Details of Persuasive Legal Writing: Choosing “And” or “But”

In the midst of writing a bench memo, I wrote the following sentence (which I have since completely changed) and struggled about whether I should use “and” or ”but”:

“In Sum, the issue before the Ninth Circuit was whether the petitioner, who was admitted into the United States at a point of entry as a lawful permanent resident and was only admitted as such because he misrepresented his status, was eligible to apply for a § 212(h) waiver.”

It occurred to me that I often have a debate with myself over the proper use of and/but.   There are clear times when “and” is more appropriate, (but/and) there are clear times with “but” is more appropriate.  When either one might work, it seems like my default is to use “but” without much thinking.  But this choice deserves more attention because these words subtly communicate inclusion and exclusion.

“And” and “but” are conjunctions, meaning they link two clauses of a single sentence.  Using “but” in some way negates or undermines the preceding clause in favor of the succeeding one. By contrast, “and” tends to convey the existence of both clauses together.

When I chose to use “and” in the above sentence, I did so because the Court ultimately concluded that the petitioner was “admitted” as defined by the statute despite the fact that the admission was substantively unlawful (as he has misrepresented his status at the time of admission). Using “and” is consistent with the Court’s holding that the term “admitted” can include substantively unlawful admissions and more accurately summarizes the decision. It also subtly leads the reader to the Court’s conclusion. Had I used “but,” it would have negated the portion of the sentence that refers to lawful admission.

Although this example is one where I was simply trying to most accurately summarize judicial precedent, it is easy to imagine how using “and” or “but” can subtly persuade.  The petitioner in Sum, for example, who was arguing that his substantively unlawful admission was not an “admission” as defined by the statute, would be best served by using “but.” For example,

“Petitioner was admitted into the United States at a point of entry as a lawful permanent resident, but was only admitted as such because he misrepresented his status.”

Using “but” calls into question whether the petitioner was “admitted” as defined by the statute.  Conversely, the government would have been best served by using “and.” Both are proper recitations of the facts, but they subtly convey different meanings.