The Ethics of Pronouns in Legal Writing

Ellen Lockwood, ACP, RP

Language is constantly changing. New words are created, old words take on new meanings, and even grammar evolves. Legal writing is often slow to change. Most of us still have at least a few forms with outdated terms such as “comes now,” “aforementioned,” and “witnesseth.”

One change that we all need to make immediately is to remove gendered pronouns from our writing. Gone are the days when using “he” or “him” was the appropriate default pronoun. Legal writing should not only avoid legalese, it should also be inclusive.

Most sentences can be rewritten to avoid gendered pronouns, as described in the examples below.

 

• Original

If a paralegal becomes aware of a client who is copying content without permission, he should bring that information to the attention of his supervising attorney.

 

• Repeat the Noun

If a paralegal becomes aware of a client who is copying content without permission, the paralegal should bring that information to the attention of the paralegal’s supervising attorney.

 

• Make the Noun Plural

When paralegals become aware of a client who is copying content without permission, they should bring that information to the attention of their supervising attorneys.

 

• Drop the Pronoun

If a paralegal becomes aware of a client who is copying content without permission, the information should be brought to the attention of the supervising attorney.

 

• Use “Who”

Paralegals who become aware of a client who is copying content without permission should notify their supervising attorneys.

 

• Rewrite the Sentence

If a client is copying content without permission, the paralegal should bring that information to the attention of the supervising attorney.

 

The use of “he/she” or even “he/she/they” has always been awkward and should be avoided. Further, using a slash to list two or more pronoun options may give the impression that the writer is not willing to make the effort to rewrite the sentence.

The use of “they” as a singular pronoun is common in speech but is often viewed as grammatically incorrect in legal writing. Although it is gaining wider acceptance, it is probably best to avoid using “they” as a singular pronoun unless it is the preferred pronoun of the person to whom the document is referring.

At least one state has issued an ethics opinion regarding gendered pronouns. A judge wanted to require a singular pronoun be used for a singular person in the judge’s court, even if an attorney or party had advised the court that their preferred gender pronoun is “they.” The judge’s concern was that using a plural pronoun to refer to a single person could create confusion in the record. In its opinion, the New York Advisory Committee on Judicial Ethics stated the judge may not require the use of “he” or “she” when someone has advised the court that “they” is their preferred pronoun. (N.Y. Adv. Comm. on Jud. Ethics, Op. 21-09 (2021))

In addition to removing gendered pronouns from legal documents, paralegals should strive to remove gendered pronouns and other gendered terms from speech and other types of writing. Many companies, including law firms, encourage their employees to include their preferred pronouns in their email signature, and are updating HR materials with gender neutral language. The terms “spouse” and “partner” are preferred by many to “husband” and “wife,” even by those who otherwise use gendered pronouns. There are also numerous gendered terms used in the workplace that should be changed to gender neutral terms such as “work hours“ instead of “man hours” and “crewed” instead of “manned.”  If planning an event, ask registrants for their preferred pronouns and include that information on each registrant’s nametag.

Although it takes thought and effort to make these changes, paralegals must keep up with the evolution of language and writing, especially legal writing. It is significant not only to the people about whom we are writing, but often has far-reaching effects.

 

Ellen Lockwood, ACP, RP, (she/her/hers) is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters. She may be contacted at ethics@txpd.org.