2.1 Grammar, Syntax & Subject-Verb Agreement in Legal Documents

2.1 Grammar, Syntax & Subject-Verb Agreement in Legal Documents

[!NOTE] NALS Examination Scope: Part 1 of the NALS Professional Paralegal (PP) Examination, Advanced Communications & Legal Terminology, opens with a Diction – Grammar heading and rigorously tests grammatical accuracy, syntactic clarity, and mechanical precision. In the legal profession, grammar is not merely stylistic—it is substantive. Courts routinely resolve multimillion-dollar disputes and statutory interpretations based on syntactical mechanics, modifier placement, and agreement.

Legal documents demand an uncompromising level of grammatical and syntactic precision. A typographical error in a casual email may be overlooked, but a grammatical defect in a contract, statutory enactment, judicial brief, or sworn affidavit can alter legal obligations, extinguish substantive rights, or trigger protracted litigation. The professional paralegal serves as the primary line of defense against drafting defects, ensuring that all work product submitted to supervising attorneys and filed with tribunals is structurally sound and authoritative.

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The Substantive Weight of Syntax in Legal Practice

In standard commercial litigation, courts are frequently tasked with interpreting instruments under the four-corners doctrine and the plain-meaning rule. Under these canons of construction, judges assume that every word, phrase, and punctuation mark was selected deliberately. If a drafter creates syntactic ambiguity through faulty subject-verb agreement or a misplaced modifier, courts will not simply guess the drafter's subjective intent. Instead, they apply strict grammatical rules that may result in an unfavorable interpretation for the drafter's client.

Grammatical integrity directly impacts:

• Contractual Covenants: Identifying precisely who must perform an obligation and under what conditions.
• Statutory Exemptions: Defining the exact class of beneficiaries or regulated entities.
• Pleadings and Motions: Persuading the court through authoritative, error-free advocacy that reflects professional diligence.
• Evidentiary Affidavits: Establishing sworn statements that cannot be undermined on cross-examination due to ambiguous syntax.

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Subject-Verb Agreement Across Complex Syntactic Structures

The fundamental grammatical rule that a subject must agree with its verb in number (singular or plural) and person (first, second, or third) appears straightforward in simple sentences. However, legal drafting frequently employs dense, multi-clause constructions where subjects and verbs are separated by extensive intervening text, parenthetical lists, or compound qualifications.

1. Intervening Phrases and Parenthetical Modifiers

One of the most frequent errors on the NALS examination involves intervening phrases that separate the primary subject from its predicate verb. Prepositional phrases, parenthetical clauses, and appositives do not change the grammatical number of the subject.

Phrases introduced by the following connectors do not compound the subject:

• together with
• as well as
• along with
• in addition to
• accompanied by
• including
• especially

Incorrect: The managing partner, as well as the junior associates, were sanctioned by the court. Correct: The managing partner, as well as the junior associates, was sanctioned by the court.

In the correct sentence, "managing partner" is the singular subject. The phrase "as well as the junior associates" is a parenthetical prepositional modifier set off by commas; it does not constitute a compound coordinating conjunction like "and".

Similarly, negative parenthetical expressions do not alter subject number:

Correct: The defendant corporation, and not its individual shareholders, is liable under the lease.

2. Compound Subjects Joined by Conjunctions

The rules governing compound subjects depend entirely on the coordinating or correlative conjunction utilized:

The Conjunction "And"

When two or more subjects are connected by "and", they almost invariably form a plural subject requiring a plural verb:

Example: The plaintiff and the defendant have stipulated to a thirty-day extension.

Exception for Single Conceptual Units: When two nouns joined by "and" represent a single, unified legal concept, entity, or person holding multiple titles, they take a singular verb:

Example: Assault and battery is an intentional tort under state common law. (Treated as a single composite cause of action) Example: The registered agent and corporate secretary has accepted service on behalf of the company. (Refers to one individual occupying both roles)

Alternative and Correlative Conjunctions ("Or", "Nor", "Either...Or", "Neither...Nor")

When subjects are connected by alternative conjunctions, they do not combine their numbers. Instead, the Rule of Proximity (also known as the Principle of Attraction) controls: the verb agrees in number and person with the nearer subject element.

[!TIP] Drafting Best Practice: While placing the singular noun second is grammatically correct ("Neither the partners nor the associate was present"), it can sound awkward to the ear. Skilled legal drafters place the plural subject element closest to the verb whenever possible ("Neither the associate nor the partners were present") to preserve natural syntactic flow.

3. Indefinite Pronouns as Subjects

Indefinite pronouns serve as subjects in many statutory definitions and contract conditions. Their grammatical number is strictly categorized:

1. Always Singular: Each, either, neither, one, everyone, everybody, someone, somebody, anyone, anybody, no one, nobody.

   • Correct: Each of the contested patents is presumed valid under federal law.
   • Correct: Neither of the proposed settlements meets the client's financial objectives. (Note: The prepositional phrase "of the contested patents" does not make the subject plural. "Each" remains the singular subject).

2. Always Plural: Both, few, many, several.

   • Correct: Both of the expert witnesses have submitted their Rule 26 disclosures.
   • Correct: Several of the cross-claims were dismissed with prejudice.

3. Variable Pronouns (The SANAM Rule): Some, Any, None, All, Most. The number of these pronouns depends entirely on the object of the following prepositional phrase:

   • Singular: None of the escrow deposit has been released. ("Deposit" is an uncountable singular mass noun)
   • Plural: None of the escrow funds have been released. ("Funds" is a countable plural noun)
   • Singular: All of the confidential information was encrypted. ("Information" is singular mass)
   • Plural: All of the deposition transcripts were indexed. ("Transcripts" is plural)

4. Collective Nouns in Legal Writing

A collective noun names a group of individuals or items acting as a unit. In American legal writing, collective nouns representing business or governmental entities almost universally take singular verbs and singular neuter pronouns.

Common legal collective nouns include: corporation, company, limited liability company, board, committee, panel, jury, court, agency, council, commission, class, and firm.

• Correct: The corporation has breached its contractual duty under Article IV.
• Incorrect: The corporation have breached their contractual duty under Article IV.
• Correct: The jury has deliberated for five hours and delivered its verdict.
• Correct: The arbitration panel is issuing an interim protective order.

The Plural Exception: If the sentence explicitly highlights the individual members of the group acting separately or in discord, a plural verb may be employed:

• Plural Usage: The jury were divided in their evaluations of the witness's credibility. (Better drafting practice: recast as "The members of the jury were divided in their evaluations...").

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Pronoun-Antecedent Agreement & Syntactic Ambiguity

Pronouns must agree with their antecedents (the nouns they replace) in number, gender, and person. In legal documents, imprecise pronoun usage creates substantive ambiguities regarding who holds a right or bears an obligation.

1. Corporate Entities and Inanimate Antecedents

In business correspondence and legal drafting, candidates must never refer to an incorporated business entity with plural personal pronouns like they, them, or their. A corporation, partnership, or limited liability company is a distinct legal "person" under the law, but grammatically it is an inanimate neuter singular entity:

• Incorrect: Target Corporation failed to file their responsive pleading on time.
• Correct: Target Corporation failed to file its responsive pleading on time.

2. Restrictive vs. Non-Restrictive Relatives: "That" vs. "Which"

The distinction between "that" and "which" is one of the most critical syntactical boundaries in legal drafting:

• "That" introduces a restrictive (essential) clause: A restrictive clause is indispensable to identify the noun it modifies. It limits or restricts the noun to a specific subset. Restrictive clauses are never set off by commas.

  Example: The contracts that were signed before January 1 remain enforceable. (Meaning: Only that specific subset of contracts signed before January 1 is enforceable; contracts signed after that date are excluded).

• "Which" introduces a non-restrictive (non-essential) clause: A non-restrictive clause provides supplementary, incidental, or parenthetical information about a noun that is already fully identified. It could be removed from the sentence without altering the core meaning. Non-restrictive clauses are always set off by commas.

  Example: The contracts, which were signed before January 1, remain enforceable. (Meaning: All contracts remain enforceable; the fact that they were signed before January 1 is merely incidental descriptive context).

+--------------------------------------------------------------------------------+
|                       "That" vs. "Which" in Legal Drafting                     |
+--------------------------------------------------------------------------------+
| Term    | Clause Type      | Punctuation Required | Substantive Impact         |
+---------+------------------+----------------------+----------------------------|
| That    | Restrictive      | NO Commas            | Limits/defines the class   |
| Which   | Non-Restrictive  | Commas Required      | Adds incidental detail     |
+--------------------------------------------------------------------------------+

[!IMPORTANT] A drafter who writes "The indemnification obligations which arise from gross negligence shall survive termination" without commas has created an ambiguous provision. If interpreted as non-restrictive, all indemnification obligations survive termination; if intended as restrictive, only those arising from gross negligence survive. Always use that for restrictive clauses without commas.

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Modifiers in Legal Drafting: Misplaced, Dangling, and Squinting

Modifiers—whether single words, prepositional phrases, or participial clauses—must point directly and unambiguously to the word they modify. A displaced modifier can distort factual narratives in affidavits or alter the scope of legal rights in contracts.

1. Misplaced Modifiers

A misplaced modifier is separated by too many words from the noun it is intended to modify, inadvertently attaching itself to the wrong word.

• Defective: The attorney agreed to defend the client accused of fraud for a flat fee. (Did the client commit fraud for a flat fee, or did the attorney agree to represent the client for a flat fee?)
• Cured: The attorney agreed for a flat fee to defend the client accused of fraud.

The Limiting Adverb Trap: "Only", "Merely", and "Solely"

Limiting adverbs like only, merely, just, and solely must be placed immediately before the word they modify. Shifting their placement radically changes the legal rule:

1. Only the managing partner may sign trust checks. (No other individual may sign)
2. The managing partner may only sign trust checks. (The partner may sign them, but perform no other action on them)
3. The managing partner may sign only trust checks. (The partner may not sign payroll or general operating checks)

2. Dangling Modifiers

A dangling modifier occurs when the word that the introductory phrase logically modifies is entirely absent from the sentence, or when an improper noun occupies the subject position immediately following the introductory phrase. Dangling participial phrases are common errors in draft affidavits and briefs.

• Defective: Having reviewed the client's medical records, the deposition was scheduled by the paralegal. (Literally asserts that the "deposition" reviewed the medical records!)

• Cured: Having reviewed the client's medical records, the paralegal scheduled the deposition.

• Defective: Upon entering the courtroom, the judge's gavel sounded. (The gavel did not enter the courtroom; the judge did).

• Cured: Upon entering the courtroom, the judge struck her gavel.

3. Squinting Modifiers

A squinting modifier is an adverb positioned between two sentence components such that it could logically modify either the preceding word or the following word.

• Defective: The paralegal advised the client repeatedly to review the financial disclosures. (Did the paralegal advise repeatedly, or was the client advised to review repeatedly?)
• Cured (Interpretation A): The paralegal repeatedly advised the client to review the financial disclosures.
• Cured (Interpretation B): The paralegal advised the client to review the financial disclosures repeatedly.

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Parallel Construction in Legal Lists, Pleadings, and Contracts

Parallelism requires that coordinate ideas within a sentence or list share the same grammatical form. Parallel structure enhances readability, emphasizes equal legal importance, and prevents syntactic jarring in pleadings, contracts, and briefs.

Rules for Parallel Lists

When drafting an enumerated series, every item in the series must follow the same grammatical structure:

• All nouns
• All gerunds (-ing verbs)
• All infinitive phrases (to + verb)
• All complete independent clauses

Defective Pleading Allegation: Plaintiff seeks an order for:

1. Preliminary injunctive relief;
2. To recover monetary damages; and
3. Disgorgement of ill-gotten profits. (Item 1 is a noun phrase, Item 2 is an infinitive phrase, and Item 3 is a noun phrase).

Cured Parallel Pleading Allegation: Plaintiff seeks an order for:

1. Preliminary injunctive relief;
2. Monetary damages; and
3. Disgorgement of ill-gotten profits. (All three items are now noun phrases governed by the preposition 'for').

Parallelism with Correlative Conjunctions

When using correlative pairs such as either...or, neither...nor, not only...but also, and both...and, the grammatical construction following the second conjunction must mirror the construction following the first.

• Defective: The court must either dismiss the complaint or the plaintiff must amend the claims.
• Cured: The court must either dismiss the complaint or require the plaintiff to amend the claims. (Mirrors infinitive verbs 'dismiss' and 'require').

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Active vs. Passive Voice in Legal Drafting

Voice reflects the relationship between the grammatical subject and the action of the verb:

• Active Voice: The subject performs the action. (Subject -> Action -> Object)
  • Example: The defendant breached the covenant of good faith.
• Passive Voice: The subject receives the action. (Object -> Action by Subject)
  • Example: The covenant of good faith was breached by the defendant.

The Primacy of Active Voice in Contractual Drafting

In transactional drafting, active voice is mandatory because it leaves no doubt regarding who bears the duty. Passive voice frequently conceals the obligor, creating disastrous ambiguities.

Ambiguous Passive Drafting: Notice of default shall be transmitted within ten (10) days. (Who must transmit notice? The lender? The escrow agent? The loan servicer?)

Clear Active Drafting: The Lender shall transmit notice of default within ten (10) days.

Strategic Justifications for Passive Voice in Litigation

While active voice is the general standard of clarity, skilled litigation paralegals and attorneys deploy passive voice intentionally for specific tactical objectives:

1. De-emphasizing Adverse Conduct (Defense Advocacy): When drafting an answer, mediation statement, or defense motion, passive voice softens client culpability by shifting focus away from the actor.
   • Active (Emphasizes fault): Mr. Henderson struck the pedestrian with his vehicle.
   • Passive (De-emphasizes fault): The pedestrian was struck by a motor vehicle.
2. The Actor is Unknown or Irrelevant: When facts do not reveal the identity of the perpetrator, passive voice is appropriate.
   • Example: The proprietary source code was exfiltrated from the server at 2:00 AM.
3. Preserving Thematic Continuity and Flow: If the narrative focus of a section is a specific victim or document, using passive voice keeps that entity in the prominent subject position across multiple sentences.
   • Example: Ms. Rodriguez presented her credentials. She was subsequently interviewed by the committee and was offered the position.