Writing that Works: That, Which, Who and Whom
Does Anyone Really Care? (Spoiler: Yes)
Over my years of teaching legal writing, I’ve struggled to carve out time to cover grammar and usage. I don’t think it’s the highest and best use of class time, and it certainly isn’t the most interesting. I do require my students to buy a good legal writing style manual,[i] and I encourage them to carefully review the sections on grammar and usage. I also note errors of grammar and usage in their submissions.
Most of my students understand the importance of correct grammar and usage in legal writing and work hard to achieve it. But every now and then, a student will ask a question along the lines of this one: “Does anyone really care about a little grammar mistake?”
A tweet I saw this morning proves that at least one judge does: Judge Richard G. Taranto of the Federal Circuit Court of Appeals. On January 29, Judge Taranto issued a correction to an opinion he authored that had been filed two days before. The correction read as follows: “On page 2, line 27, ‘PRC, that’ is changed to ‘PRC, which’”.[ii] Because I’m a grammar nerd, of course this tweet piqued my interest, and I hopped onto Westlaw to look up the opinion. This was the offending sentence: “In that review, Commerce investigated the dumping margin of Bosun Tools Co., Ltd. (Bosun), an exporter and producer of diamond sawblades from the PRC, that it sends directly to one of its two U.S. importer-affiliates for sale to unaffiliated U.S. purchasers.”
Was Judge Taranto just being pedantic in insisting that the court’s opinion correctly use which instead of that? I don’t think so. I think his correction reflects pride of authorship and an attention to detail that every legal writer should cultivate. Correct grammar and usage (and punctuation and spelling and format, too) signal that the writer is attentive to details and respectful of the reader. I like to think that no judge would assess the merits of a brief based solely on whether its grammar and usage are flawless. But as I always explain to my students, the cumulative effect of errors in grammar, usage, punctuation, spelling, and format is to diminish the reader’s perception of the writer’s credibility. So in that sense, yes, readers do care.
And with that (and a tip of the hat to Judge Taranto), I offer you this short refresher on the correct use of that, which, who, and whom.[iii]
I’ll begin by noting that my go-to legal writing manual, The Aspen Handbook for Legal Writers, devotes almost four full pages to the subject. The author acknowledges that because writers are often confused about the distinction between that and which, “many writing texts have relaxed the rules” about the distinction.[iv] But she goes on to reiterate the wisdom of using the words correctly in legal writing because of the precision the genre requires.[v]
The Aspen Handbook explains the distinction as follows:
That is used to introduce a restrictive clause (one that is not necessary to the meaning of a sentence) and is not preceded by a comma. Which is nearly always used to introduce a nonrestrictive clause (a clause that is not necessary to the meaning of a sentence and that can be omitted without changing the meaning of the sentence). A which clause is usually preceded by a comma.
- The use of that or which depends on the writer’s intent. If the writer wishes to convey essential information, that should be used to introduce the information. If the writer intends to add to, limit, or define information, which should be used to introduce the information.
Clear as mud, right? Fortunately, the Handbook offers some clarifying examples and explanations.[vi]
- Example: Jack had one car that was in the repair shop.
(Jack had several cars, but the writer is referring specifically to the one that was in the repair shop. Removing the that clause would change the meaning of the sentence. Note: There is no comma before that.) - Example: Jack had one car, which was in the repair shop.
(Jack had only one car, and it was in the repair shop. The clause defines information, but it could be removed without changing the meaning of the sentence. Note: A comma precedes which.) - Example: The corporation that was formed in Delaware has no assets.
(There may be several corporations, but the writer is referring specifically to the one formed in Delaware. Note: There is no comma before that.) - Example: The corporation, which was formed in Delaware, has no assets.
(There is only one corporation, and it has no assets. The which clause provides additional information about the corporation but is not essential to the meaning of the sentence. Note: The which clause is set off by commas.)
And what about who? That rule is a little simpler: Whenever you are referring to a person (or people), use who or whom instead of that or which.
- Example: The jurors, who had been sequestered for a month, looked tired.
(Because The jurors refers to people, use who instead of which.) - Example: The case was assigned to the judge whom I had requested.
(Because the judge refers to a person, use whom instead of that. Whom is correct, not who, because it is the object of the clause whom I requested.)
As I always remind my students, it’s not necessary to memorize the rules about the correct usage of which and that—or the rules about any grammar, usage, or punctuation issue, for that matter—because there are excellent legal writing manuals we can consult as often as we need to. If the that/which/who/whom issue is one that often trips you up, add those words to your legal writing “hit list” (see my November 2020 column) so you can double-check your usage. Yes, your reader cares; and your attention to detail will give you a greater pride of authorship.
Laura Graham serves as Professor of Legal Writing and Director of Legal Analysis, Writing, and Research at Wake Forest University School of Law. She is a graduate of Wake Forest University and Wake Forest University School of Law, where she received the 1994 Outstanding Woman Law Graduate Award. She was also the first recipient of the Graham Award for Excellence in Teaching Legal Research and Writing, which is named in her honor. She welcomes emails from readers at [email protected].
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ENDNOTES
[i] Yes, you know it by now: Deborah Bouchoux’s Aspen Handbook for Legal Writers, now in its fourth edition.
[ii] Diamond Sawblades Mfrs.’ Coal. v. United States, No. 1:17-cv-00167-CRK, 2021 WL 262303 (Fed. Cir. Jan. 27, 2021).
[iii] As a former Latin teacher who spent countless hours drilling students on the relative pronoun chart (“qui, quae, quod, cuius, cuius, cuius, . . .”), I’ve never struggled with the distinction between that, which, who, and whom. But I realize that there probably aren’t many other Latin teachers in the reading audience!
[iv] Deborah E. Bouchoux, Aspen Handbook for Legal Writers 25 (4th ed. 2017).
[v] Id.
[vi] Id. at 24. I’ve simplified the explanations here.