BLOG.LEGALWRITING.NET

Italics or underlining?

Wayne Schiess — Wed, 03 Feb 2010 14:38:00 GMT

I prefer italics in legal writing. Not only in citations, but in all places where you might otherwise underline--for emphasis, for headings. I consider underlining to be an outdated typographic convention necessitated by typewriters.

The Bluebook perpetuates underlining in citations by giving all examples of citations in practitioner documents with underlining, not italics. Many lawyers use underlining instead of italics for citations. And some legal-writing teachers tell their students to use underlining instead of italics for citations.

Why?

What are the advantages of underlining over italics for legal citations? Care to comment?

Wayne Schiess
Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide

A visit to Young Authors Conference

Wayne Schiess — Wed, 27 Jan 2010 12:14:00 GMT

I was invited to a Young Authors Conference at an elementary school. It was a big deal to me because they have children's book authors, poets, songwriters, journalists, and screenwriters--the people we typically think of as writers. So I was flattered to be asked because, although all lawyers know that lawyers do a lot of writing, some people might not know that. Plus I've written 4 books, and I was gratified to see that the organizers knew that. Of course, the lead organizer is a friend, and I told her I had written 4 books, so . . .

Anyway, I told the students in my two sessions about the 3 types of legal writing lawyers do: explanation, persuasion, and rules. Then we tried to write a law about "no cars in the park," with a statement of the law's purpose, the text of the law, and a statement of the consequences. I thought it went very well, and today I received thank-you notes, which, of course, they were required to write. Still, some of them are just great. You might enjoy some excerpts.

Thank you for teaching me about lawyer stuff. Probably I might become a lawyer after I retire from making movies.

Thank you Wayne Schiess. It was cool listening to how you wrote laws. Thank you. P.S. Are you going to be here next year?

I would like to thank you for all the work you gave us. Now I feel more smart.

Young Authors Conference was sooooo much fun doing it with you. I liked it a lot. Thank you for doing so much. You were funny. I liked you a lot. I enjoyed it a lot.

And my favorite:

Thank you for teaching me about legal writing and about laws and what they do. P.S. Thank you for coming, and it was not boring.

Plain-language advice from "McElhaney on Litigation"

Wayne Schiess — Wed, 06 Jan 2010 19:31:00 GMT

Jim McElhaney has for many years given great advice on litigation in the ABA Journal. In the January 2010 issue, he recommends against using the following words in examining a witness. I'm against the same words, for the same reasons, in legal writing:

Prior and subsequent: "Before" and "after" are perfectly good words. Use them instead.

Previous: Worse than "prior."

Contemporaneously: Worse than "previous." "At the same time" is understood instantly.

Have occasion to: Needless clutter that often follows "did you . . . ?" Don't use it.

With respect to: An awkward way to say "about" or "concerning."

. . .

Initiate: "Start" is a perfectly good word. Use it instead.

. . .

Observe and perceive: "See" and "hear" almost always do a better job.

. . .

Indicate: "Show" and "tell" are better words. Use one of them instead.

Relate: Too fancy. "Tell" does a much better job.

Statment of facts--all in?

Wayne Schiess — Wed, 16 Dec 2009 16:25:00 GMT

A reader asks:

Is it appropriate to raise new facts in an argument section (with citation to the record) that you did not cite in the Statement of Facts? Sometimes, facts that I want to raise in the argument don't fit well within the Statement of Facts. They either make the Statement of Facts long and clumsy or just seem out of place / distract from the narrative but are useful in the context of the argument.

I hope practitioners will chime in with comments, but I can tell you that the stock answer for my first-year brief-writing course is no. Don't mention a fact for the first time in the argument. Any fact you mention in the argument should have been mentioned first in the facts section.

Other opinions?

Genuine ambiguity cause by a that-which error

Wayne Schiess — Wed, 16 Dec 2009 16:11:00 GMT

A commenter writes:

I think the UCC provision is perfectly clear. This made-up distinction between which and that is a lie and doesn't really exist. If I recall correctly, the British use which and that interchangeably.

But I say that although failing to distinguish between that and which rarely results in genuine ambiguity, it can create ambiguity and occasionally does. So it's worth observing the distinction. For example:

A new body of water law was needed in the western states which relied on irrigation for farming.

What does this mean?

a. New water law was needed in the western states--all of whom rely on irrigation for farming.
b. New water law was needed only in those western states relying on irrigation for farming.

To me, it is a genuine ambiguity, and it would disappear if the writer could distinguish between that and which. Like this:

a. A new body of water law was needed in the western states, which relied on irrigation for farming.
b. A new body of water law was needed in the western states that relied on irrigation for farming.

That's my position. The examples are from Douglas Laycock, That and Which, 2 Scribes Journal of Legal Writing 37 (1991).

What they're teaching my kids about punctuation and grammar

Wayne Schiess — Wed, 16 Dec 2009 16:06:00 GMT

My son's 3rd-grade teacher thinks it's okay to begin sentences with "but." I saw it on poster in her room and in a student-written example she handed out.

Another son's 6th-grade teacher requires him to include a full complement of serial commas: a, b, and c. My son was tested on it today. I saw the review sheet and the teaching materials.

What gives? Where is it that writers are learning that you can't begin sentences with "but" and that you don't need a comma before the conjunction in a series?

that-which errors in the UCC?

Wayne Schiess — Wed, 16 Dec 2009 13:54:00 GMT

An astute reader points out a concern in UCC section 2-714, which, he says "I've been staring at for the better part of a day now." He writes:

This is from UCC 2-714:

Where the buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.

Excuse me, but I think the drafters intended "is reasonable" to restrict "any manner," as in:

Where the buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner that is reasonable.

Or even better:

Where the buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any reasonable manner.

Single-sentence issue statements--comments from a real lawyer

Wayne Schiess — Fri, 20 Nov 2009 13:22:00 GMT

Ray Ward at the (new) legal writer has some good advice for brief writers:

Before you write another long, convoluted, one-sentence issue statement, check the applicable procedural rules to see whether you’re required to do that.

Beginning the statement of facts--a better approach

Wayne Schiess — Tue, 17 Nov 2009 19:16:00 GMT

Each of these is the first sentence of a statement of facts in a brief. I think they are more compelling and stage-setting than statements that begin with dates.

Jack Ingram married for the first time in 1974 to Mary Gonzalez. . . .

CollecTech engages in the business of purchasing charged-off consumer debts, including telecommunications debts, and enforcing the debts against the consumers. . . .

Since Mindy Riggins' husband died about nine months ago, the children, ten year-old Billie and eight year-old Ty, have been living with their aunt and uncle. . . .

Ellen Raskin was terminated one month after reporting an alleged forgery to the Boise Police Department and the Ada County District Attorney's office. . . .

The court must decide if testimony concerning lost or destroyed evidence that is impeaching or potentially exculpatory should be excluded to protect defendants’ due process rights. . . .

Fred Smokey allegedly assaulted a victim while within the Davy Crockett National Forest. . . .

Respondent, Jennifer Hardison, is in possession of drawings rendered by John Ellis Blakely in 1934 for a proposed renovation to the Galveston County courthouse. . . .

Ted Tanaka is a truck driver and heavy equipment operator who specializes in operating a front-end loader, a highly complex piece of equipment. . . .

C.J. Tyne was four years old when his biological mother, Lena Renton, gave him to her sister Melinda, asking Melinda to 'adopt C.J.' . . .

On a trip to Las Vegas in 2005, Ms. Pixie McAllister met Mr. Dexter Pollux. . . .

Wayne Schiess
Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide

Beginning the statement of facts

Wayne Schiess — Thu, 05 Nov 2009 19:38:00 GMT

Each one of these excerpts is the first paragraph of a statement of facts in a brief. What do they have in common?

At approximately 10 p.m. on January 10, 2007, Plaintiff Jane Skinner and her boyfriend, Adrian Vasquez, went to room 101 at the Deluxe Inn in El Paso, Texas, to visit their friend, Fred Wright, who was a paying guest of the motel. . . .

On June 21, 1998, Defendant Alan Bodily, traveling at about 80 miles per hour on Highway 101 in Emmett, Idaho, crashed into Plaintiff Ella Francis. . . .

On June 25, 2000, the Government served Gerardo Colangelo, a Legal Permanent Resident of the United States, with a “Notice to Appear” in removal proceedings brought under section 240 of the Immigration and Naturalization Act. . . .

In the early morning of February 18, 2005, Plaintiff, Richard Lester, alleges that he incurred personal injuries when he was throwing a railroad switch at the Plantsman Refining Company facility. . . .

On June 24, 2002, Plaintiff originally filed this malpractice action against TCA Health Services of Indiana, Inc. and Elizabeth Randall, D.O. for care and treatment he received at Hoosier Medical Center. . . .

On March 12, 2002, Willie Webb attended a public meeting of the Lewis City Council. Webb is a community activist and a journalist who often attends meetings and speaks on matters pertaining to the plight of the homeless. . . .

By way of background, on the 31st day of January, 2007, Rene Stepanik (Plaintiff/Appellant) was staying at a hotel in the city of Westin. While at the hotel, she was approached by Hays County Deputy Cort Williams. . . .

In the late evening of September 24th, 1999, June Besel’s home was stormed by a tactical team of law enforcement officers made up of different State and Federal Agencies. . . .

On December 23, 2005, the Seattle City Council enacted Ordinance 22 of 2007 (the “Ordinance”). It became effective in the City on December 30, 2005. The Ordinance provided for an 8-foot personal bubble zone. . . .

On June 25, 2007, the Board adopted two rules, which are contained in the Addendum for ease of reference. The first rule amended the Admin. Code § 26.095, which specifies the professional responsibilities of realtors. . . .

Apostrophes--a practice I do not like

Wayne Schiess — Fri, 30 Oct 2009 14:25:00 GMT

Many professional writers, especially journalists, use this convention for creating possessives:

If the word ends in "s" or an "s" sound, voiced or unvoiced, add an apostrophe at the end to create a possessive.

This creates

my boss' car

instead of

my boss's car (which I prefer)

I do not like the "just add an apostrophe" convention. It produces the following results, which I think are silly and that I am not making up:

The Red Sox' pitching staff
Xerox' new product line
Manny Ramirez' slugging percentage
The CMS' conclusions

An accolade for this blog

Wayne Schiess — Thu, 29 Oct 2009 11:30:00 GMT

The website paralegalschoolsonline.org is carrying a list of the top 20 sites for do-it-yourself law, and this blog made the list.

The link is here.

Thank you.

Writing is writing, not speaking, and drafting is drafting, not analysis.

Wayne Schiess — Thu, 29 Oct 2009 00:39:00 GMT

The following two things bother me, but not enough to call them pet peeves.

Giving advice for persuasive writing with examples from speeches--as if spoken language is the same as written language. It's not.

Giving advice for legal writing without distinguishing between analytical writing and legal drafting--as if legal writing is all one genre. It's not.

There.

Ending sentences and clauses with prepositions

Wayne Schiess — Wed, 28 Oct 2009 17:54:00 GMT

I think it is okay to end sentences and clauses with prepositions. In my own writing, I do it whenever I think it sounds more natural--more conversational. I also sometimes take veiled, mocking shots at the non-rule against ending with prepositions. I've done that on this blog a few times, like this:

A lawyer attending one of my seminars offered a great suggestion that I had never thought of. (Oops! "of which I had never thought.")

But practicing lawyers and law students reading this blog should follow my lead slowly. Remember: I do not write for judges, who might be grammatically conservative. I do not write for a supervising attorney, who might have a pet peeve about sentence-ending prepositions.

Tune your writing style and grammar to the expectations of your audience.

Wayne Schiess
Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide

Write the argument, then the facts

Wayne Schiess — Wed, 21 Oct 2009 17:42:00 GMT

A lawyer attending one of my seminars offered a great suggestion that I had never thought of. (Oops! "of which I had never thought.")

When writing a brief in a case with a long or complex factual record, make detailed notes about the record, but do not write your statement of facts yet. Outline and write your argument, using your record notes as a reference. Then write the statement of facts. You'll know exactly what facts are relevant and what facts are key. You'll know what facts you can leave out. You'll be better able to frame and phrase the facts in ways that favor your arguments.

Just because the facts come before the argument in a brief doesn't mean you must write the facts before you write the argument.

If you're a practicing lawyer who writes briefs, you probably already do this. It just makes sense. But it's a good tip for law students and young lawyers.

Wayne Schiess
Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide

Texas Bar Journal article on terms of art

Wayne Schiess — Mon, 05 Oct 2009 18:37:00 GMT

A student's comments about legal writing in practice

Wayne Schiess — Wed, 16 Sep 2009 15:50:00 GMT

One of my students wrote this insightful essay:

A Culture of Merely Adequate

I realize that merely adequate legal writing is disfavored among legal writing professionals, and that I should strive throughout my career develop my legal writing skills. However, continued development after law school requires not only a personal, proactive effort but also, and more importantly, a professional atmosphere that promotes legal writing development. While law firms may give “lip service” to continued development of legal writing skills, it has been my experience that partners are more concerned with meeting deadlines and providing writing critiques that shape an associate’s writing style to the partner’s style. Through this deadline-driven, partner-controlled culture, I feel that an associates striving to “make partner” have little incentive (or time) to proactively improve their legal writing skills beyond partner approval and meeting a deadline. The result of this culture, however, is limited personal development and an endless cycle of merely adequate legal writing.

I agree that “little incentive” may be a short-sighted, sophomoric statement. The obvious rebuttal to this statement might be, “Wouldn’t proactively improving your overall writing skills ultimately lead to becoming a better attorney and thus culminate in partner approval?” Maybe so, but answering that question requires further dissection of both legal writing and the legal culture that perpetuates merely adequate writing.

So how does the legal profession focus on writing skills? A primary focus of legal writing is presenting legal precedent that proves or disproves an argument. To do that, you must do legal research first. Legal research is an arduous task that requires a skill set separate from legal writing, although it ultimately shapes the arguments in an attorney’s final written work product. Before any writing actually occurs on a memorandum, motion, or brief, significant time is spent researching treatises and precedent to find the “best” legal argument. From my own experience, a research task may be assigned with the expectation of both a memorandum and a motion based on that memorandum--within a week. Finding the "best" answer is often not possible or time efficient given the looming deadline. Thus, there exists a constant time conflict between finding the “best” legal argument and actually producing written work product by the prescribed deadline.

This time conflict that results in “short-cuts” and form practice that ultimately impact a second focus of legal writing--persuasiveness. I can’t count the times I’ve heard, “What does the case law say?” followed by, “How does that help our case?” leading immediately into, “When can you have this to me?” In order to meet deadlines and keep a partner happy, associates often pull out an old memorandum or motion written by the assigning partner to use as a framework in constructing the new document. Although this practice may be frowned upon from an academic standpoint, it is actually advocated by peer associates within a firm. The result, however, is that the final written work product “borrows” the persuasive style of the assigning attorney, which in itself was probably “borrowed” from another attorney’s style. Final written work product may contain only hints of its author’s persuasive writing skills.

It is the constant time conflicts and the endless cycle of form practice that perpetuate the cycle of merely adequate written work product in the legal profession. While I firmly believe that all attorneys desire to improve their legal writing skills, I have yet to see the practical implementation of legal writing development through “practice, critique, and study” in the practicing legal culture. Incoming associates are saddled with billable-hour requirements and docket deadlines immediately upon entry into the legal profession. The recruiter’s representations of the firm’s commitment to associate development are lost and hollow with respect to legal writing development in the face of these deadlines and partners’ expectations. Practice is limited to associate development milestones tracked through successful completion of tasks. Critique is administered when you make a mistake. And study is focused on the ever-changing legal precedent in your practice area.

Firms lack little incentive to change their culture and implement effective legal writing development programs--this might adversely affect their ever-important “prestige” or sacrifice the almighty billable-hour. Thus, merely adequate legal writing remains the course. I can adopt altruistic notions that I will be the “different” incoming associate who will set my own course for continued legal writing development. Yet family responsibilities and job security will likely produce an alternate result--assimilation into the ranks of the adequate. Changing this course must instead be initiated in a top-down manner beginning with professional organizations.

One top-down change could be to alter the framework of CLE requirements. Most states require at least one hour--and often more--of ethics training per year under their CLE guidelines. Why not mandate at least one hour for writing development? Seminars in modern contract, license, or transactional drafting could be one method for meeting this requirement. Submitting a 250-word client letter for critique could be another. Regardless of the method, the legal profession itself must initiate this cultural change toward continued legal writing development and break the course of merely adequate legal writing.

A student's comments on legal writing

Wayne Schiess — Mon, 14 Sep 2009 20:59:00 GMT

One of my students wrote this entertaining essay:

I, like many of my peers, have always fancied myself a strong writer. It was not until recently that I was able to see how very wrong I have been. My first-year legal writing course showed me my stubborn side, and my inability to follow instructions. I’m a selfish writer. I began writing at a young age, as a way to vent emotion. I write because it feels good to write, and I have never really cared what other people think. But I’ve always kind of assumed that I was good at it. I didn’t know until recently that my shortcomings have been masked by good grades in all of my writing classes and near universal praise from friends and family.

In retrospect, I’ve never been good at writing outside of my comfort zone. If a teacher assigned something I wasn’t interested in, I would find a creative way to twist the topic into something that I did want to write about. In undergrad I took a class called “rhetoric of the blues,” and we were supposed to attend a blues show and then write a review of the show and a paper about themes common in blues music. I could have easily found a blues show to attend, but instead I saw a rock band. Then I wrote about the influence of blues upon other genres of music, this band in particular, and how the themes within blues music have made their way into other modern forms of American and British rock music. I completely disregarded the teacher’s instructions. It was actually pretty disrespectful because part of this professor’s goal was, I think, to get young people to appreciate actual blues musicians and support their music in the Austin scene. I got an A+ on the paper and some warm praise for my creativity. I got away with this behavior throughout college. I always bet that if I entertained the professor by standing out from the rest of the stack of papers, I would be rewarded for my effort. I was pretty much always right.

But now, I can’t twist the topic presented to me in order to make it suit my own interests. If a legal writing professor or employer asks a specific question, I must answer that precise question. This is the main difference that I see in legal writing, as opposed to any other writing I have ever tried. Legal writing is about precision, and there is no room for BS. This is why legal writing is in its own category. The goals are different from other writing. The purpose isn’t to entertain me or anyone else, and it isn’t merely to inform; the purpose of legal writing is to solve problems and answer specific questions.

With creative writing, I just start writing and see where I end up; later, I go back and pick out the good stuff and discard the rest. But that approach wasn’t right for legal writing assignments. I wanted to present a tight, concise, pretty package--but I always felt like I was spinning my wheels. I wanted a clean conclusion and a black-and-white answer to the question presented. But an easy answer is almost never going to be possible (or even desired) when writing for a law class or clerkship assignment. And my brain doesn’t know how to deal with that, so I’m left feeling just like a hamster spinning its wheel.

Last spring I began working on the research for my final legal writing memo the day we got the assignment, but I never felt myself making any progress. I might have been able to pull off the writing if I had been any good at the research. But alas, I was not. So instead I went off on the most glorious tangent about laches. I won’t tell you how many pages I spent on this tangent; it’s embarrassing. But I will tell you that the frustration of my professor was communicated to me on the feedback report via multiple exclamation points. It turns out that laches was something that you could have mentioned, but only in passing. It was not meant to be the meat and potatoes of your final paper. In retrospect, my professor practically led me to the proverbial water, but she could not make me drink.

In my defense, I have done some strong writing on the job. But in both of my jobs before law school, I was required to put my own spin on things, and I controlled the format. The writing I was required to do was not challenging for me, and it certainly didn’t require the type of research that a legal research and writing paper demands. The writing on those jobs didn’t teach me to work within someone else’s framework.

I’m not reveling in my bad behavior; I’m just trying to diagnose myself so I can get better. Developing my legal writing is important to me. Before law school, I worked with an attorney who was able to break down a massive piece of legislation (500 pages I think) into what we called the “Operational Overview” document. It was similar to the section-by-section analyses that the House Research Organization creates, but it was a lot better. It was sophisticated because it captured the far-reaching effects of the bill. But it was simple enough that we were able to provide it to all the employees who attended our statewide industry conference (including executive assistants, technicians, attorneys, public relations executives, etc. etc.). It answered the right questions, but was readable to anyone--even people who knew nothing about our industry. And years after the fact, people from all over the country would call me asking for a copy because similar legislation was percolating in their state and they’d heard we had this great document that explained it all.

That’s the kind of writing that I aspire to, and part of what motivated me to come to UT-Law in the first place.

Write better faster

Wayne Schiess — Fri, 11 Sep 2009 11:11:00 GMT

A recurring question I get from lawyers, law students, and other readers is how to implement the writing advice I present while working under harsh deadlines and heavy workloads. “I want to write better,” these lawyers say, “and I know the things you recommend are good. But I just don’t have the time.”

A variation of this question is this comment: “Even if I had the time, the client won’t want to pay my fee if I take the time necessary to implement all the writing techniques you recommend.”

So the ultimate question is this: “How can I write better faster?”

I decided to raise this question on my blog <blog.legalwriting.net>, and I present here the advice I usually give combined with the best ideas from real lawyers who deal with real clients and real deadlines.

Learn to compose rapidly.
Get a draft down fast by shutting out your editor or “judge.” Save editing for later. Just write, and write fast. Train yourself to type faster-75 words per minute at least. Or speak into a voice-recognition program (and accept that you’ll have to edit differently because we tend to speak differently from the way we type). If you must, compose in quiet or after work hours, away from distractions. And start composing earlier in the process.

Spend time on an outline.
A good outline, especially one that has complete sentences, will make the composing go faster. The more detailed the outline, the faster the composing will go. The better the outline, the less time you’ll have to spend re-ordering. The earlier you start the outline, the more payoff you’ll get from outlining.

Raise your writing IQ.
Attend legal-writing CLE courses, read books on legal writing, and study the best sources on English and legal usage. Your goal is to speed up both composing and editing. The more you know, the fewer writing slips you’ll make and the more time you can save on editing. Although you’ll never consider a first draft a final product, your first drafts will get better and better.

Thoroughly understand the material.
Even though it will take time up front, pay this price because it will save time during composing and editing. If you are unsure of the substantive content, your writing will suffer. Writing cannot be truly clear and effective if you don’t understand what you’re writing about.

Establish and stick to deadlines.
Use deadlines for each part of the project. Create and follow a routine for completing all major writing projects, with deadlines for researching, outlining, composing, proofreading, and editing. Create an editing checklist of everything you know you’ll need to check. As you raise your writing IQ and as you work and re-work your routine, your editing checklist will get shorter.

Stop making excuses.
Don’t blame your mediocre writing on short deadlines or heavy workloads. Find a way to make the time to revise extensively; revising is the only way to make mediocre writing good. Work late, work weekends, or eat the hours if you think the client won’t pay. Even decline projects if you must. But do the work necessary to produce a well-polished product. If you do it right every time, you’ll get faster at doing it right. If you never or rarely do it right, you won’t get faster.

I hope one or more of these techniques will work for you, so you can write better faster.

Wayne Schiess
Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand | Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide

Splitting infinitives

Wayne Schiess — Tue, 08 Sep 2009 15:33:00 GMT

If you need a short introduction to the split infinitive, see below.

Suppose you are writing a brief about the Americans with Disabilities Act and its requirement for employers to provide a "reasonable accommodation." In the brief, you find yourself wanting to use the phrase "to reasonably accommodate." It's useful in several places. Should you use it?

Let's put aside any argument that "to reasonably accommodate" means something slightly different from "to provide a reasonable accommodation." In the context of a brief on this subject, I think our readers will rightly assume that when you write "to reasonably accommodate," you are invoking the statutory language and requirement.

Rather, the question is whether you should split the infinitive phrase "to accommodate" with the adverb "reasonably." Some percentage of your readers will be oblivious to the split, and some will be well-informed enough to know that splitting is okay. What you are worried about are those who think all splitting of infinitives is wrong. You'd prefer not to distract or annoy even those readers. Yet you can't bring yourself to write "reasonably to accommodate" or "to accommodate reasonably" because those phrases sound stilted to you.

What to do?

I would split it anyway. Too bad for my uninformed readers. But I'm not a practicing lawyer with a client's rights on the line. What would a serious practicing lawyer do?

The split infinitive--an introduction
There’s never been a “rule” against splitting an infinitive (to + verb root, as in “to write”). So it’s okay to insert an adverb between “to” and the verb, as in “to truly understand.” This supposed rule started as a misguided effort by early English grammarians to make English like Latin, in which the infinitive is a single word, like scribere (to write). If you can’t split infinitives in Latin, they ruled, then you can’t in English.

But the “rule” is really a suggestion, and experts have said so for years:

“[T]here are times when splitting the infinitive is preferable to not splitting it.” Karen Larsen, The Miss Grammar Guidebook 2 (Oregon State Bar 1994).
“It is permissible to split an infinitive . . . .” Joan Ames Magat, The Lawyer's Editing Manual 14 (Carolina Academic Press 2008).
“There is no ‘rule’ in English about split infinitives-just the common-sense suggestion that adverbs should be placed where they sound best.” Terri LeClercq, Expert Legal Writing181 (U. Tex. Press 1995).