At a cocktail party, verb tense errors may or may not matter. Fellow guests probably won’t remember how you spoke anyway.

When construing statutes and other binding documents, courts have cared about verb tense. For example, the U.S. Supreme Court said, “Congress’ use of a verb tense is significant in construing statutes.”  United States v. Wilson, 503 U.S. 329, 333, (1992). 

That makes sense because verb tense indicates timing, which certainly can affect cases involving a condition that triggers a right or duty.

Obviously, lawyers who draft binding documents need to understand verb tense to draft precisely.  So do lawyers who don’t draft binding documents but who challenge or defend them on a client’s behalf.

Lawyers seeking guidance from case law (as most of us do) need to understand verb tense if only to understand court opinions that address verb tense.  Lawyers who skim past paragraphs containing grammar jargon may miss information about a court’s reasoning.

For good measure, here are two more examples of courts’ addressing a verb’s tense:

(1) A U.S. Supreme Court case involving a criminal conviction under the Sex Offender Registration and Notification Act (Carr v. United States, 560 U.S. 438, 448 (2010)).

(2) A Florida Supreme Court case involving a gambling-permit statute (License Acquisitions, LLC v. Debary Real Estate Holdings, LLC, 155 So. 3d 1137, 1145 (Fla. 2014), reh’g denied (Jan. 16, 2015)).

A multi-jurisdictional West search for “verb tense” will render many cases in which the tense was discussed.  Of course, verb tense doesn’t  matter in all court cases. But tense and other grammatical issues can matter–and when they do, they can be costly to clients.

Verb-tense unawareness is risky.  Fortunately, lawyers who need to refresh their recollection can do it easily.  It’s as simple as buying a reputable grammar book, such as Harbrace, and spending a little time reading about the topic.  Older editions of Harbrace are not expensive on Amazon.

Around the Blogosphere:

A $7.5 million, Four-Letter Word: Preventing (or Benefiting from) Word-Choice Errors in Contracts & Legislation

“Founding Mother” of Legal Writing Has Died

Mistakes that Spell-Checking Won’t Find

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Deborah Cupples

Deborah Cupples is a Master Legal Skills Professor at the University of Florida’s Levin College of Law, where she teaches legal drafting. She has also taught courses in statutory interpretation and drafting, constitutional interpretation and revision (Florida), and art law. Her expertise lies in legal-document drafting (primarily contracts and legislation) and contract negotiation.

She has co-authored two books: one on legal drafting and one on grammar and style for lawyers. Prior to joining the UF Law faculty in 2008, Cupples worked as an attorney in private practice. She continues to do pro-bono work through the Southern Legal Counsel and to work as a legal consultant.

She earned her B.A., M.A., and J.D. degrees all from the University of Florida.

Visit her Faculty Profile.


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