Clauses vs. Phrases

Clauses

When we write, we don’t add words one by one. Instead, we manipulate chunks of words. We call these multiword groups either clauses or phrases. The sole distinguishing feature between the two is the conjugated verb. If a group of words has a conjugated verb in it, it’s a clause. If it doesn’t, it’s a phrase. As simple as that.

The clause constitutes the big cannon of the language, the structure capable of carrying the most throw-weight. But way too many legal writers roll out the canon of the clause, light the fuse, stand back, and BOOM . . . out comes a ping-pong ball. They use the big clunky clause to say something quite simple. They don’t omit needless words. They don’t make every word tell.

Phrases

A phrase, on the other hand, has no conjugated verb in it. A few examples include prepositional (“a government of the people, by the people, and for the people shall not perish from this earth”), infinitive (“to boldly go where no man has gone before”²), present participial (“The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.”³), and past participial (“An Act of Congress is a statute enacted by the United States Congress.”⁴).

Clause-Starters: That vs. Which

Various words in the English language start clauses. For present purposes, we’ll focus on two of the relative pronouns, words that start adjective clauses (that, which, who, whom, whose).

Most writers don’t understand the differences between a that clause and a which clause. Some might flip a coin: heads that, tails which. Others might use the sounds-best approach, usually opting for which as the more intelligent-sounding word. But from now on, readers of this article will use the correct approach, using that when they mean that and which when they mean which. There is, after all, a big difference.

To flesh out the differences between these two words, we turn to . . . drum roll, please . . . the Cow Pie-Chart Analysis (be careful how you hyphenate that expression). Let’s suppose you own a cattle ranch. A raging storm strikes in the dead of night: lightning . . . strong winds . . . hail. The next morning, your ranch manager—a noted grammarian—comes up to the big house, knocks on the door, and says one of two things:

1. The cows that slept in the barn survived the storm.
2. The cows, which slept in the barn, survived the storm.

Restrictive vs. Nonrestrictive Clauses

Understanding the differences between that and which requires an understanding of restrictive and nonrestrictive clauses. The word that introduces restrictive clauses, which nonrestrictive. Let’s draw a pie chart to show the differences between restrictive (that) and nonrestrictive (which).

Let’s see what the farm manager means if he uses a restrictive that clause. Study the next Cow Pie Chart.

Using the restrictive that clause, the farm manager divides the herd into two groups: (1) those cows that did sleep in the barn (the slice out of the pie), and (2) the other cows that did not sleep in the barn (the remainder of the pie).

Now let’s see what the farm manager means if he uses a “comma which” clause:

As you can see from the above Cow Pie Charts, if your manager uses the restrictive that clause, some of your cows did not sleep in the barn, and you might have some dead cows out there in the lower 40.

But if he uses the nonrestrictive which clause, all your cows slept in the barn and survived.

Here’s why.

A restrictive clause singles out a subset from the larger universe. Thus, in our cow example, the expression—the cows that slept in the barn—singles out the alive cows in the barn from the (perhaps dead) cows not in the barn.

From the sentence, we don’t actually know whether the other cows, the ones that did not sleep in the barn, survived or not. They might be munching clover over there next to the fence or lying belly up next to the tractor.

But we do know, from the restrictive clause, that not all cows slept in the barn. Some grazed outside when lightning struck.

A nonrestrictive clause, on the other hand, does not carve up the universe represented by the modified noun. Here, the statement—the cows, which slept in the barn—means that all cows slept in the barn, none having to face the harsh elements of the storm.

So what governs the farm manager’s choice?

The reality of the situation.

If all cows slept in the barn, he must use the nonrestrictive “comma which” clause. But if some cows did not sleep in the barn, he must use the restrictive “that” clause.

Does It Matter?

You might wonder whether all this matters. Leading gurus in effective writing say that it does.

Here are Mr. Strunk and Mr. White:

That is the defining, or restrictive pronoun, which the nondefining, or nonrestrictive. . . . [I]t would be a convenience to all if these two pronouns were used with precision. Careful writers, watchful for small conveniences, go which-hunting, remove the defining whiches, and by so doing improve their work.⁵

Here is Bryan Garner:

Legal writers who fail to distinguish restrictive from nonrestrictive clauses—and especially that from which—risk their credibility with careful readers. It’s therefore worthwhile to learn the difference so well that, when writing, you use the correct form automatically.⁶

Many Legal Writers Confuse That and Which

The Supreme Court got it right when it correctly wrote in General Electric Co. v. Joiner:

But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.⁷

Strangely enough, the First Circuit misquoted Joiner in Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co.:

“But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.”⁸

I can only surmise that Microsoft Word’s grammar-checker flagged that as incorrect. Or perhaps it was an overly helpful law clerk. Surely not the circuit court judge.

Now Let’s Learn to Cut Unnecessary Clauses

I do agree with Strunk and White’s advice to go on a which hunt. Literally. Once you finish writing a memo or brief or patent specification, do a word search for which.

When you launch your which hunt, follow these steps. When your cursor lands on a which, do the following:

1. Change which to that if the clause is restrictive.
2. Keep which if the clause is nonrestrictive, and make sure the mandatory commas are present.
3. Then engage in clause-cutting.

Cutting Clauses That Use the Verb To Be

Look to the right of which-that and you’ll find a verb. The verb to be (am, is, are, was, were, been, being, be) typically has one of five structures following it: (1) an ‑ing verb, (2) an ‑ed verb, (3) an adjective phrase, (4) a prepositional phrase, or (5) a noun. When you encounter a to be clause with the Big Five, you should typically cut the clause down to (1) an ‑ing phrase, (2) an ‑ed phrase, (3) an adjective phrase, (4) a prepositional phrase, or (5) a noun appositive. To illustrate:

1. If the verb to be is followed by an ‑ing verb, drop the that is, that was, etc., and use just an ‑ing phrase (a present-participial phrase).

• The remarks that were ending his argument convinced the jury.
• The remarks ending his argument convinced the jury.

2. If the verb to be is followed by an ‑ed verb, drop the that is, that was, etc., and use just an ‑ed phrase (a past-participial phrase). Please note that not all past participles end in ‑ed. The past participle of drink is drunk; of see, seen; of build, built; of set forth, set forth. Basically here you’re looking for passive-voice clauses.

• The allegations that are set forth in the plaintiff’s complaint include . . .
• The allegations set forth in the plaintiff’s complaint include . . .

3. If the verb to be is followed by an adjective phrase, drop the that is, that was, etc., and use just the adjective phrase.

• The issues that are pertinent to our case include . . .
• The issues pertinent to our case include . . .

4. If the verb to be is followed by a prepositional phrase, drop the that is, that was, etc., and use just the prepositional phrase.

• The law firm that is near the metro . . .
• The law firm near the metro . . .

5. If the verb to be is followed by a noun, drop the that is, that was, that were, etc., and use just a noun appositive. In this example, I’ll use a nonrestrictive which clause.

• Jackson, which is a landmark case, held that consent is not required.
• Jackson, a landmark case, held that consent is not required.

We’ll revisit the Big Five when we learn about 10 power structures below. Stay tuned.

Cutting Clauses Using an Action Verb

Again, you’re engaged in a which hunt. As discussed above, you first determine whether the clause is restrictive or nonrestrictive and then use either that (restrictive) or which (nonrestrictive) (with commas). Once you fix the relative pronoun, look to the right of which-that and you’ll find a verb. If that verb is not the verb to be, then it necessarily is an action verb. So you do the following:

1. If the action verb in the clause has its own independent subject, that is, some word other than that acts as the subject, you have the option of dropping the word that.
2. The cases that the Federal Circuit decided include several establishing new law.
3. The cases the Federal Circuit decided include sev eral establishing new law.
4. If the action verb in the clause does not have its own independent subject, that is, the word that acts as the subject, then you can convert the clause to an ‑ing phrase.
5. The regulations that require this procedure include §§ 101.1, 123.23, and 233.13.
6. The regulations requiring this procedure include §§ 101.1, 123.23, and 233.13.

Ten Power Structures

Above you learned the gist of clause-cutting. Basically, simply robbing a clause of its conjugated verb converts it to a phrase. In the to be clauses, we learned about five structures I call the Big Five: ‑ing phrases,‑ed phrases, adjective phrases, prepositional phrases, and noun appositives. Now we’ll revisit the Big Five and see how they appear in 10 structures the world’s greatest writers use all the time. You’ll recognize some. Others you’ve never thought about at all. (I know I hadn’t, until I learned about them.)

Five of the 10 are truncated clauses, the other five noun absolutes. All use the Big Five: ‑ing phrases, ‑ed phrases, adjective phrases, prepositional phrases, and noun appositives.

Truncated Clauses

To form a truncated clause, we take a subordinating conjunction and add the Big Five. A subordinating conjunction introduces a subordinate clause (a dependent clause). We have scads of them in the English language: after, although, as, as far as, as if, as long as, as though, because, before, how, if, in order that, provided that, since, so (that), that, though, till, unless, until, what, whatever, when, whenever, where, wherever, while, and others.

Noun Absolutes

These might not be as familiar. To form a noun absolute, we take a noun or a pronoun and add the Big Five.

Prevalence of the Noun Absolute

Noun Absolutes in Claim Language

Back in 1993, when I joined the Finnegan firm and started to read patents, I was delighted to discover that the single most prevalent structure in claim language is . . . the noun absolute. Look at some examples:

• Noun + –ing Phrase: “each radial support having a length and a substantial open area formed substantially along the entire length of the radial support”
• Noun + –ed Phrase: “A method of management of a wireless device by processor, comprising: receiving transportation data reflecting a transportation schedule associated with the device, the transportation schedule determined by a logistics delivery system . . . .”

Patent drafters don’t have a monopoly on the use of noun absolutes. The world’s greatest writers turn to this structure over and over again. You’ll find noun absolutes in award-winning song lyrics and in great literature.

Noun Absolutes in Song Lyrics

• Noun + Prepositional Phrase: “On a dark desert highway, cool wind in my hair / Warm smell of colitas rising up through the air / Up ahead in the distance, I saw a shimmering light / My head grew heavy and my sight grew dim / I had to stop for the night.”¹³

Noun Absolutes in Literature

• Noun + –ing Phrase (two in parallel): “There was no bus in sight and Julian, his hands still jammed in his pockets and his head thrust forward, scowled down the empty street.”¹⁴
• Noun + Prepositional Phrase: “The man stood laughing, his weapons at his hips.”¹⁵
• Noun + Adverb, Noun + –ing Verb (two in parallel): “Six boys came over the hill half an hour early that afternoon, running hard, their heads down, their forearms working, their breath whistling.”¹⁶

Conclusion

To streamline your style, always use the least intrusive structure needed to carry your thoughts to your readers. When you do, they won’t have to trudge through unnecessary words looking—often in vain—for your substance. So learn to identify clauses and figure out if you truly need them. Perhaps a phrase will do. Perhaps just an adjective. Perhaps a possessive noun. As you explore your dependent clauses, ensure that you distinguish between restrictive and nonrestrictive adjective clauses. Use that for restrictive clauses, which for nonrestrictive. The gurus say that it matters. Believe them.

Endnotes

1. William Strunk Jr. & E.B. White, The Elements of Style 23 (4th ed. 2000).

2. Star Trek (NBC television series 1966–69).

3. Palsgraf v. Long Island R.R., 162 N.E. 99, 99 (N.Y. 1928).

4. Act of Congress, Wikipedia, https://en.wikipedia.org/wiki/Act_of_Congress (last modified Dec. 1, 2016).

5. Strunk & White, supra note 1, at 59.

6. Bryan A. Garner, Garner’s Dictionary of Legal Usage 888 (3d ed. 2009).

7. 522 U.S. 136, 146 (1997). The Latin phrase ipse dixit means “he, himself, said it.” The phrase puts down an argument made solely on the arguer’s “say so.” It acts as a noun. Pronounce it “ip-suh dix-it.”

8. 161 F.3d 77, 81 (1st Cir. 1998) (misquoting Joiner, 522, U.S. at 146).

9. Palsgraf v. Long Island R.R., 162 N.E. 99, 99 (N.Y. 1928).

10. U.S. Const. amend. II.

11. Palsgraf, 162 N.E. at 99.

12. Ernest Hemingway, For Whom the Bell Tolls 1 (Scribner 1996).

13. The Eagles, Hotel California, on Hotel California (Asylum Records 1976).

14. Flannery O’Connor, Everything That Rises Must Converge, in Everything That Rises Must Converge 8 (1965).

15. Stephen Crane, The Bride Comes to Yellow Sky, McClure’s Mag., Feb. 1898, at 377, 382.

16. John Steinbeck, The Red Pony (1937).