First, the disclaimer: I am no grammarian. However, I am a lawyer who spends a significant portion of my day in Microsoft Word. So, grammar is an essential part of my livelihood.
I presume no need to lecture on the difference between “your” and “you’re.” If you are reading this article, odds are you understand basic grammar. However, grammar extends well beyond these basic principles. While we might not remember the nuances of verb tenses and punctuation learned in high school, those principles (and their application) could have a lasting effect on your life—or someone else’s.
In January of this year, the United States Supreme Court heard an oral argument in Hewitt v. United States of America, 23-1002. The petitioner in this case is Tony Hewitt, a criminal defendant convicted of conspiracy and bank robbery, among other crimes. Mr. Hewitt was convicted of his crimes and sentenced before enacting the 2018 legislation, the First Step Act. However, his sentence was vacated, and a Judge ordered him to be resentenced. When it came to his resentencing, Mr. Hewitt argued that the First Step Act should apply in his case, giving him the benefit of a reduction in sentencing.
The question before the Court was whether the sentencing reduction provisions of the First Step Act applied to those who had a sentence imposed but later vacated and were later resentenced after the Act was enacted. The First Step Act was a bipartisan attempt to promote rehabilitation for federal prisoners and lower rates of recidivism. Pursuant to the statute, the Act applies to offenses if “a sentence for the offense has not been imposed as of such date of enactment.”
Counsel for Mr. Hewitt argued that based on the statute’s language, those whose sentences were vacated and resentenced after enactment could reap the benefits of the Act. Mr. Hewitt argued that in drafting the statute, the legislature used the present perfect tense, “has not been,” with the preposition “as of,” which “connotes an ongoing condition.” He argued that if Congress wanted those who had sentences imposed and later vacated to not reap the benefits, they would have used the past tense and a different preposition.
The opposition is that the statute’s real meaning hinges on using the indefinite article “a .”In this case, the argument is that “a sentence” means a sentence that is imposed and ongoing, as well as a sentence imposed and later vacated. Under this interpretation, if an individual had a sentence imposed, they were not eligible to reap the benefits of the First Step Act, even if that sentence was vacated.
Many of us may not know the difference between past perfect, present perfect, or future perfect verb tenses or what an “indefinite article” is. Undoubtedly, Congress didn’t think about these principles at the time they enacted the First Step Act. But Congress’s word choice and grammar usage have led to hundreds of hours of research and writing time, many thousands of dollars in attorney’s fees, and (undoubtedly) ongoing stress for those criminal defendants whose future and freedom hinge on the outcome of this argument.
Taking the time to understand verb tenses, punctuation, and principles of grammar could save you, your company, or your client thousands of dollars and hundreds of hours of time and stress. It could mean the difference between five years in prison or fifteen years.
It’s not just verb tenses that can have this effect. One comma can completely change the meaning of a sentence. Compare: “Let’s eat friends,” with “Let’s eat, friends.”
Word choice can be just as important as verb tense or punctuation. For many, the words “will” and “shall” mean the same. However, in the legal community, there is debate over the subtle differences between “shall” and “will” and when each is appropriate. It is understood to many that “shall” implies an obligation, whereas “will” expresses a condition.
While grammatical errors will occur from time to time, we can and should limit the number and scope of those errors. One way to limit those errors is to brush up on verb tenses and punctuation. And, when you are dealing with matters of consequence, always remember to choose your words wisely.
