the Court’s attention.
1.11 Don’t use a comma in the second part of a compound predicate—that is, when a second verb has the same subject as an earlier one.
• A good brief should address all the issues and analyze them intelligently. (No comma before the and because brief is the subject of analyze.)
• Quintanilla argued that Viveros had exculpatory information and charged the prosecutors with ignoring it. (No comma before the and because Quintanilla is the subject of charged.)
• After surgery to his knee in May 2009, Rowe was first given light-duty assignment as a production planner but then was laid off in March 2010. (No comma before the but because Rowe is the subject of was laid off.)
1.12 Don’t use a comma as if it were a strong mark—a semicolon, colon, or period.
• Not this: One could view attendance at the football game as an alternative promise by Y, however, it seems readily apparent that this alternative is not a promise for which X has bargained. But this: One could view attendance at the football game as an alternative promise by Y; however, it seems readily apparent that this alternative is not a promise for which X has bargained. Or this: One could view attendance at the football game as an alternative promise by Y. But it seems readily apparent that this alternative is not a promise for which X has bargained. (The word however, within a pair of commas, cannot connect two independent clauses; a semicolon or period is needed.)
• Not this: The United Nations recognizes forced evictions as one of the root causes of international displacement of persons, “the two issues cannot be treated separately.” But this: The United Nations recognizes forced evictions as one of the root causes of international displacement of persons: “the two issues cannot be treated separately.” (The comma in the original sentence created a grammatical error known as a “comma splice”—joining two independent clauses with a comma.)
2. Semicolon—2 uses, 2 misuses
Using Semicolons
2.1 Use a semicolon to unite two short, closely connected sentences.
• In three-tier systems, the top court has tremendous discretion; it can usually decide which cases to hear and which to reject.
• One side must make an offer; the other side must accept it.
• A person who has been wronged often wants to win a fight; the sublimated courtroom fight may furnish the means of relief.
2.2 Use a semicolon to separate items in a list or series when (1) any single element contains an internal comma, (2) the enumeration follows a colon, or (3) the items are broken into subparagraphs.
• The individual defendants live in four cities: Austin, Texas; Bellingham, Washington; Boston, Massachusetts; and Denver, Colorado.
• The rationale is threefold: (1) since the declarant knows her own state of mind, there is no need to check her perception; (2) since the statement is of present state of mind, there is no need to check her memory; and (3) since state of mind is at issue, it must be shown in some way—and here, the declarant’s own statements are the only way.
• To establish causation and intention in emotional-distress cases, the plaintiff is generally required to show that
(1) the plaintiff was present when the injury occurred to the other person;
(2) the plaintiff was a close relative of the injured person; and
(3) the defendant knew that the plaintiff was present and was a close relative of the injured person.
Preventing Misused Semicolons
2.3 Don’t use a semicolon where a colon is needed—especially after a salutation.
• Not this: Dear Sarah; . . . But this: Dear Sarah: . . .
• Not this: Two major reforms took place; the overhaul of no-fault insurance and the enhanced oversight of insurance companies. But this: Two major reforms took place: the overhaul of no-fault insurance and the enhanced oversight of insurance companies.
2.4 Don’t use a semicolon where a comma will do—especially in a list with no internal commas.
• Not this: At common law, a corporation could be dissolved by an act of the legislature; the death of all members; the forfeiture of the franchise; or the surrender of the corporate charter. But this: At common law, a corporation could be dissolved by an act of the legislature, the death of all members, the forfeiture of the franchise, or the surrender of the corporate charter.
• Not this: The right of courts to refuse to enforce contract terms has been recognized for centuries; and fraud is one of the oldest doctrines used by the courts in this policing policy. But this: The right of courts to refuse to enforce contract terms has been recognized for centuries, and fraud is one of the oldest doctrines used by the courts in this policing policy.
3. Colon—4 uses, 1 misuse
Using Colons
3.1 Use a colon to link two separate clauses or phrases when you need to indicate a step forward from the first to the second—as when the second part explains the first part or provides an example.
• After two hours, they reconciled: the chef apologized, and the owner rehired him with a $10 raise.
• A trademark can be seen as an advertising idea: it is a way of marking goods so that they will be identified with a particular source.
• Even the stipulation did not extinguish Highland’s uncertainty about what it was buying: the precise scope of PetroLink’s compensatory and other duties remained in doubt.
3.2 Use a colon to introduce a list—especially one that is enumerated or broken down into subparagraphs.
• Each conspirator may be liable for the crimes of all other conspirators if two conditions are satisfied: (1) if the crimes were committed in furtherance of the conspiracy’s objectives and (2) if the crimes were a natural and probable consequence of the conspiracy.
• The seller may do any of four things: (a) withdraw and terminate the contract, while remaining free to sell the property elsewhere; (b) force the buyer to pay the price through an action for specific performance; (c) sue for actual damages; or (d) retain any down payment made by the buyer as liquidated damages.
• In the absence of an agreement to the contrary, the seller need not see that the goods reach the buyer but need only:
(a) put the goods into the hands of a reasonable carrier and make a reasonable contract for their transportation to the buyer;
(b) obtain and promptly tender any documents required by the contract or by trade usage to enable the buyer to take possession; and
(c) promptly notify the buyer of the shipment.
3.3 Use a colon to introduce a wholly self-contained quotation, especially a long one.
• Although some believe that lower courts are strictly bound by precedent, no matter how ill-fitting the result, Judge Learned Hand opposed this view:
It is always embarrassing for a lower court to say whether the time has come to disregard decisions of a higher court, not yet explicitly overruled, because they parallel others in which the higher court has expressed a contrary view. I agree that one should not wait for formal retraction in the face of changes plainly foreshadowed. But nothing has yet appeared to satisfy me that the case at bar is of that kind. Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine that may be in the womb of time, but whose birth is distant; on the contrary, I conceive that the measure of its duty is to divine, as best it can, what would be the event of an appeal in the case before it.
• In response to a public outcry over the Hinckley case, Congress substantially codified the McNaghten rules in statutory form:
It is an affirmative defense to a prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
• Molholt’s May 1 report states: “My first hypothesis was that if persons who were near the plant at the time of the accident can be shown to have chronic immunosuppression ten years later, then they must have been exposed to at least 100 rems during the accident.”
3.4 Use a colon after the salutation in correspondence. (A comma is acceptable in informal letters.)
• Dear Judge Reavley:
• Dear Ms. Grogan:
Preventing Misused Colons
3.5 Don’t use a colon to introduce a quotation or list that blends into your sentence.
• Not this: The real issue is what has been called: “the most difficult problem in criminal procedure today.” But this: The real issue is what has been called “the most difficult problem in criminal procedure today.”
• Not this: In this sense, there is much wisdom in the apparently extreme aphorism of Jefferson that: “every constitution naturally expires at the end of 19 years.” But this: In this sense, there is much wisdom in the apparently extreme aphorism of Jefferson that “every constitution naturally expires at the end of 19 years.”
• Not this: The House Report stated that the purpose of the legislation was:
to close the back door on illegal immigration so that the front door on legal immigration may remain open. The principal means of closing the back door, or curtailing future illegal immigration, is through employer sanctions. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens. And this, in turn, will deter aliens from entering illegally or violating their status in search of employment.
But this: The House Report stated that the purpose of the legislation was
to close the back door on illegal immigration so that the front door on legal immigration may remain open. The principal means of closing the back door, or curtailing future illegal immigration, is through employer sanctions. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens. And this, in turn, will deter aliens from entering illegally or violating their status in search of employment.
4. Parentheses—4 uses
4.1 Use parentheses to set off an inserted phrase, clause, or sentence that you want to minimize.
• If we increase the punishment, some people (not everybody) will stop doing the deed from fear of punishment.
• Once a child is born alive (assuming that the wife does not die in childbirth), the husband’s shared freehold is converted into a life estate in his own right in his wife’s freeholds.
• Sony and Toyota, if they were American companies, would have hundreds of lawyers on their payroll at their beck and call on Wall Street. (Maybe their American subsidiaries do.) Lawyers in the United States do things that are not done—or not done by lawyers—in Japan.
4.2 Use parentheses to introduce shorthand names.
• In the Controlled Question Technique (“CQT”), the test method that polygraph examiners use most often, an examiner asks three types of questions: neutral, control, and relevant. (The quotation marks within the parentheses are optional. An informal survey suggests that judges prefer them.)
• Sergeant Silk alleges that the City violated the Americans with Disabilities Act (ADA) by discriminating against him because of his sleep apnea. (Although quotation marks might be used—(“ADA”)—they are less common and less desirable around well-known shorthand names.)
• Petitioners Southeast Crescent Shipping Company and Southeast Crescent Terminal Company (collectively “Southeast”) are parties to a contract with the International Longshore Workers’ Association, Local 1492 (“the Union”).
4.3 Use parentheses around numbers or letters when you’re listing items in text.
• This Court has reviewed orders not specified in the notice of appeal when (1) there is a connection between the specified order and unspecified order, (2) the intention to appeal the unspecified part is apparent, and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.
• Ohio law recognizes a claim for invasion of privacy in a case of (1) the unwarranted appropriation or exploitation of one’s personality, (2) the publicizing of one’s private affairs with which the public has no legitimate concern, or (3) the wrongful intrusion into one’s private activities in a manner that outrages or shames a person of ordinary sensibilities.
• The court must determine the propriety of the remark by considering the following factors: (a) the nature and seriousness of the statement; (b) whether defense counsel invited it; (c) whether the district court sufficiently instructed the jury to disregard it; (d) whether defense counsel had the opportunity to respond to the improper statement; and (e) whether the weight of the evidence was against the defendant.
4.4 Use parentheses to denote subparts in a citation—or, in a case citation, to give information about the court and the year, an explanation about the holding or how the citation is relevant, or any explanation about how quoted text has been altered. Don’t worry about nesting parentheses within parentheses, but do make sure that each opening mark has a corresponding closing mark.
• Fed. R. Crim. P. 41(d).
• 12 U.S.C. § 1821(d)(11)(A).
• Fowlkes v. Thomas, 667 F.3d 270 (2d Cir. 2012) (per curiam).
5. Em-Dash (or Long Dash)—3 uses, 1 misuse
Using Em-Dashes
5.1 Use a pair of em-dashes to set off an inserted phrase that, because of what it modifies, needs to go in the middle of a sentence.
• The Declaration of Independence, in its expressive force binding all “governments’—national, state, county, and city—doesn’t declare itself to be “law.”
• The plaintiffs here—two young children and their parents—have sued the city for violations of their constitutional rights.
• The argument is that testimony from Chancey—if she had given it—would have been enough to get those statements into evidence as prior recollections recorded.
5.2 Use a pair of em-dashes to set off a parenthetical phrase that you want to highlight.
• Accident law—the heart of the legal field we call torts—is basically the offspring of the 19th-century railroad.
• The enumerated rights found in the Constitution and in our Bill of Rights—the first ten amendments—are insufficient to found a system broad and comprehensive enough for a really free people.
• The majority—as Justice John Marshall Harlan pointed out in his dissent—brushed aside evidence of subhuman work conditions.
5.3 Use an em-dash to tack on an important afterthought or to add emphasis to what follows.
• In 1992, it was reported that about 100,000 private security guards toted guns—more than the combined police forces of the country’s 30 largest cities.
• Overtime parkers now have to pay a big fine and run around the city to reclaim their cars—a colossal nuisance.
• The lawyers’ special province is not peopled with human beings in their full humanity, but with types—that is, with human beings only as they fit into legal categories.
Preventing Misused Em-Dashes
5.4 Don’t use more than two em-dashes in a sentence (and don’t use more than one unless they are used as a pair).
• Not this: In the several matters involved in the Noia case, the Supreme Court denied certiorari four times—the first of these in 1948—before it finally decided the case 15 years later—in 1963. But this: In the several matters involved in the Noia case, the Supreme Court denied certiorari four times—the first of these in 1948—before it finally decided the case 15 years later, in 1963.
• Not this: Normally there is no difficulty in ascertaining who is entitled to the property—but if there is difficulty—for example, because it isn’t known whether a missing beneficiary is alive or dead—the court may authorize the personal representative to distribute the estate on the assumption that a missing claimant is dead, or on some other reasonable assumption. But this: Normally there is no difficulty in ascertaining who is entitled to the property. But if there is difficulty—for example, because it isn’t known whether a missing beneficiary is alive or dead—the court may authorize the personal representative to distribute the estate on the assumption that a missing claimant is dead, or on some other reasonable assumption.
6. En-Dash (or Short Dash)—1 use, 1 misuse
Using En-Dashes
6.1 Use an en-dash as an equivalent of to (as when showing a span of pages), to express tension or difference, or to denote a pairing in which the elements carry equal weight.
• 233-34
• love-hate relationship
• contract-tort doctrines
Preventing Misused En-Dashes
6.2 Don’t use an en-dash in place of a hyphen or an em-dash.
• Not this: The state-court action disposed of her wrongful-discharge claim. But this: The state-court action disposed of her wrongful-discharge claim.
• Not this: The court upheld the wage-and-hour laws. But this: The court upheld the wage-and-hour laws.
• Not this: A knowledgeable bench can smooth the road for a sound-or a persuasive-argument. But this: A knowledgeable bench can smooth the road for a sound—or a persuasive—argument.
7. Hyphen—2 uses, 2 misuses
Using Hyphens
7.1 Use a hyphen to connect the parts of a phrasal adjective—that is, a phrase whose words function together to modify a noun.
• First-year law students are sometimes unready for their end-of-the-year doldrums. (First-year is a phrasal adjective modifying the noun phrase law students; end-of-the-year is a phrasal adjective modifying the noun doldrums.)
• The court applied the common-law mirror-image rule. (Both common-law and mirror-image are phrasal adjectives modifying rule. When used as a noun phrase, common law is unhyphenated.)
• The benefit-of-insurance clause and the waiver-of-subrogation clause were both held to be invalid because they conflicted with the plaintiff’s marine-cargo insurance policy. (Benefit-of-insurance is a phrasal adjective modifying clause; waiver-of-subrogation modifies clause; marine-cargo modifies the noun phrase insurance policy.)
7.2 Use a hyphen when spelling out fractions.
• Three-fifths of those present concurred.
• One-third of the punitive damages were eliminated by remittitur.
Preventing Misused Hyphens
7.3 Don’t use a hyphen after a prefix unless (1) the solid form might be confusing (e.g., anti-intellectual), (2) the primary word is capitalized, as when it’s a proper noun (e.g., non-Hohfeldian), (3) the prefix is part of a noun phrase (e.g., non-contract-law doctrine), or (4) the unhyphenated form has a different meaning (e.g., prejudicial vs. pre-judicial).
• Not this: The co-defendant was a non-practicing attorney. But this: The codefendant was a nonpracticing attorney.
• Not this: The co-tenant was unable to collect the semi-annual payments, even with post-judgment garnishments. But this: The cotenant was unable to collect the semiannual payments, even with postjudgment garnishments.
• Not this: The nonMarxist point of view ultimately prevailed. But this: The non-Marxist point of view ultimately prevailed.
7.4 Don’t use a hyphen (or even a pair of hyphens) in place of an em-dash or an en-dash.
• Not this: Frequently both sides will let a neutral third person - an arbitrator - make final decisions. But this: Frequently both sides will let a neutral third person—an arbitrator—make final decisions.
• Not this: The correctional complex--the latest trend in federal corrections--is a series of several institutions on one enormous plot of land. But this: The correctional complex—the latest trend in federal corrections—is a series of several institutions on one enormous plot of land.
8. Quotation Marks—6 uses, 2 misuses
Using Quotation Marks
8.1 Use quotation marks when you’re quoting a passage of 50 or fewer words. (Otherwise, set off and indent the quotation.)
• Vitalone’s supervisor told him that he would be “out the door” if he complained one more time about Plourde. (The writer is quoting the supervisor.)
• Within earshot of both parents and pupils, Hennessy called the exhibition “disgusting” and the Cesaro painting “obscene” before leaving in the middle of class. (The writer is quoting Hennessy.)
• A quarter-century ago, Justice Powell wrote: “The Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.”
8.2 Use quotation marks when (1) referring to a word as a word or a phrase as a phrase (although italics are better if you do this frequently) or (2) providing a definition.
• The word “malice” contains an ambiguity.
• Both circuit courts turned to the legislative history to determine the meaning of the phrase “value as of the effective date of the plan.”
• “Joinder” means “the uniting of parties or claims in a single lawsuit.”
8.3 Use quotation marks when you mean “so-called” or “self-styled,” or even “so-called-but-not-really.”
• Certain forms of expression have been described as “illusory promises.” (The quotation marks mean “so-called.”)
• Jack Burke, a “cable troubleshooter,” questioned Veazey about the message. (Here the quotes mean “self-styled”; Burke calls himself a “cable troubleshooter.”)
• Immense effort has been made to discover the “origin” of the concept of consideration, to construct the “correct” definition of consideration, and to express in words the true consideration “doctrine” by means of which the enforceability of informal promises can be determined. But there is no specific and definite “origin” to be discovered; no particular definition can be described as the only “correct” one; and there never has been a uniform “doctrine” by which enforceability can be deductively determined. (The quotation marks show that the writer questions the accuracy of the words.)
8.4 Although quotation marks are traditionally used for titles of movies, songs, and poems (as well as articles), follow the standard form for legal citations. Consult the Bluebook (19th ed. 2010) or the ALWD Citation Manual (4th ed. 2010).
• In the screenplay “Concealed,” Marty obtains information from an elderly retired city clerk who sells tomatoes.
• In his article entitled “Supply-Side Journalism,” Seth Ackerman argues that the German welfare state has become so elaborate and labor costs so expensive that companies can’t afford new workers.
• The wording was intended as an allusion to John Donne’s poem “Death Be Not Proud.”
8.5 Use single quotation marks for quoted words within quotations.
• In that case, the plaintiff saw the driver coming and attempted to flee, but he was unable to get out because “the door to the booth was ‘jammed and stuck,’ trapping the plaintiff inside.” (The court’s language goes from the door to inside, but the court has quoted testimony in the phrasing jammed and stuck.)
• Judge Charles E. Wyzanski Jr. has observed of Justice Holmes: “His starting point was an awareness that ‘the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil.’” (Here the writer quotes Holmes’s words in addition to Wyzanski’s.)
• “ ‘[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil.’ ” (Here the writer quotes Wyzanski quoting Holmes, but without using any of Wyzanski’s words. It would be better, if possible, to quote Holmes directly—to find the original source and verify the quotation. Otherwise, this form is necessary. The citation will be to Holmes “as quoted in” Wyzanski’s book, or to Wyzanski “quoting Holmes.”)
8.6 Place quotation marks correctly in relation to other punctuation: (1) periods and commas go inside; (2) colons and semicolons go outside; and (3) question marks and exclamation points go either inside or outside, depending on whether they’re part of the quoted matter.
• The police officer testified that Jensen seemed “nervous,” adding that at one point he seemed “jittery to the point of arousing a sense of alarm.”
• The written review of Eversham’s performance stated that “well-thought-out analysis was lacking”; that his understanding of financial analysis was “a major weakness”; and that he had a “tendency to bulldoze people.”
• Did Pullman really attribute the decline to “poor sales projections”? But: Pullman asked, “Did I really say that?”
Preventing Misused Quotation Marks
8.7 Don’t use quotation marks for a phrasal adjective.
• Not this: This “declining interest rate” scenario seems unlikely. But this: This declining-interest-rate scenario seems unlikely.
• Not this: According to the “fraud on the market” theory, if the market itself is defrauded by misrepresentations, then plaintiffs who relied on the integrity of the market price when buying securities have presumptively relied on those misrepresentations. But this: According to the fraud-on-the-market theory, if the market itself is defrauded by misrepresentations, then plaintiffs who relied on the integrity of the market price when buying securities have presumptively relied on those misrepresentations.
8.8 Don’t use quotation marks merely to emphasize a word.
• Not this: There is not “any” evidence of this behavior. But this: There is not any evidence of this behavior.
• Not this: Although the Bertelsby Company “claims” to have been harmed, it has produced no evidence to date. But this: Although the Bertelsby Company claims to have been harmed, it has produced no evidence to date.
9. Ellipsis Dots—3 uses
9.1 Use three ellipsis dots to denote that you’ve omitted something from within a sentence.
• “Statutes in most states . . . require the landlord to put the tenant in actual possession of the premises at the beginning of the leasehold term.” (The quoter has deleted the phrase with but a few exceptions, which in the original was enclosed in a pair of commas.)
• “The immediate claimants have to be viewed . . . as members of classes whose contours are by no means self-evident.” (The quoter has omitted the words in other words, which in the original were enclosed in a pair of commas.)
• “In presenting a few of the recognized authority techniques . . . , the author tried to group and phrase them in a way that shows how many distinct aspects of a case or of a doctrine there are.” (The quoter has omitted the words at page 77, which in the original were enclosed in a pair of commas. The second comma is retained as specified in rule 1.2.)
9.2 Use four dots—three ellipsis dots plus a period—when you’ve omitted something at the end of a sentence. (A space goes before the first ellipsis dot.)
• “An arrest is neither a conviction of a crime nor even a final formal charge of a crime. . . .” (The original sentence continued with the words “but is merely an order holding a person in custody until he or she answers a complaint.”)
• The court held that this “discrimination based on union activity constitutes an unfair labor practice. . . .” (The original sentence continued with the words “under NLRA §§ 8(a)(1) and (3), 29 USC §§ 158(a)(1) and (3).”)
• “The 10-K reports of these companies made no reference to this investigation. . . .” (The original sentence continued with the words “but affirmatively asserted various other matters.”)
9.3 Use four dots—a period plus three ellipsis dots—when you’ve omitted material following a sentence, but the quotation continues. (No space goes before the first dot [the period].)
• “Seeking the admission of video and photographs of a witness is hardly unusual. . . . [A]ttacking a witness’s demeanor, if relevant, is a fully acceptable and expected litigation tactic.” (The original passage reads: “Seeking the admission of video and photographs of a witness is hardly unusual. Although to seek the admission of this evidence solely so that the witness is made to appear ‘evil’ may cross the line, there is nothing in the record that shows this purpose. On the contrary, attacking a witness’s demeanor, if relevant, is a fully acceptable and expected litigation tactic.”)
• “The American court system is complex. Each state runs its own separate system of courts; no two state systems are exactly alike. . . . What makes matters even more mixed up is the double system of courts in this country: state and federal.” (In the original passage, this additional sentence came where the ellipsis dots now appear: “The details of court structure can be quite technical and confusing, even to lawyers.”)
• “The Council of State Governments has proposed, and a number of state legislatures have approved, three constitutional amendments. . . . These proposals, clearly a reaction against recent decisions of the Supreme Court, reflect a spirit of localism for whose counterpart we would have to look to the sectional struggles before the Civil War or even to the position of the states under the Articles of Confederation.” (The quoter has omitted a complete sentence where the ellipsis appears.)
10. Apostrophe—2 common uses, 2 common misuses
Using Apostrophes
10.1 Use an apostrophe to indicate the possessive case.
• The district court’s refusal to give a requested jury instruction is reviewed for an abuse of discretion.
• She insisted that she had had no knowledge of the methamphetamine concealed in the truck’s gas tank.
• The staffers’ responsibility was to handle both agencies’ telephone calls, including the three calls that originated from the Lopezes’ home.
10.2 Use an apostrophe to mark the omission of one or more characters, especially in a contraction.
• You won’t drive the nail straight if you don’t hold it straight, and so also you won’t achieve an effective system of law unless you give some heed to principles of legality.
• Many lawyers use these estate-planning solutions, and many who don’t use them don’t understand why they don’t.
• Back in the late ’80s, the claimant was stopped at two o’clock in the morning for driving under the influence.
Preventing Misused Apostrophes
10.3 Generally, don’t use an apostrophe to form a plural. (But dot your i’s and cross your t’s.)
• Not this: The evidence showed the applicant’s intent to adopt a mark that suggests to purchaser’s a successful mark already in use by another. But this: The evidence showed the applicant’s intent to adopt a mark that suggests to purchasers a successful mark already in use by another.
• Not this: The Smith’s will attend the Jones’ open house. But this: The Smiths will attend the Joneses’ open house.
• Not this: In the 2010’s no zone is so intimate, personal, or private that it is immune from the staring eye of the law. But this: In the 2010s no zone is so intimate, personal, or private that it is immune from the staring eye of the law.
10.4 Don’t drop necessary apostrophes.
• Not this: Jean Forney then visited one of the hotels many shops. But this: Jean Forney then visited one of the hotel’s many shops.
• Not this: Reynolds went immediately to the Johnsons house. But this: Reynolds went immediately to the Johnsons’ house.
11. Question Mark—1 use, 1 misuse
Using Question Marks
11.1 Use a question mark after a direct question.
• Does it make sense to talk about evolutionary change in the history of law?
• When is there no right answer to a question of law?
• In determining a contract’s “plain meaning,” should a court look to general linguistic usage in the nation or in the particular locality? Should the court consider meanings attached to words by people in a particular occupation, religion, or ethnic group? Which meaning should be used if M and X are not members of the same group? Should this question be resolved on the basis of which party had superior knowledge, charging that party with knowledge of the meaning that the other side might attach to the language?
Preventing Misused Question Marks
11.2 Don’t use a question mark after an indirect question.
• Not this: She asked whether anyone present had seen the accident? But this: She asked whether anyone present had seen the accident.
• Not this: He wondered whether the weapon in question was the one he had confiscated from the athletic dorm? But this: He wondered whether the weapon in question was the one he had confiscated from the athletic dorm.
12. Exclamation Point—1 use, 1 misuse
Using Exclamation Points
12.1 Use an exclamation point after an exclamatory word, phrase, or sentence—especially when quoting someone else.
• Before plunging into the sea, the captain shouted, “We’re going over now! ”
• Within seconds, there were cries: “Help! Man overboard!”
Preventing Misused Exclamation Points
12.2 Generally, don’t use an exclamation point to express your own surprise or amazement.
• Not this: Yet they can’t support this argument! But this: Yet they can’t support this argument.
• Not this: Despite this overwhelming precedent, the court held otherwise! But this: Despite this overwhelming precedent, the court held otherwise.
13. Period—3 uses
13.1 Use a period to end a sentence that is neither a question nor an exclamation.
• European legal scholars make much of the distinction between public and private law.
• But as many common-law scholars have pointed out, the distinction seems less and less relevant as time goes on.
13.2 Use a period to indicate abbreviations such as Mr. , Ms. , Mrs., etc.
• This theory was first put forward by Dr. Jurgen Schafer.
• Though she had a PhD, she preferred to be called “Ms. Wheelock.”
13.3 Put the period outside parentheses or brackets that enclose only part of a sentence, but inside parentheses or brackets that enclose a complete sentence.
• The Court has upheld a statute prohibiting local casinos from advertising in a way that encourages residents to visit the casinos (as opposed to encouraging tourists).
• A will has no effect on joint-tenancy property because the will is purely a testamentary conveyance (effective only at death, at which time the decedent’s rights in the property evaporate).
• A plaintiff who establishes negligence but not malice also has to provide competent evidence of actual damages. (This changes the common-law rule that damages would be presumed by law for injury to reputation and did not require proof.) Actual damages may be awarded not only for economic losses but also for injury to the plaintiff’s reputation in the community and for personal humiliation and distress.
14. Brackets—3 uses, 1 misuse
Using Brackets
14.1 Use a pair of brackets in a quotation to enclose an editorial comment, correction, explanation, interpolation, substitution, or translation that was not in the original text.
• “The action arose ex delicto [in tort], not ex contractu [from a contract].” (The quoter has supplied translations.)
• Justice Rehnquist, for the Court, declared: “We hold that insofar as [the federal provisions] directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted to Congress.” (The quoted matter originally used the word they; the quoter has substituted the federal provisions.)
• Maldanado is responsible for all “drugs [she] personally handled or anticipated handling and for drugs involved in additional acts that, being reasonably foreseeable by [her], were committed in furtherance of the conspiracy.” (The quoted matter originally used the words he and him—the pronouns used in the statute; the quoter has substituted she and her.)
14.2 Use a pair of brackets around any character that you change in or add to quoted material.
• The search-warrant requirement arose from the Founders’ understanding that “[p]ower is a heady thing, and history shows that the police acting on their own cannot be trusted.” (In the quoted material, Power began the sentence and was uppercase.)
• The court also cautioned that any interpretation should guard against “chang[ing] the meaning, since this would go beyond mere interpretation.” (In the quoted material, the phrase was “We caution that courts must not change the meaning. . . .”)
• As Justice Rehnquist said in dissent in Kassel, the Court’s present balancing approach “arrogate[s] to this Court functions of forming public policy, functions that, in the absence of congressional action, were left by the Framers of the Constitution to state legislatures.” (The quoted matter used the word arrogated; the quoter has changed the word to arrogates to fit the syntax.)
14.3 Use a pair of empty brackets to show the deletion of part of a word.
• The Supreme Court has repeatedly held that an essential function of the warrant is to “assure[] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” (The quoted material actually used the form assures.)
• When a case becomes moot, the federal courts “lack[] subject-matter jurisdiction over the action.” (The quoted material actually used the singular lacks after the singular subject a federal court.)
Preventing Misused Brackets
14.4 Don’t use brackets in place of ellipsis dots when one or more words have been deleted without any replacement language.
• Not this: “Although [] Jackson need not show a significant injury, he must have suffered at least some injury.” But this: “Although . . . Jackson need not show a significant injury, he must have suffered at least some injury.” (Several words have been deleted: despite the foregoing arguments.)
• Not this: “Several states provide by statute that compliance with applicable governmental statutes creates [] a presumption that the defendant exercised due care.” But this: “Several states provide by statute that compliance with applicable governmental statutes creates . . . a presumption that the defendant exercised due care.” (Several words have been deleted: some legal implications, most importantly.)
15. Slash (Virgule)—4 uses, 1 misuse
Using Slashes
15.1 Use a slash to separate the numerator from the denominator in a fraction.
• 1/4
• 15/365
15.2 Use a slash to separate alternatives (but remember to avoid and/or).
• The January/February issue is devoted to drafting better corporate documents.
• The employee/independent-contractor issue needs close consideration.
• The violent/nonviolent nature of the threat is often a determining factor.
15.3 In informal writing, use a slash as a shorthand signal for “per.”
• 2,000/year
• $100/hour
15.4 In informal writing, use a slash to separate the elements in a date.
• 11/17/58
• 1/1/00
Preventing Misused Slashes
15.5 Don’t use a slash when an en-dash or a hyphen would suffice.
• Not this: An essential element of the employer/employee relationship was lacking. But this: An essential element of the employer-employee relationship was lacking. (An en-dash works here because the employer and the employee aren’t the same.)
• Not this: The lawyer/consultant worked for the company for no more than two months. But this: The lawyer-consultant worked for the company for no more than two months. (A hyphen works well here because lawyer and consultant refer to a single person.)