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Attorneys often argue to a Court that, if the Court does something in the future, a particular result will follow.

For such"future" arguments, which is correct?:

A. If the Court grants the motion, then the defendant will go out of business.

B. If the Court were to grant the motion, then ....

Does it matter if one is arguing for or against the Court granting the motion? I.e., if I don't want the Court to grant the motion, do I use "were"?

I think "A" is correct, because the attorney wants to argue that if x happens, y will happen and, then argue that X is bad. Not that y may happen.

My colleague (and many attorneys I've spoke with) thinks B is correct because by using the subjunctive, it indicates that we don't want the Court to do "x". By using the indicative, they argue, it suggests that the future event is necessarily going to occur.

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I'd say the choice between simple present and subjunctive has no real implications regarding whether the speaker either wants or expects some hypothetical event to happen (or not).

Having said that, here's an example context showing that only the subjunctive can be used if it's known that it won't happen...

If you inherited a fortune, would you quit your job?
I don't have any rich relatives, so the situation would never arise.
I know, but if you were to inherit, would you quit?

But note that this is a contrived context that absolutely requires stress on the word were. It's tricky to figure out how that would go down in OP's courtroom context, because I can't really imagine counsel for the defense speaking like that. It's just not an appropriate diction for the context.

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The issue raised is more one of rhetoric and tone than of grammar, per se. There are a number of sites that discuss "future real conditional" and "future unreal conditional", but each of these is an ESL site, leading me to believe that rather than real grammatical entities, they are pedagogical artifacts to instruct in conventional usage. They are somewhat relevant to your question in that, in their terminology, your first example, "if the court grants..." would be classified as "future real conditional", while the second, "if the court were to grant" would be classified as "future unreal conditional". For me, an older and reasonably well educated, native speaker of American English, this sounds bogus, especially in that I find nothing remotely similar in the Chicago Manual of Style.

That said, it is certainly true that the use of present subjunctive ("if the court grants..." sounds much more emphatic than the equally possible past subjunctive ("if the court granted"). As noted above, the real issue is tone rather than correctness. "If the court grants..." sounds like the statement of a well known and universally agreed upon principle, whereas "if the court granted" (or its many equivalents, "were the court to grant" and so forth) is a little more modest, a little less emphatic. For some of us skeptics, the use of the more assured present subjunctive would lead us to question the source and accuracy of your assumption: "Why do you believe that?"

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  • Thanks to both of you. Very helpful, especially Prester John's observation that using the "were to grant' is more "modest." I don't think that's what my colleague intends, but there is a tendecy to avoid direct, unqualified statements which may come off as disrespectul or lacking in humility before a higher authority. – Moosbrugger Aug 30 '16 at 20:03

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