Month: May 2023

By Tenielle Fordyce-Ruff

I’m writing this in January, and as one does in January, I’m reflecting on the past year.  I’m also reflecting on topics I’ve covered as I’m coming back to more regular contributions to The Advocate. Turns out that I haven’t given pronouns any coverage for a decade.  And a lot can change in 10 years.  For instance, a decade ago the Boston Marathon was bombed, Whitey Bulger got life in prison, George Zimmerman was acquitted, and Bradly Manning came out as transgender.[i]  Yet, I had to look all of those up because I no longer mention those in conversation.

On a smaller scale, I predicted that the use of the singular they would become acceptable in legal writing.[ii]  After all, even a decade ago we were using they accurately and consistently in speech and informal writing.  It seems that I managed to accurately predict the future.[iii]  Then, in September 2019, Merriam-Webster expanded the definition of they to be an acceptable singular pronoun in some circumstances.[iv]  This means that them, their, and theirs can sometimes be singular, too.

And while I’m sure some grammar noodges’ heads are exploding at my suggestion, legal writing is also embracing the singular they.  For instance, the Michigan Supreme Court has proposed amending its rules to require the use of names or preferred pronouns, including the singular they, in all writing and oral references.[v]

So, as the singular they is now acceptable, how can we legal writers make sure we use it clearly?  Let’s start with a refresher.

Pronoun Refresher

Personal pronouns replace nouns, and the nouns they replace are called antecedents. Pronouns should agree with the antecedents they replace in gender, person, and number. First person pronouns refer to the speaker or writer (I, me, we, us, my, mine, our, ours, myself, ourselves).

Second person pronouns refer to the person being spoken or written to (you, your, yours, yourself, yourselves).

Third person pronouns refer to someone or something else (he, him, she, her, it, they, them, his, hers, its, their, theirs, himself, herself, itself, themselves.)[vi]

Pronoun Issues?

That pronouns should agree with their antecedent in gender hasn’t been strictly followed by speakers and writers for ages.  As the Maryland State Bar noted on its blog, “If you were to see the silhouette of a backlit person on the street, would you ask, ‘Who is he or she?’ Or, like a normal person, would you ask, ‘Who are they?’”[vii]

This usage isn’t shocking.  English has used they to refer to a singular person of unspecified gender for at least 500 years.[viii]  And they has long been acceptable for indefinite pronouns anyone, no one, and someone.  We can easily write: Go ask someone if they can help.

So, what should we do to help our readers with the problem of referring to a person of unspecified gender?  Well, much of my advice from 10 years ago still works.  Change the antecedent or rewrite the sentence to avoid personal pronouns.

Let’s look briefly at each of these fixes.

Replace the Singular Noun

When it won’t confuse the reader, you can change a singular noun to a plural noun.  For instance, you couldn’t write: The professor must teach its students about pronouns.  But a simple fix works:  The professors must teach their students about pronouns.  There is a little twist to this, however.

Because we now are so used to they as a singular and plural pronoun, it’s best to remove other plural nouns to avoid confusion.  I’ll give you an example from my legal writing professor, mentor, and friend: When deciding difficult cases, Judge Wright exercises their discretion carefully.[ix]

The their in this sentence could refer to either the judge or the cases.  The fix to avoid this confusion is to remove the other plural: When deciding a difficult case, Judge Wright exercises their discretion carefully.

Rewrite the Sentence

Avoiding personal pronouns as a fix takes a little more thought but can help avoid awkward sentences.  If you find that you are writing about someone without knowing their gender, you might be able to convey the meaning without a pronoun at all.

As I pointed out previously, A judge must give instructions to the jury is every bit as clear as A judge must give his or her instructions to the jury. (Note, too, how stilted this his or her sounds!)

Likewise, The accused must waive the right to speak to a lawyer avoids personal pronouns by using articles instead of pronouns (The and a are the articles in this example).  This is a great fix when speaking hypothetically.

Using the Single They Correctly

While each of these works, you don’t need to rewrite every sentence to deal with what is for most of us a non-issue.   Simply use they as a singular pronoun.  But do so consistently and carefully.

While each of these works, you don’t need to rewrite every sentence to deal with what is for most of us a non-issue.

First, recognize that you don’t need to use they instead of every other singular pronoun. They can be used when you don’t know the gender of a person or when that person prefers this pronoun.  But if you’re writing about a case, and that case uses he to refer to a party, you can safely use he, too.[x]  Likewise, if you know that someone prefers gender-specific pronouns, use those.  For instance, I prefer she, so you can write: She has written this column for over a decade.

Second, don’t use they and other personal pronouns interchangeably.  Imagine how confused you would be if I wrote this:

Natalie had a sunny disposition.  She greeted me every morning with a cheery hello.  They were always prepared with a kind word.  He also loved to whistle as they walked.

Do you have any idea if I’m writing about one person, or maybe five?  Changing the pronouns for any single person will only create confusion.

Third, think of they like you.  We have been using context to tell if you is singular or plural for decades.  And we have been using context in speech to determine if they refers to one, two, or more people for years.  Our readers can, likewise, glean what they refers to from context, so long as we carefully look at the context of our writing.  Compare these two sentences:

You are my partner.

You are my partners.

Even though the verb are is plural, we know that in the first sentence, the you is singular and in the second the you is plural.  This works equally well with they.

            They are my partner.

            They are my partners.

Conclusion

Careful writers rewrite and edit to ensure the clarity of their ideas.  Giving attention to pronouns and ensuring that the context gives the reader clues about whether they is singular or plural is simply another item on a good editing checklist.

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[i] Jennie Wood, Major National New Stories of 2013, available at https://www.infoplease.com/current-events/2013/us-news-27 (last visiting February 1, 2023).

[ii] Tenielle Fordyce-Ruff, Problems with Pronouns Part III: Gender-linked Pronouns, 56-JUL Advocate (Idaho) 48 (June/July 2013).

[iii] Suzanne E. Rowe, As Language Evolves Pronouns Leap Forward: They/Them/Theirs, 80 Jan. Or. St. B. Bull. 17 (Jan. 2020); Susie Salmon, Them!, Ariz. Att’y, Oct. 2018, at 10, https://www.azattorneymag-digital.com/azattorneymag/201810/MobilePagedReplica.action?pm=2&folio=10#pg13 [https://perma.cc/7USW-RBET]; Greg Johnson, Welcome to Our Gender-Neutral Future, VT. BAR J., Fall 2016, at 36.

[iv] This isn’t the first time a pronoun has shifted. You used to be only plural and we used thee to refer to a single person.  But we now use you as both a singular and plural pronoun.  Suzanne E. Rowe, As Language Evolves Pronouns Leap Forward: They/Them/Theirs, 80 Jan. Or. St. B. Bull. 17 (Jan. 2020).

[v] https://www.courts.michigan.gov/48efd1/siteassets/rules-instructions-administrative-orders/proposed-and-recently-adopted-orders-on-admin-matters/proposed-orders/2022-03_2023-01-18_formor_propamdmcr1.109.pdf

[vi] Tenielle Fordyce-Ruff, Problems with Pronouns Part III: Gender-Linked Pronouns, 56 Advocate 48 (2013).

[vii] Steve Klepper, The Singular “They” in Legal Writing, Maryland Appellate Blog, https://mdappblog.com/2020/06/30/the-singular-they-in-legal-writing/(last visiting February 1, 2023).

[viii] The New Oxford American Dictionary (3d ed. 2010).

[ix] Suzanne E. Rowe, Using the Singular ‘They’ Clearly: Finessing Gendered Pronouns, 82 March Or. St. B. Bull 17 (Feb./March 2022).

[x] If, however, you know the opinion mis-gendered the party, you can correct that error and use the party’s preferred pronouns.  Just do so consistently.

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By Jillian H. Caires

As lawyers, we have a tough job. We work long hours and feel a hefty pressure to obtain the best possible outcomes for our clients. Attorneys meet clients and victims in their hour of greatest need and walk alongside them as they navigate crisis. Our judges see some of the darkest parts of humanity daily. We can all likely empathize with the stress of law school and studying for the bar exam. Additionally, as Idaho lawyers, we go through long, dark winters, which, in my opinion, multiplies the weight we feel as lawyers (thank goodness it is FINALLY spring!).

Most of us have experienced stress from our work – in my career, I have experienced physical manifestations of stress such as a chronically sore shoulder and I have gone through periods of burn out. We have also likely all known colleagues in the legal profession who have self-medicated with alcohol or drugs or been diagnosed with anxiety or depression. One of my law school classmates tragically took his own life several years ago, a shock to those who knew him as an upbeat friend who would lift others up. Sadly, many of us have been touched by this type of tragedy.

The first full week of May is Well-Being Week in Law[1], and May is Mental Health Awareness Month; a month focused on building awareness about, and breaking stigmas around, mental health.[2] “Mental health includes our emotional, psychological, and social well-being. It affects how we think, feel, and act. It also helps determine how we handle stress, relate to others, and make choices.”[3] In a profession where we often tend to the needs of others before our own and in a state with a suicide rate higher than the national average, it is critical that we take time as individuals and as a profession to build our mental health awareness.[4] Maintaining well-being is part of lawyers’ ethical duty of competence.

We are instructed by airline attendants that in case of emergency, we must secure our own oxygen mask first before we help others. The same is true when it comes to taking care of our own mental health and well-being: we must take care of ourselves first if we are to successfully help others. Part of taking care of ourselves is knowing what warning signs to watch for. Some warning signs of mental health problems include: withdrawing from people or activities; eating or sleeping too much or too little; experiencing a drop in energy levels; feeling hopeless; increasing use of substances; and thinking of harming one’s self or others.[5]

As a Board of Commissioners, we took time last fall to develop our strategic vision for the Idaho State Bar. One focus of that strategic vision is supporting the well-being of our members. If you have a passion for well-being, please keep your eyes open for an opportunity to join the Bar’s Well-Being Committee which will soon be formed by the Commission.

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[1] https://lawyerwellbeing.net/lawyer-well-being-week/.

[2] https://www.samhsa.gov/programs/mental-health-awareness-month.

[3] https://www.mentalhealth.gov/basics/what-is-mental-health.

[4] https://www.kff.org/statedata/mental-health-and-substance-use-state-fact-sheets/idaho/.

[5] https://www.mentalhealth.gov/basics/what-is-mental-health.

By Maureen Ryan Braley

The Idaho State Bar Admissions Department administers the rules governing admission to the practice of law in Idaho. Attorneys can be admitted by taking the Idaho Bar Exam, transferring a Uniform Bar Examination (“UBE”) score to Idaho, or through reciprocal admission (admission based on practice experience in another state). The Admissions Department also oversees limited admission to the practice of law in Idaho through a House Counsel license (working in-house for an Idaho employer), Emeritus Attorney license (limited license to do pro bono work), Military Spouse Provisional admission (servicemember spouse is stationed in Idaho), pro hac vice admission, and Legal Intern licenses.

Idaho Bar Exam Statistics

A record number of people took the Idaho Bar Exam in 2022. 93 people took the exam in February 2022 and 182 people took the exam in July 2022. The overall pass rate for the 2022 bar exams was 59.6%, which is down over five percentage points from the 2021 overall pass rate of 64.7%. The increase in bar exam applicants was due to the increased enrollment at Concordia University School of Law before its closure in the spring of 2020. Most of the Concordia students transferred to the University of Idaho College of Law and graduated in May 2022. Therefore, we will likely see a decline in the number of people taking the Idaho Bar Exam in 2023.

Reciprocal and UBE Admission Trends

As we know, Idaho’s population grew during the pandemic. We saw higher numbers of reciprocal applicants in 2020 and 2021, with 94 attorneys applying in 2020, followed by a record high 109 attorneys in 2021. Reciprocal applicant numbers returned to pre-pandemic levels in 2022, when 81 attorneys applied for reciprocal admission. Idaho has reciprocity with 35 jurisdictions. UBE applicant numbers have held steady at 50 per year since 2020.

NextGen Bar Exam

In 2018, the National Conference of Bar Examiners (“NCBE”), the entity that develops the UBE, created the Testing Task Force to determine the knowledge and skills entry-level lawyers should be expected to know and how that knowledge and those skills should be assessed on the bar exam. After several years of research, the Testing Task Force recommended that the NCBE develop what it refers to as the “NextGen Bar Exam.” The NCBE is currently conducting pilot and field testing and developing content scope outlines for the NextGen Bar Exam. The NCBE will finalize this work in early 2026, with the NextGen Bar Exam ready to be deployed for the July 2026 bar exam.

In February 2023, the Board of Commissioners of the Idaho State Bar created a NextGen Bar Exam Task Force to monitor developments with the NextGen Bar Exam and consider whether it should be implemented in Idaho.

Spotlight on Belinda Brown, Idaho State Bar Admissions Analyst

A law student’s or lawyer’s first contact with the Idaho State Bar occurs during the admissions process. And since 2009, that first contact has been with Belinda Brown, the Idaho State Bar Admissions Analyst. Belinda handles the intake on all applications for admission. She communicates with dozens of lawyers daily, answering questions about the admissions process and updating them about the statuses of their applications. She is patient, courteous and professional. I have learned a lot from her and am privileged to work with her.

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By Carey A. Shoufler

Title Page Image Caption: 2023 Idaho Mock Trial Champions, The Ambrose School, Meridian.

The Idaho Law Foundation’s Law Related Education Program hosted its annual High School Mock Trial State Championship from Wednesday to Friday, March 15 to 17. For the first time since 2019, the three-day tournament was held in-person. This year, students explored a criminal case that centered on a charge of theft by possession of stolen property charged against a college student who had started a business refurbishing computers for other students.

For 2023, 216 high school students from 24 teams registered to participate in the mock trial competition. One hundred thirty-eight teachers, judges, attorneys, and other community leaders donated their time to serve as coaches, advisors, judges, and competition staff.

Twelve teams advanced from regional competitions held in Lewiston and Boise. These teams participated in four rounds of competition on Wednesday and Thursday at the Ada County Courthouse with the top two teams facing off for the state championship at the Idaho Supreme Court on Friday morning. The following schools participated in Idaho’s state tournament:

• The Ambrose School (Meridian, two teams)
• Boise High School (two teams)
• Lewiston High School
• The Logos School (Moscow, two teams)
• Mountain Home High School
• Thunder Ridge High School (Idaho Falls)
• Timberline High School (Boise)
• Victory Charter School (Nampa, two teams)

The following teams placed in the top four for Idaho’s state tournament:

2023 State Champion: The Ambrose School (A Team)

State Runner Up: Logos School (A Team)

Third Place: Mountain Home High School

Fourth Place: Victory Charter School (A Team)

Mock trial team members who played roles as attorneys and witnesses had the opportunity to be recognized for individual awards. For each trial through four rounds of competition, each judge had the opportunity to select the students they believed gave the best performances for the trial. The top witnesses and attorneys for the 2023 competition include:

As part of the state competition, Idaho’s Mock Trial Program, in partnership with the Professionalism & Ethics Section, developed the Civility & Ethics Award, created to highlight the importance of civility and professionalism among teams participating in mock trial. During the state competitions teams observe and interact with each other and submit their nomination for the award. For 2023, Logos School B Team was chosen by the other teams as the recipient of this year’s award.

Idaho’s mock trial program also hosts a Courtroom Artist Contest as part of the program. Artists observed trials and submitted sketches that depict courtroom scenes. The top three entries for 2023 were:

First Place: Taelyn Baiza (Boise High School)

Second Place: Nam Bui (Lewiston High School)

Third Place: Shalyce Graham (Victory Charter School)

The Ambrose School will represent Idaho at the National High School Mock Trial Championship in May in Little Rock, Arkansas and Taelyn Baiza will represent Idaho in the National Courtroom Artist Contest.

The Idaho Law Foundation’s Law Related Education Program would like to thank the sponsors and volunteers who helped during the 2023 mock trial season. We couldn’t do our important work without your support.

Plans will soon begin for the 2024 mock trial season. For more information about how to get involved with the mock trial program, visit idahomocktrial.org, or contact Carey Shoufler, Idaho Law Foundation Law Related Education Director, at cshoufler@isb.idaho.gov.

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