Now that we have mastered the possessive-before-gerund issue (Rule 39), and taken a break from grammatical esoterica last month, it is time to tackle the subjunctive mood.
The subjunctive mood has almost disappeared from modern writing. But it is still alive. The very day I was composing this article on subjunctives, I picked up our local newspaper, and James Jackson Kilpatrick's column was headlined "If I was you, I'd say 'were.'" Great minds, etc.
Though Bryan Garner states that subjunctives are "concededly obsolete for the most part in English," he gives various examples of where they are necessary, and some good examples of how lawyers frequently misuse the subjunctive, either by omission or commission.1
A wish is subjunctive, because wishing means that the thing wished for is not presently true "I wish I was..." is never correct. Phrases beginning with if often require the subjunctive verb, but only if they express something contrary to present fact. "If the court were [not was] made up differently . . .." But "If he goes [not go] ten miles, he will be in Stratford" is not subjunctive, because it simply state a conditional fact.
Why should lawyers care? Because just like leaving out a serial comma (see Rule 24), the misuse of subjunctive mood can lead to ambiguity — and some court will construe your language against your intention.
Here are some recent examples where the subjunctive made a difference, the first from the U.S. Supreme Court, no less:
* "In Wong Wing, we hypothesized that detention 'necessary to give effect' to the removal of an alien 'would be valid'; the use of the subjunctive mood makes plain that the issue was not before the Court."2
* "Furthermore, the examination of the particular language employed in the Liquidation Instructions prompts the Court to conclude that Commerce's use of the subjunctive mood, specifically Commerce's choice to begin the directive with the word "if," demonstrates that Commerce indeed was doubtful . . ."3
* "The phrase 'had he lived' in our wrongful death statute merely expresses in the subjunctive mood the contrary-to-fact situation that if the decedent had lived, which he did not, he could have brought a personal injury action for the death-causing injuries."4
So what is this pesky relic? I cannot hope to explain it in detail here, even if I could understand it myself. It is the opposite of the indicative mood, as if that is any help. The best explanation is in Garner's Dictionary of Modern American Usage, though the discussion in Dictionary of Modern Legal Usage — which you already have on your desk if you have heeded all my imperative (not indicative or subjunctive) entreaties in past columns — is also helpful.
Now, the subjunctive is used to signal contrary-to-fact conditions, or suppositions. Historically, the subjunctive was used to convey any conditional thought, whether contrary to fact or not.5 That usage is now archaic. Kilpatrick even lists the mandative subjunctive, the optative subjunctive, the formulaic subjunctive, and the present and past subjunctive. Wow! And we thought lawyers could nominalize and categorize. Kilpatrick is quick to point out that those categorizations are obsolete.6
Garner explains that the subjunctive form survives in six contexts:
* Conditions contrary to fact: "If she were [not was] president," or "If he were [not was] older, she could go to the dance," or "If a wish were [not was] a horse, then a beggar would ride." None of the facts are true—she is not president, he is not older, wishes are not horses.
* Suppositions: "Supposing I were [not was] president," or "If I were [not was] to run for president, I might lose," or "Even if there were [not was] only one size, it would not fit," or "Were the situation reversed … ," or "Hypothetically, doctor, if the wound were (not was) properly sutured … ."
* Wishes: "I wish I were [not was] president," or "Would that I were [not was] rich."
* Demands: "I insist that she go [not goes] to school," or "We demand that the school be [not is] closed."
* Suggestions: "I propose that our profession commit [not commits] itself to plain language," or "I suggest that judges be [not are] appointed on merit."
* Statements of necessity: "It is necessary that he be [not is] trained," or "It is imperative that the checks and balances be [not are] operating."
Many of the formulations come naturally to us; a few are problematic. The above examples should provide some guidance. But I suggest that you go (would be go indicatively also — many times we use the subjunctive without examination, because the verb form is the same) to one, or both, of Garner's explanations.
But when you are asking about a past condition and implying nothing hypothetical or contrary to fact, then the simple past tense is correct: "In Simms, our court stated that the rule would apply only if the auto was [not were] driven by the owner." Here, there is some doubt, but not something contrary to fact or hypothetical. The auto was or was not being driven by the owner. Clear?
As with many grammatical issues, it is best to use your ear, provided (not providing) that your ear has been trained to recognize the proper use of subjunctives.
In the last two columns, I have asked for questions. I have only received one, which I answered last month. I am still waiting for more. Send to jugpainter@aol.com.
October 6, 2003
Judge Mark P. Painter has served on Ohio’s 1st District Court of Appeals since 1995, after 13 years on Hamilton County Municipal Court in Cincinnati. He is one of the most-published judges in Ohio history, with more than 270 of his decisions published nationally. He is the author of “Ohio DUI Law, Ohio Appellate Practice,” and