Dear Legal Writer: which vs. that

✏️ Dear 1L Writer,

We need to have a little chat about “which” and “that.”

You are all using “which” WAY too much.

In today’s holiday (sort of) spirit and for Halloween, I dispense with formal grammar terms and all of the examples you can easily find online.

My aim is to try to give you a way you might remember, even if it’s kind of corny.

* * *
Haverstick Halloween Rules:

🧙‍♀️ 1:

“Which” rhymes with “witch.”
Witches are bad.

So ditch the “which.” Use “that.”

You’ll be right 90% of the time (or more).

—If you’re still sure that “which” is right, test it on Rule 2.

🎃 2:

Test: Ditch the whole “which” clause. Does the sentence still make sense and say what you mean?

If yes, the “which” clause can stay if you absolutely must.

—But follow Rule 3.

🧹 3:

Like a witch needs her broom to take flight,
a “which” needs two commas to be right.

Always use commas around a “which” clause.

Contain that evil witch.

* * *

If the above is too kitschy for you, here are some formal sources on “which” vs. “that” (N.B. Do not rely on these for Bluebook form): Bryan A. Garner, “Garner’s Modern English Usage,” at 900-02 (4th ed. 2016); Mignon Fogarty, “‘Which’ versus ‘That’ – Quick and Dirty Tricks,” (Mar. 21, 2008) (grammargirl. com); see also Mark Herrmann, “The Curmudgeon’s Guide to Practicing Law,” at 4 (American Bar Ass’n 2019); Bryan A. Garner, “The Scribes Journal of Legal Writing v.13, at 38 (Scribes 2020) (interview with Chief Justice John G. Roberts, Jr.).

* * *

📫 How do you remember when to use “which” or “that”?

The more (sort of memorable) options for students to choose from, the better.

Fondly,

💌 Amanda