Lawyers encounter hypothetical scenarios and conditional situations daily, so they must consider what might happen or what could have happened. Two powerful tools help lawyers write about hypotheticals with precision and clarity: the subjunctive mood and conditional phrasing.
- The Subjunctive Mood: Subjunctive mood is a grammar tool that helps express an idea or state of being that is hypothetical, proposed, supposed, requested, demanded, wished for, or otherwise contrary to fact. Lawyers can skillfully use the subjunctive mood to discuss potential scenarios, assess consequences, and convey conditions that rely on uncertain outcomes.
- Conditional Phrasing: Conditional phrasing shows cause and effect in possible situations. Lawyers use conditionals to explain legal tests and outline contractual obligations. Essentially, conditional wording creates a map of possibilities.
If you’ve never heard of the subjunctive mood, you’re not alone. Despite its importance, many native English speakers find the subjunctive mood unfamiliar and challenging. It’s less commonly used in everyday English conversation than in some other languages like Spanish, in which it’s more frequent in constructions such as if/when clauses. (Many English speakers learn about the subjunctive mood only when studying a second language.)
People often try to avoid awkward English subjunctive rules by substituting simpler or expected verb forms. This workaround risks loss of precision and clarity. Improper use of the subjunctive or conditionals could also lead to legal consequences when interpretation relies on the strict application of grammar rules. If you master these tools, your legal writing will gain precision and nuance, and you’ll communicate more effectively. In this article, we will explore subjunctive mood and conditional phrasing in English, demystifying their functions and showcasing their relevance in the legal field.
Since this is probably the only article you’ll ever read on this topic, we’ll give you many examples and variations.
Grammar Cornerstones: Tense and Mood
While many writers may rely on their native speaker instincts or “write by ear,” having a solid grasp of grammar rules and concepts can improve the clarity and precision of your writing. So let’s address some background terms.
Tense and mood complement each other to express a verb’s full meaning. Tense pinpoints when an action happens (past, present, or future), while mood reflects the speaker’s or writer’s attitude or the reality of a situation. Most writers are familiar with tense but unfamiliar with mood. Conditionals are used in if-then statements that link tenses and moods; a correct linking adds depth and specificity to our communication.
English has four moods: indicative, for stating facts and opinions; imperative, for delivering orders, requests, or advice; interrogative, for asking questions; and subjunctive, for wishes, unreal conditions, recommendations, doubts, and hypotheticals. Writers rarely struggle with indicative and imperative moods, but many are lost regarding the subjunctive mood. The subjunctive is a cornerstone in formal writing, especially in legal rules, orders, and requests.
In this article, we’ll teach you when and how to use the subjunctive mood properly. We’ll also introduce you to its cousin: conditional phrasing.
Choosing Subjunctive and Conjugating Verb Forms
Since lawyers deal with ambiguous situations, unknown facts, and unpredictable futures, they must judge the degree of imagination applied to the facts and communicate accordingly. When you’re writing, the choice of the subjunctive mood often depends on one question: Is this already true? By recognizing whether a scenario is factual, possible, or imaginary, we can choose the proper verb forms.
When a sentence has more than one verb, English uses the subjunctive form of the verb showing the action that isn’t necessarily true, might not happen, or did not happen. While other languages do different things to verbs to show the subjunctive, English uses either the past tense or the infinitive (the regular/main/bare form of the verb) to express subjunctive. The fact that English verbs look the same in so many different situations is why even native English speakers have a hard time picking out the English subjunctive.
The table below lays out the most common situations in which English needs the subjunctive and which subjunctive (past tense or bare/regular infinitive verb) to use.
|
|
Desiderative Subjunctive |
Hypothetical Subjunctive |
Jussive Subjunctive |
| When the hypothetical action could/would happen: |
Wishes or untrue things (statements that can be followed by “but that doesn’t happen” or “but that isn’t true”) |
Hypothetical or imaginary scenarios (usually combined with words like if, would, or will) |
Requests, demands, requirements, suggestions (verbs that can be followed by the word that to start a new sentence inside the main sentence) |
| Future Example |
[Not used] |
[Not used] |
The creditor insists that the debt be paid. |
| Present / In General Example |
I wish they visited me more often. I wish she liked pizza. →Exception: I wish I were richer.
If he were present, he would provide guidance. |
If the legislation passed, the tax burden on small businesses would decrease.
If the legislation were to pass, the tax burden on small businesses would decrease. |
The teacher requires that the student complete his assignments in class. |
| Past Example |
I wish she had visited me last year. |
If the legislation had passed, the tax burden on small businesses would have decreased. If the legislation were to have passed, the tax burden on small businesses would have decreased. |
The teacher required that students complete their assignments on time to get any credit. |
Note that English has other, older forms of the subjunctive involving words like lest, constructions like if need be, and the use of certain modal verbs (may, might, and should). These forms are dying out, so we’re not going to cover them here, but to read more about these forms and how other languages use different types of the subjunctive, check out this fun Wikipedia table.
To think about why the subjunctive is important, consider the difference in meaning between these two sentences:
Subjunctive: I insist that Bob be here. (Bob needs to be here some time in the future but is not here yet, so he might not come.)
Indicative: I insist that Bob is here.(Bob is here, but someone doesn’t believe the speaker.)
Past Tense Verbs: Because English subjunctive verbs and English past tense verbs almost always look the same, many English speakers and writers will use the past tense for all subjunctive cases. That overcorrection results in common sentences like these:
❌Formally Incorrect: If I was rich, I would buy 10 yachts.
✔️Formally Correct: If I were rich, I would buy 10 yachts. (note: irregular subjunctive)
Present Tense Verbs and Infinitives: Because English present tense verbs and infinitive verbs are almost always the same, many English speakers and writers assume that the subjunctive verb is just a present tense verb and don’t realize they need the infinitive form. This mistake is most common when the subject is he, she, it, or a third-person singular (the company, her client, the damage). That’s because these are the only times that the English present tense verbs (except be) differ from their infinitive forms.
❌Formally Incorrect: It’s important that he arrives on time.
✔️Formally Correct: It’s important that he arrive on time.
Understanding Conditional Phrasing
Like the subjunctive mood, a conditional sentence also expresses untrue or uncertain information. Conditional statements and subjunctive mood often go together. While all if-then clauses show a cause-and-effect relationship, we use modal verbs (usually will and would, but also can, could, should, must, may, might, and ought to) to show effects of possible future or imaginary past causes. These modal verbs reflect conditional phrases.
When people start learning English as teenagers or adults, their teachers often present four conditional forms to them. This division is more useful to non-native English learners because their native language may break down subjunctives in this way, but these four categories seem less useful to some native English speakers. However, native speakers often mix up the first, second, and third conditional forms, so it’s important to know the difference to use them correctly in formal contexts.
| Conditional |
Purpose |
Explanation |
Example |
| Zero Conditional |
This conditional structure doesn’t use the subjunctive. |
It’s for true concepts in general (and English uses the present tense to show things that happen as a routine or in general). Some English learners benefit from distinguishing this conditional from the first conditional if their native language has different verb forms in these two cases. |
In law, if a contract is breached, legal consequences arise. |
| First Conditional |
This conditional structure describes possibilities in the future. |
The verb after then (written or implied) needs to have a modal verb or be in the future tense. |
If the company meets its sales targets [in the future], it will expand its marketing team [in the future].
If the toddler eats too much cake, she’s going to feel sick. |
| Second Conditional |
This conditional structure describes imaginary (but not possible) situations. |
This conditional structure always has a subjunctive verb in the past tense (or, in the case of the verb be, as were) in the clause with if. The verb after then (written or implied) needs would or could. |
If I liked that team [but I don’t], I would go to their games [but I don’t].
If I had more money [but I don’t], I could see myself traveling more often [but I don’t]. |
| Third Conditional |
This conditional structure describes past things imagined that didn’t happen and can’t happen anymore. |
This conditional structure always has the subjunctive verb had + a past participle of your imaginary action / verb that didn’t happen in the clause with if. The verb after then (written or implied) needs a past-tense modal (modal + have) |
If the marketing campaign had reached a wider audience [but it didn’t], the company could have seen higher sales figures [but they didn’t]. |
Consider a sentence like this:
If I could donate more money, I would definitely help out another charity.
Some readers may be confused by the use of could in the if clause. Note, however, that could is also the past tense of can. So in this case, could is the subjunctive of can, and remember that English shows the subjunctive with the past form in these cases. Sentences with similar meanings all use the subjunctive (as a past tense) after if:
If I had more money to donate, I would definitely help out another charity.
If I were able to donate more money, I would definitely help out another charity.
While conditional phrasing is a powerful tool, it must be used with care. The wrong conditional statement or an incorrect verb form can lead to ambiguity or misunderstanding—a sin in legal writing.
Deep Dive: Exploring Conditional vs. Subjunctive Examples
Let’s explore the difference in intent or meaning for conditional phrasing and subjunctive mood.
Examples of Zero Conditional – Describing True Concepts and Routine Events
| Conditional or Subjunctive |
Example Sentence |
Explanation |
| Conditional (Zero Conditional) |
If you sign a contract, you are legally bound to its terms. |
This is a general truth stating the consequence of signing a contract (all facts; no subjunctive). |
| Subjunctive |
It’s important that he sign the contract to be legally bound to its terms. |
This statement expresses the importance for the action to take place (he hasn’t yet signed the contract and therefore isn’t yet legally bound to the terms). |
| Conditional (Zero Conditional) |
If the interest rates rise, the cost of borrowing increases. |
This is a general truth stating the consequence of rising interest rates (just facts; no subjunctive). |
| Subjunctive |
The bank recommends that the borrower lock in their interest rate now in case it rises. |
This statement expresses a recommendation for the borrower (but the borrower has not yet locked in their interest rate and may not do so; hence the subjunctive). |
| Conditional (Zero Conditional) |
If you violate company policy, you face termination. |
This is a general truth stating the consequence of violating company policy (no subjunctive). |
| Subjunctive |
It’s important that he not violate company policy to avoid termination. |
This is an expressed importance for not violating the company policy (he hasn’t necessarily decided whether he is going to violate company policy; the speaker doesn’t know what will happen in the future). |
Examples of First Conditional – Describing Future Possibilities
| Conditional or Subjunctive |
Example Sentence |
Explanation |
| Conditional (First Conditional) |
If the defendant does not plead guilty, the case will go to trial. |
This is a possible future scenario; the case going to trial depends on the defendant not pleading guilty (the defendant hasn’t yet pleaded guilty, and the case therefore hasn’t gone to trial and won’t necessarily go to trial). |
| Subjunctive |
The attorney demanded that the defendant not plead guilty. |
This is an expressed demand from the attorney (the defendant didn’t necessarily plead guilty; though this is in the past, at this time, we don’t know whether the defendant pleaded guilty). |
| Conditional (First Conditional) |
If we win the bid, we will start the construction project next year. |
This is a possible future scenario where winning the bid leads to starting the project (they haven’t yet won the bid and therefore haven’t yet started the project). |
| Subjunctive |
It’s crucial that we win the bid to start the construction project next year. |
This expresses a necessity for winning the bid (they haven’t yet won the bid and therefore haven’t yet started the project). |
| Conditional (First Conditional) |
If you submit the report by Friday, you will receive feedback by next week. |
This is a possible future scenario where submitting the report by Friday leads to receiving feedback (but you haven’t yet submitted the report, so you haven’t yet received feedback; you may not submit the report). |
| Subjunctive |
It is crucial that the report be submitted by Friday to receive feedback by next week. |
This expresses a necessity for the report to be submitted by a certain time (but the person submitting the report may not do it). |
Examples of Second Conditional – Describing Imaginary (But Not Possible) Situations
| Conditional or Subjunctive |
Example Sentence |
Explanation |
| Conditional (Second Conditional) |
If our team were larger, we could handle more projects. |
This is a hypothetical scenario where a larger team size would allow for handling more projects (but as of now, the team is not as large as necessary to handle more projects; the team is currently accepting their limit in terms of projects). |
| Subjunctive |
It is necessary that our team be larger to handle more projects. |
This expresses a need for the team to be larger (but as of now, the team is not as large as necessary to handle more projects; the team is currently accepting their limit in terms of projects). |
| Conditional (Second Conditional) |
If I were the CEO, I would invest more in employee training. |
This is a hypothetical scenario where the speaker would invest more if they were the CEO (but the speaker is not the CEO and therefore doesn’t invest in training). |
| Subjunctive |
If I were the CEO, I would require that more money be invested in employee training. |
This expresses what the speaker would do in a hypothetical situation, incorporating the subjunctive mood (but the speaker is not the CEO and therefore doesn’t require anything; separately, the speaker could require more money to be invested, but it wouldn’t necessarily be invested; the subjunctive suggests that the CEO doesn’t make the final decision about investing). |
| Conditional (Second Conditional) |
If the company were more profitable, we could expand into new markets. |
This is a hypothetical scenario, in which profitability would allow expansion (but the company currently isn’t more profitable and it hasn’t yet expanded into new markets). |
| Subjunctive |
It’s crucial that the company be more profitable for us to expand into new markets. |
This is an expressed necessity for profitability in order to expand (but the company currently isn’t more profitable and it hasn’t yet expanded into new markets). |
| Conditional (Second Conditional) |
If the government were to fund the project, we could start next month. |
This is a hypothetical scenario where government funding would allow for an early start (but as of now, the government has not funded the project). |
| Subjunctive |
It’s essential that the government fund the project for us to start next month. |
This expresses a necessity for government funding to start the project (but as of now, the government has not funded the project). |
Examples of Third Conditional – Describing Past Things Imagined that Didn’t Happen and Can’t Happen
| Conditional or Subjunctive |
Example Sentence |
Explanation |
| Conditional (Third Conditional) |
If we had followed the marketing plan, we would have increased our customer base. |
This is a contrary-to-fact past scenario where following the plan would have increased the customer base (but they didn’t follow the marketing plan and therefore didn’t increase their customer base). |
| Subjunctive |
I wish we had followed the marketing plan to increase our customer base. |
This statement expresses regret or a wish about a past event (they didn’t follow the marketing plan, so they didn’t increase their customer base). |
| Conditional (Third Conditional) |
If the business had invested in digital marketing, they would have reached more customers. |
This is a contrary-to-fact past scenario where investment in digital marketing would have increased customer reach (but the business didn’t invest in digital marketing, so they didn’t reach more customers). |
| Subjunctive |
The CEO wishes the business had invested in digital marketing to reach more customers. |
This statement expresses regret or a wish about a past event (the business didn’t invest in digital marketing and therefore didn’t reach more customers). |
| Conditional (Third Conditional) |
If we had launched the product earlier, we would have captured more market share. |
This is a contrary-to-fact past scenario where launching the product earlier would have resulted in more market share (but they didn’t launch the product earlier and therefore did not capture more market share). |
| Subjunctive |
The product manager wishes we had launched the product earlier to capture more market share. |
This statement expresses regret or a wish about a past event (but they didn’t launch the product earlier and therefore did not capture more market share). |
| Conditional (Third Conditional) |
If the campaign had targeted a younger demographic, it would have been more successful. |
This is a contrary-to-fact past scenario where targeting a younger demographic would have led to more success (but the campaign did not target a younger demographic so it was not as successful as expected). |
| Subjunctive |
The marketing director wishes the campaign had targeted a younger demographic to be more successful. |
This statement expresses regret or a wish about a past event (but the campaign did not target a younger demographic so it was not as successful as expected). |
How to Test Your Conditional Logic
Test yourself by manually writing or saying the implied information to make sure both halves of the if-then clause have logical implied information.
Test Applied to First Conditional – Describing Future Possibilities
| If you go with me |
[in the future], |
then I won’t get bored |
[in the future]. |
| cause – stated info |
cause – implied info |
effect – stated info |
effect – implied info |
Test Applied to Second Conditional – Describing Imaginary (But Not Possible) Situations
| If you went with me |
[but you aren’t going], |
I wouldn’t risk getting bored |
[but I am risking getting bored]. |
| cause – stated info |
cause – implied info |
effect – stated info |
effect – implied info |
| If I had the day off |
[but I don’t], |
then I could go with you |
[but I can’t]. |
| cause – stated info |
cause – implied info |
effect – stated info |
effect – implied info |
Test Applied to Third Conditional – Describing Past Things Imagined that Didn’t Happen and Can’t Happen
| If you had gone with me |
[but you didn’t], |
then I wouldn’t have gotten bored |
[but I did]. |
| cause – stated info |
cause – implied info |
effect – stated info |
effect – implied info |
Beware of Treating Exceptions as the Rule
There are a few exceptions to verb conjugation rules with some static (non-action) verbs, which are verbs that are true in every tense. The most frequent exceptions are with the verb like and be:
⚠️ Exception (Like): If I liked pizza, I would have chosen the pizzeria for my birthday party.
⚠️ Exception (Be): If the client had complied, we wouldn’t be in this situation.
But sometimes, English speakers make mistakes by applying this logic to all static (non-action) verbs.
❌Formally Incorrect: If I wanted your opinion, I would have asked for it.
✔️Formally Correct: If I had wanted your opinion [in the past], I would have asked for it [in the past].
❌ Formally Incorrect: If he seemed uninterested, I wouldn’t have invited him to the party.
✔️ Formally Correct: If he had seemed uninterested, I wouldn’t have invited him to the party.
The Costs and Consequences of Sloppy Legal Writing
From misinterpretation of intent to legal consequences and loss of credibility, the price can be high, including:
- Misinterpretation of Intent or Obligation: The subjunctive mood often expresses a command, requirement, or a hypothetical scenario. Mistakenly using the indicative mood, which indicates statements of fact, can change the meaning of a sentence and might lead to confusion about the degree of obligation or the reality of a situation.
- Ambiguity: The conditional is often used to express consequences or hypothetical scenarios. If used incorrectly, it could create ambiguity. For example, the wrong conditional form might make it unclear whether a condition applies in the past, present, or future, or whether it is a realistic or hypothetical scenario.
- Legal Consequences: In contracts and legal documents, every word matters. An incorrectly used subjunctive or conditional could change the obligations of parties, the interpretation of a clause, or the enforceability of a provision. This could lead to disputes or litigation.
- Loss of Credibility: Legal professionals, including judges, lawyers, and clients, expect precision and mastery of language in legal writing. Consistently making grammatical mistakes or misusing the subjunctive or conditionals can undermine a writer’s credibility and may create doubts about their professionalism and attention to detail.
- Inefficiency: If a document is unclear due to incorrect usage of the subjunctive or conditional, it may need to be revised or clarified. This can lead to extra work and delays.
Rewriting Subjunctive Sentences to Remove Passive Voice: Examples
If you’ve had a writing coach who was overly strict about passive voice, some subjunctive sentences may bother you. Subjunctive mood often appears with passive voice. Though correct, this pairing can be wordy or vague. Consider rewriting the sentence as a direct command. WordRake can help make these revisions in one click.
| Passive or Direct |
Example |
| Passive Subjunctive |
It is required that the form be signed by the applicant. |
| Direct Command |
The applicant must sign the form. |
| Edited with WordRake |
It is required that The form must be signed by the applicant. |
| Passive Subjunctive |
It is required that the data be analyzed by the research team. |
| Direct Command |
The research team must analyze the data. |
| Edited with WordRake |
It is required that The data must be analyzed by the research team. |
| Passive Subjunctive |
It is recommended that the proposal be submitted by Friday. |
| Direct Command |
Please submit the proposal by Friday. |
| Edited with WordRake |
It is recommended that The proposal should be submitted by Friday. |
| Passive Subjunctive |
It is crucial that the funds be allocated by the committee. |
| Direct Command |
The committee must allocate the funds. |
| Edited with WordRake |
It is crucial that The funds must be allocated given by the committee. |
| Passive Subjunctive |
It is essential that the report be completed by the end of the month. |
| Direct Command |
You must complete the report by the end of the month. |
| Edited with WordRake |
It is essential that The report must be completed by the end of the month. |
Conclusion
The subjunctive mood and conditional phrasing aren’t just grammar points; they’re important tools for precision in legal writing. By understanding when and how to use the subjunctive mood and conditional phrasing correctly, legal writers can prevent misinterpretation, reduce ambiguity, maintain credibility, increase efficiency, and avoid potential legal consequences.
Precise legal writing isn’t easy, but it’s achievable. With practice, attention to detail, and a solid understanding of tools like the subjunctive mood and conditional phrasing, you can write with greater clarity and confidence. So keep learning, keep practicing, and keep striving for excellence in your writing. To edit for clarity, brevity, and simplicity, try WordRake. It's free for 7 days!
About the Authors
Ivy B. Grey is the Chief Strategy & Growth Officer for WordRake. Before joining the team, she practiced bankruptcy law for ten years. In 2020, Ivy was recognized as an Influential Woman in Legal Tech by ILTA. She has also been recognized as a Fastcase 50 Honoree and included in the Women of Legal Tech list by the ABA Legal Technology Resource Center. Follow Ivy on Twitter @IvyBGrey or connect with her on LinkedIn.
Danielle Cosimo is a Language Usage Analyst for WordRake. Before joining the team, she was a translator and editor for non-native English speakers applying to degree programs in the United States and the UK. Danielle is formally trained in linguistics and has a certificate in computer programming. She is fluent in English, Portuguese, and Spanish. She applies her interdisciplinary knowledge to create WordRake’s editing algorithms.
