Legal Ease

By Howard Posner
     
      Facing "The Fact That"
     
      A couple of years ago I threatened to devote a column to "the fact that." It may have seemed an idle threat at the time. After all, unlike "and/or" and "herein" and its cousins, "the fact that" is not dangerously ambiguous and is not likely to make you a malpractice defendant. Still, the fact that writing mavens constantly tell us to avoid "the fact that" should make us aware of the fact that the phrase is a problem, due to the fact that it is awkward and weighs sentences down. It gets in the reader's way. Like fatty food, it may not be toxic, but a steady diet of it will clog things you don't want clogged. Editing to remove it almost always makes a sentence flow better. Will Strunk in The Elements of Style called it "particularly debilitating" and said it "should be revised out of every sentence in which it occurs."
     
      "But a shadow of gloom seems to hang over the page, and you feel that he knows how hopeless his cause is," wrote E. B. White, Strunk's former student, in the 1957 introduction to the book's revised edition, before confessing that he managed to rid his own writing of "the fact that" only about half the time. White may not have been doing himself justice: I think, for example, he got through Charlotte's Web without using it. But I know how he felt.
     
      Sometimes I just delete the phrase or substitute something less awkward. Sometimes I rewrite the sentence. Every now and then I shrug, decide that life is too short, and leave it alone.
     
      The secret to more effective writing through "the fact that" abatement is to ask what it means and what it's doing in the sentence. The answer to both questions is often "nothing." You can remove each "the fact that" from the next sentence without changing its meaning: "[Plaintiffs claim that] the proxy materials did not disclose two alleged 'conflicts of interests:' (a) The fact that Mr. McLean negotiated for both the favored defendants and the remaining shareholders. (b) The fact that the defendants ... who were affiliated with the favored defendants had a conflict of interest as members of the McLean board of directors." (Gould v. American Hawaiian S.S. Co., 331 F. Supp. 981, 985 (Del. 1971).)
     
      Sometimes "the fact that" is part of a phrase doing the job of a single word. "Due to the fact that" and "in light of the fact that" are synonyms for "because" or "since." Take a sentence like "In light of the fact that three of the other defendants are represented to be judgment-proof, and Hassler has meritorious defenses, the settlement with Hassler is reasonable." This means simply "Since three other defendants are represented to be judgment-proof, and Hassler has meritorious defenses, the settlement with Hassler is reasonable."
     
      Here's an opening that has all the grace of a hippopotamus on skates: "Plaintiff hereby moves in limine to exclude the testimony of defendant's expert witness Henry Lawes. Plaintiff bases this motion on the facts that (1) Lawes' expected testimony is irrelevant, (2) Lawes' expected testimony is cumulative, and (3) Lawes' expected testimony is improper." Save your breath and write: "Plaintiff moves in limine to exclude the testimony of defendant's expert witness Henry Lawes because his testimony is irrelevant, cumulative, and improper." And if we assume the judge has read the caption and already knows it's a motion in limine, we can be even nimbler: "The Court should exclude the testimony of defendant's expert Henry Lawes because it is irrelevant, cumulative, and improper." Rewriting doesn't address the substantive problem-an objection to testimony is not the same thing as a reason to exclude it in limine-but that's not my department.
     
      "Despite the fact that" means "although" or "even though." Take a meandering mess like "Despite the fact that the condition precedent to Green's right to record the deed had not occurred, he recorded the deed anyway." This is easily improved: "Green recorded the deed even though the condition precedent to his right to record it had not occurred."
     
      "The fact that" is not just verbose and plodding by itself; sometimes it comes with an entourage of otherwise useless and unnecessary words. The writer of "we are also cognizant of the fact that an Illinois intermediate appellate court has, recently, rejected the reasoning and holding of Cortez" (Macedo v. Bosio, 86 Cal. App. 4th 1044, 1051 (2001)) would have done better either by saying "We know that an Illinois appellate court ..." (or "We are aware that ..." or "It is true that ...") or by simply rejecting the Illinois holding without the lead-in.
     
      "The fact that" is sometimes a mealymouthed way of saying "that," as in: "plaintiff was notified of the fact that her employment with MMDC would be terminated effective December 22, 1978." (Hiduchenko v. Minneapolis Med. & Diagnostic Ctr., 467 F. Supp. 103, 105 (Minn. 1979).) It's shorter and easier to write "plaintiff was notified that her employment with MMDC would be terminated." Changing from passive to active voice is even better ("MMDC notified plaintiff that it would terminate her employment"). Hiduchenko, by the way, is a case worth remembering, because it holds that it's OK under federal law to discriminate against Ukrainians. You never know when you might want to.
     
      Here's another polysyllabic "that": "No one questions the fact that the respondents here were the victims of an intentional securities fraud practiced by Leston B. Nye." (Ernst & Ernst v. Hochfelder, 425 U.S. 185, 216 (1976), Blackmun dissenting.) In rewriting this sentence to remove "the fact that," you have lots of options, all of which improve it. There's "No one denies that the respondents here were victims of an intentional securities fraud practiced by Leston B. Nye." There's the more active "No one denies that Leston B. Nye perpetrated a securities fraud on respondents" and the shorter "It is undisputed that Leston B. Nye defrauded respondents." If Justice Scalia had written the dissent, he might have said, "Even my thickheaded brethren in the majority can see that Nye defrauded respondents. Quack, quack."
     
      No one questions the fact that there are uses of "the fact that" that are less obviously remediable, but they will have to wait for another time. If you use "the fact that" as much as I have here, you run out of space.
     
      Howard Posner (howardposner@comcast.net) practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.
     

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