7.2 Subject-Verb Agreement, Verb Tense Sequence & Subjunctive Mood

7.2 Subject-Verb Agreement, Verb Tense Sequence & Subjunctive Mood

Quick Answer: The FCICE Written Phase tests grammatical precision in three high-stakes syntactic arenas: complex subject-verb agreement (resisting distraction from intervening prepositional phrases like along with and applying the proximity rule to neither... nor), temporal tense sequencing (properly backshifting past events to the past perfect in reported testimony and judicial findings), and the mandative subjunctive (mandating the bare infinitive verb form—e.g., surrender, be—in that-clauses following verbs of order, demand, or motion).

In legal drafting and courtroom proceedings, verb forms carry jurisdictional and constitutional force. Whether an appellate court reverses a conviction can turn on whether a statute imposes a mandatory duty (shall / must) or discretionary authority (may). Similarly, in judicial factual findings and grand jury transcripts, the temporal sequence of verb tenses determines whether an act occurred prior to or concurrently with the formation of a criminal conspiracy. For the court interpreter, navigating these structures ensures that neither grammatical number nor evidentiary chronology is distorted during bilingual proceedings.

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1. Complex Subject-Verb Agreement in Elevated Legal Drafting

The fundamental rule of English grammar—that a verb must agree with its subject in number and person—is subjected to extreme syntactic strain in formal legal writing. Long parenthetical interruptions, nested prepositional phrases, and inverted structures frequently separate the subject from its finite predicate by dozens of words.

A. Intervening Prepositional Phrases & Parenthetical Adjuncts

In legal English, a subject is frequently followed by parenthetical phrases introduced by quasi-connectors:

• along with, together with, as well as, in addition to, accompanied by, including, not to mention, with.

These expressions are prepositional phrases, not coordinating conjunctions. They do not compound the subject or alter its grammatical number. The finite verb must agree strictly with the initial head noun:

[Singular Subject]          [Intervening Prepositional Phrase]           [Singular Verb]
The testimony        ──►    along with several wiretap recordings  ──►   WAS admitted. (NOT: were)
The lead investigator──►   as well as five assisting DEA agents   ──►   WAS cross-examined.

• Defective: "The admissibility of the financial records, along with the forensic auditor's extensive workpapers, were vigorously contested by defense counsel."
• Corrected: "The admissibility [singular subject] of the financial records, along with the forensic auditor's extensive workpapers, was [singular verb] vigorously contested by defense counsel."

B. Correlative Conjunctions & The Proximity Rule

When subjects are joined by correlative conjunctions—either... or, neither... nor, not only... but also—the verb does not combine the subjects. Instead, English syntax enforces the Rule of Proximity: the verb agrees in number and person with the nearer subject element (the element immediately preceding the verb):

Neither the defendant [Singular]  NOR his co-conspirators [Plural]  ──► WERE present. [Plural verb]
Neither the co-conspirators [Plural] NOR the defendant [Singular]  ──► WAS present.  [Singular verb]

• Defective: "Neither the prosecuting attorney nor the defense lawyers was satisfied with the magistrate judge's preliminary bail determination."
  • Analysis: The nearer subject element is the defense lawyers (plural). The verb must therefore be plural (were).
• Corrected: "Neither the prosecuting attorney nor the defense lawyers were satisfied with the magistrate judge's preliminary bail determination."

C. Collective Nouns in American Legal English

In American English (and strictly on the FCICE), collective nouns designating an organized judicial or legal body are treated as grammatically singular when the group acts as a single unified entity:

• the jury, the grand jury, the panel of judges, the court, the board of directors, the prosecution, the government, the committee.

Examples:

• "The jury has reached its verdict." (Not: "The jury have reached their verdict"—standard British usage, but an error on the FCICE).
• "The three-judge appellate panel is unanimous in its disposition."
• "The government has rested its case-in-chief."

Exception (Members Acting Individually): When the emphasis is on the individual members acting in discord or separately, American English permits a plural verb, though formal legal style prefers recasting the sentence ("The jurors were divided in their deliberations" rather than "The jury were divided").

D. Indefinite Pronouns: Absolute Singulars vs. Variable SANAM

Indefinite pronouns represent a major category of subject-verb agreement errors on the FCICE:

1. Absolute Singular Indefinite Pronouns: Always take a singular verb, regardless of intervening plural prepositional complements:

   • each, neither, either, everyone, everybody, anyone, someone, one, nobody, no one.
   • Defective: "Each of the indicted co-conspirators have entered a plea of not guilty."
   • Corrected:* "Each [singular] of the indicted co-conspirators has [singular] entered a plea of not guilty."
   • Defective: "Neither of the search warrants were supported by a verified affidavit."
   • Corrected:* "Neither [singular] of the search warrants was [singular] supported by a verified affidavit."

2. Variable Indefinite Pronouns (The SANAM Rule):

   • Some, All, None, Any, Most.
   • These pronouns depend on the object of the preposition (count vs. non-count / mass noun):
     • Non-count noun: "None of the seized contraband was destroyed prior to trial." (Contraband = mass noun)
     • Count noun (plural): In elevated legal English, none historically took a singular verb (none of the witnesses was), but modern federal usage accepts plural when referring to distinct individuals ("None of the subpoenaed witnesses were excused from attending."). However, if an FCICE question explicitly tests classical concord, none meaning "not one" governing a singular concept takes a singular verb.

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2. Sequence of Tenses in Judicial Findings & Reported Testimony

The Sequence of Tenses (consecutio temporum) governs the chronological relationship between the verb in a main clause and verbs in subordinate clauses. In federal courtroom transcripts and judicial opinions, failure to observe proper sequence distorts evidentiary timelines.

A. The Principle of Past Backshifting in Reported Testimony

When a reporting verb in the main clause is in the past tense (testified, stated, averred, found, concluded), the verbs in the dependent clause must backshift into a corresponding past or past perfect tense to reflect events that occurred prior to or concurrently with the reporting:

DIRECT WITNESS TESTIMONY:   "I observed the defendant hand the duffel bag to the courier."
REPORTED COURTROOM PROSE:   The detective testified that he HAD OBSERVED the defendant hand the bag.
                            (Past Perfect reflects action completed BEFORE the testimony)

• Defective: "During the suppression hearing, Special Agent Morales testified that he has executed the warrant after verifying the physical address."
  • Analysis: The present perfect has executed improperly suggests an action continuing into the present moment of the hearing. Because the execution occurred prior to the testimony, it requires the past perfect had executed.
• Corrected: "During the suppression hearing, Special Agent Morales testified that he had executed the warrant after verifying the physical address."

B. Past Counterfactual Conditionals in Appellate Arguments

Appellate arguments frequently analyze what the trial outcome would have been had a constitutional error not occurred. Counterfactual conditional structures require precise coordination of the past perfect in the if-clause and the conditional perfect (would have / could have + past participle) in the result clause:

[IF-CLAUSE: Past Perfect]                         [RESULT CLAUSE: Conditional Perfect]
If the trial judge HAD GRANTED the severance ──►  the prejudicial spillover WOULD HAVE BEEN avoided.

• Defective: "If the defendant would have invoked his right to counsel, the custodial interrogation would have ceased immediately."
  • Analysis: In standard English syntax, would have never appears in the conditional if-clause. The condition requires the past perfect (had invoked).
• Corrected: "If the defendant had invoked his right to counsel, the custodial interrogation would have ceased immediately."

C. The Enduring Truth Exception to Backshifting

When a subordinate clause states an enduring universal truth, an established scientific fact, or an active constitutional/statutory principle, the verb remains in the present tense, even when governed by a past-tense reporting verb:

• "In its landmark decision, the Supreme Court reaffirmed that the Fourth Amendment protects [present tense] people, not places."
• "The expert witness testified that DNA analysis relies on polymorphic genetic markers."

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3. The Mandative Subjunctive in Legal Drafting & Motion Practice

The mandative subjunctive is one of the hallmarks of elevated formal and statutory English. It is utilized in dependent that-clauses following verbs, nouns, or adjectives expressing a demand, requirement, motion, order, recommendation, or necessity.

A. Syntactic Formula of the Mandative Subjunctive

The mandative subjunctive utilizes the base uninflected form of the verb (the bare infinitive) for all persons and numbers:

1. No 3rd-person singular "-s": Use surrender, not surrenders; file, not files; attend, not attends.
2. The verb "to be": Use be, never is, are, was, or were.
3. Negative subjunctive: Formed with not + base verb (never does not, did not, or is not).
4. Passive subjunctive: Formed with be + past participle (be dismissed, be remanded).

GOVERNING LEGAL TRIGGER VERB                   MANDATIVE SUBJUNCTIVE CLAUSE
"The magistrate judge ORDERED"          ──►    that the defendant SURRENDER his passport. (NOT: surrenders)
"Defense counsel MOVED"                 ──►    that the indictment BE DISMISSED.          (NOT: is dismissed)
"The statute MANDATES"                  ──►    that each corporate officer FILE an audit. (NOT: files)
"The court DIRECTED"                    ──►    that the witness NOT COMMUNICATE.          (NOT: does not)

B. Comprehensive Inventory of Legal Subjunctive Triggers

Exam Trap Alert: Spanish speakers are highly susceptible to error here because Spanish uses the inflected present subjunctive ("El juez ordenó que el acusado entregue / entregara..."). In English, candidates mistakenly insert the modal should ("ordered that he should surrender") or the inflected indicative ("ordered that he surrenders"). Both are considered stylistically flawed or ungrammatical on the FCICE Written Examination.

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4. Modal Verbs in Statutory & Contractual Contexts: Shall, Must & May

In statutory interpretation and formal legal drafting, modal auxiliary verbs are terms of art that govern legal power, duty, and discretion.

A. The Mandatory Modals: Shall vs. Must

In classical statutory drafting, shall denotes an absolute, non-discretionary legal obligation, duty, or mandatory command:

• "The court shall impose a sentence sufficient, but not greater than necessary..." (18 U.S.C. § 3553(a)).
• Legal Effect: The court possesses zero discretion; failure to act constitutes reversible legal error.

The Modern Restyling Movement: Because historical drafters frequently misused shall to mean may, should, or simple future will, the Federal Rules of Criminal and Civil Procedure underwent a comprehensive stylistic restyling (spearheaded by Bryan Garner). Under modern restyled rules:

• Must is the preferred modern modal for mandatory obligations ("The court must address the defendant personally" under Rule 32).
• Shall is retained in historical statutory codes (Titles 8, 18, 21, 28 U.S.C.) and interpreted strictly by the Supreme Court as creating a mandatory obligation (Kingdomware Technologies, Inc. v. United States, 579 U.S. 162: "Unlike the word 'may,' which implies discretion, the word 'shall' usually connotes a requirement").

B. The Permissive Modal: May

May denotes permissive authority, privilege, or judicial discretion:

• "The court may reduce the term of imprisonment... upon motion of the Director of the Bureau of Prisons" (18 U.S.C. § 3582(c)(1)(A)).
• Legal Effect: The court is empowered, but not compelled, to grant relief. Denials are reviewed under the highly deferential abuse of discretion standard.

C. Prohibitions: Shall Not vs. May Not

• Shall not imposes a mandatory prohibition on an individual or entity ("A lawyer shall not knowingly offer false evidence").
• May not negates legal authority entirely, signifying that no jurisdiction or power exists to perform the act ("An appeal may not be taken unless a judge issues a certificate of appealability" under 28 U.S.C. § 2253(c)).

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5. Comprehensive Subject-Verb & Mood Error Matrix

The matrix below details 16 complex sentence structures tested on the FCICE, isolating the subject-verb agreement or mood defect, the grammatical rule, and the certified correction: