As longtime readers have no doubt picked up, I’ve got sort of a distinctive writing style for legal writing. If I had to characterize it, I’d say that it falls somewhere between “prickly” and “shrill.” Short sentences are crucial to this style, such as it is, both because they keep the pace moving and because I am unable to keep big ideas in my head for very long. Shrieking italics also help me to get my important points across.

It’s not easy to write these short, overheated sentences. I often have to start with a coordinating conjunction like “but,” “and,” or “so.”

This almost never poses a problem. But from time to time–and especially when I am coordinating with trial counsel–I’ll get comments back on a draft that seek to reword every one of these sentences. I push back gently, but usually wind up accepting the revisions–partly because the customer is always right, partly because I’m a pushover, and partly because I can’t really justify billing a client for debates over grammar.

In the course of these discussions, I’ve learned that a startling number of lawyers are convinced to a moral certainty that you can’t begin a sentence with “but” or “and.”

Applesauce. There’s no such rule.

Grammar Girl covers this issue thoroughly. Unfortunately, citing a Grammar Girl podcast doesn’t pack quite the persuasive weight that it  should, at least in highfalutin’ debates among educated professionals. So I’ve gone up a level: I purchased a copy of the 1965 edition of Fowler’s Modern English Usage. Why the 1965 edition? I really don’t know. I once heard (or read?) Bryan Garner insist on the Second Edition above all others as the definitive guide to English as she is spoke. Used copies are readily available on Amazon. I got mine for about $3.00. On Stephen King’s recommendation, I also picked up Warriner’s English Composition and Grammar for a similar price.

But I digress. Here is what the wise and wonderful H.W. Fowler has to tell us from beyond the grave about starting a sentence with “and”:

And beginning a sentence. That it is a solecism to begin a sentence with and is a faintly lingering SUPERSTITION. The OED gives examples ranging from the 10th to the 19th c.; the Bible is full of them.

(A “solecism” is “a mistake in speech or writing.” Yes, I had to look that up.) The superstition may have been “faintly lingering” fifty years ago, but lawyers are clinging to it like that extra space after a period and the uber-weird multiple indent at the start of a paragraph.

If Fowler’s not good enough for you, Grammar Girl pulled this zinger from the Chicago Manual of Style:

There is a widespread belief—one with no historical or grammatical foundation—that it is an error to begin a sentence with a conjunction such as and, but or so. In fact, a substantial percentage (often as many as 10 percent) of the sentences in first-rate writing begin with conjunctions. It has been so for centuries, and even the most conservative grammarians have followed this practice.

Still not convinced? In The Redbook: A Manual on Legal Style, our man Bryan Garner says:

When appropriate, use a coordinating conjunction to begin a sentence to emphasize contrast (but, yet), additional support for a proposition (and), an alternative (or), or a logical conclusion (so).

Finally, in Point Made: How to Write Like the Nation’s Top Advocates, Ross Guberman devotes a whole chapter to the one-syllable opener. He offers examples of sentences starting with “but” and “and” from the likes of John Roberts, Miguel Estrada, and Elena Kagan.

So there you have it: ample authority to justify your next punchy sentence.

. . . or at least, the author of the “bad-man theory” of the law. I was delighted to learn that Oliver Wendell Holmes, Jr., has his own wikiquote page. Here are some of his inspirational musings, which are sure to brighten your day:

1. One has to try to strike for the jugular and let the rest go.
2. A page of history is worth a volume of logic.
3. Lawyers spend their professional careers shoveling smoke.
4. A good catchword can obscure analysis for 50 years.
5. The only simplicity for which I would give a straw is that which is on the other side of the complex — not that which never has divined it.
6. A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.
7. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.
8. State interference is an evil, where it cannot be shown to be a good. [Except when forced sterilization is involved–see item 9, below.]
9. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind….Three generations of imbeciles are enough.
10. Get down, you fool! [A timely  suggestion to President Lincoln, who came under fire at Fort Stevens.]

Not the same greenway that we’re talking about, but you get the idea.

The scariest moment in my life happened a few years ago. I’d taken Caroline and Jack down to the greenway, Roanoke’s riverside mixed-use path. It was a bright, cold day. Caroline was rambling along on her ridiculous Dora the Explorer bike, which was already two sizes too small. Jack had outgrown his balance bike but wasn’t yet comfortable enough to ride his bmx in traffic, so he was driving some scooter thing. I was bringing up the rear. The kids were, for the most part, under control and sticking to the right side of the path.

We were headed along a straightaway when Jack started to veer onto the left side of the path–and directly into the path of a large man on a road bike. You can probably see him already in your mind: spandex head to toe, like he was ready for the Tour. Maybe he felt like he was in the Tour, because it looked like he was pushing 20-25 mph. And he wasn’t slowing down. That didn’t really matter, because given the speeds and distances involved, he wasn’t going to be able to slow down. I caught Jack and dragged him out of the guy’s path just in time. If they’d collided, I swear the rider would have cut Jack in half.

Now, I say this as an avid cyclist and runner who uses the greenway on a regular basis: That rider was a clown. I know that Jack should have been on the right side of the path. So what? He was three or four years old and maybe 35 pounds. The cyclist had a duty to pay attention and keep his bike under control.

It still burns me up just thinking about it.

So fast forward to last week, when the Roanoke Times ran this article about a cyclist who won a $300,000 verdict after colliding with a runner. You can imagine that I was primed to have a negative reaction. But I read the article and didn’t see much of anything to get upset about.

Then I checked out the comments.

You should check out the comments. They’re nuts. Here’s a personal favorite:

WHY IS EVERYTHING ABOUT “IT’S THE OTHER GUYS FAULT”. PERSONAL RESPONSIBILITY IS OBSOLETE. ALSO, OUR TORTE SYSTEM INVITES SUCH AN ATTITUDE. SHAME ON THIS JURY! SHAME ON THE BICYCLIST! SHAME ON THE BOTTOM FEEDING ATTORNEY THAT INITIATED THE ACTION! MONEY…MONEY…MONEY!

Here’s another:

This makes me sad. Sad for this poor man. Sad that savvy bloodthirsty attorneys have the know how to pick out and seat the dumbest, most incopetant, and gullible juries; and guarantee an unjust verdict. I’m disgusted.

To be sure, these are some of the more strident comments. They’re not fairly representative of all of the comments in tone, but they do highlight some themes that run through a lot of the responses–and some of the comments I’ve heard on the street over the past week or so.

I’m afraid that the people raising these complaints are missing a few key points. In no particular order:

First, they don’t know anything about the case. That’s not their fault. One of the most notable features of the article is that it doesn’t summarize the evidence the jury heard. The reporter cites pleadings, motions, and out-of-court statements by the lawyers. But that wasn’t the case the jury heard. As a result, there’s nothing in the article that can fairly be read to suggest that the jury made a mistake, let alone that the jurors was incompetent or gullible. For example, the commentariat seems skeptical that the runner turned without looking. One commenter even thinks that the plaintiff should be held in contempt for lying on this point. But let’s give the jury a little credit. For all we know, the runner admitted that he turned without looking. People do have a refreshing tendency to tell the truth under oath.

It’s clear that plenty of people are upset about this result. But they’re upset about a mental picture that they’ve created about the case, without hearing the evidence. The case they’re complaining about may have little in common with the one that the jury actually heard.

Second, the lawyers involved in this case aren’t bottom feeders or monsters. I know  both of them. In fact, when I had to arrange a CLE  for the local Inn of Court a few years ago, I lined the two of them up to deliver a mock motions argument. I did that because they’re experienced and respected advocates. In particular, I’m confident that nobody in this case tricked the jury, packed it with fools, or snuck anything by defense counsel. The defendant’s lawyer is an AV-rated former president of the Virginia State Bar and a permanent member of the Fourth Circuit Judicial Conference. He is not, as they say, a potted plant.

Third,  there was a judge in the courtroom. He does this stuff for a living. Turns out that I know him, too. (Lots of name dropping in this post.) He is an excellent judge and, like defense counsel, he is not shrubbery. The article specifically notes that the judge found sufficient evidence of negligence to submit the case to the jury. This implies that the defense tested that evidence with a motion to strike. If so, the plaintiff’s case made it by both the defense and the judge on its way to the jury–which suggests that there was something to it.

Fourth, let’s be clear about what the jury found, and let’s try to put it in plain English. This appears to have been a straightforward negligence case with a contributory-negligence defense. As far as we can tell from the story, after hearing the evidence, the jury concluded that:

1. The runner probably acted in an unreasonably dangerous manner (apparently by failing to keep a proper lookout);
2. The runner’s (probably unreasonable) actions probably caused injury to the cyclist; and
3. $300,000 was a reasonable estimate of the injuries that the cyclist suffered.

Also, the runner did not convince the jury that it was more likely than not that the plaintiff behaved unreasonably, and that her unreasonable behavior caused her damages. That’s it. The jury did not find that the runner was a bad person. It did not impose a per se rule that will make the greenway wildly dangerous for pedestrians or cause insurance premiums to skyrocket. It just listened to the evidence in this case, heard some instructions from the judge, and reached a few factual conclusions.

Nothing about those conclusions strikes me as offensive or wildly improbable.

The comments include sentiments like “I find it odd that a jury would be able to be convinced beyond a shadow of a doubt that the cyclist in no way contributed to her injuries.” That very well might be odd, but there’s no indication that it happened here. This wasn’t a criminal case. Nobody tried to prove anything beyond a reasonable doubt. The cyclist had to prove that the runner owed her a duty to exercise reasonable care, that he breached that duty, and that his breach of the duty caused her injury. She didn’t have to disprove the defendant’s assertions; the defendant had the burden of proving them. And when we talk about “proof” in a civil case like this, we’re just talking about proving that something is probably true–think “more likely than not,” rather than “beyond the shadow of a doubt.” When you think about what the jury actually did, it’s hard to get all that worked up.

Fifth, many of the comments suggest that somebody (or everybody) is acting in bad faith. The plaintiff’s lawyers put her up to it. Or she’s just out for the money. Or she’s lying. I don’t accept that, at all. In a PI case like this, both the plaintiff and the defendant are trying to work through one of the worst days of their respective lives.  They both hire lawyers to help them through the process, and they bring their claims to a judge and jury. These are all ordinary folks just trying to do the best they can in a difficult situation. Nobody is there for fun. The $300,000 the plaintiff won is not a jackpot; it’s compensation for damages that she actually suffered and proved to the jury–things like medical bills, lost wages, and pain and suffering. (Again, we don’t know the specifics because we don’t know the facts of the case.) It’s just intended to get her back to zero after the losses she suffered.

tl;dr This a lousy situation. But it’s not a lousy situation because someone won money, or because lawyers are vampires, or because your insurance rates will go up (they won’t), or because you can’t use the greenway anymore (you can). It’s a lousy situation because two people had a really bad day and someone got hurt. They hired lawyers, who worked the case up and brought it to a judge and jury. The members of the jury took two days out of their lives–away from their families, jobs, and friends–to listen to the evidence and deliver a verdict. There’s no indication that they did anything other than they best they could, given the situation. And like everyone else involved in the case, they deserve better than the treatment they’re getting.