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I. Writing In The Law Office (cont.)

C. Common Word Usage Problems

The bottom line: If you use a word incorrectly, someone will notice -- especially if you use the word incorrectly in a legal pleading.

Below are just a few of the words which are continuously misused.

Legal writing is abstruse enough already, but it is even more incomprehensible when read by an obtuse lawyer. Both words are very negative.

In legal writing, rarely is either word appropriate.

To take a child as one's own, one adopts the child.

When Myron Lerner tells Mr. Bananaberry to sue Mr. Robinson, he gives him advice, that is, he advises him.

Effect is used as a noun to mean "the result or impression." When used as a verb it means "to bring about or to cause."

The "[or more]" of the last sentence was debated by traditionalists, who believe that alternatives should only apply to two, not more, choices. (See the discussion about between/among .) The Third Edition of Fowler's Modern English Usage announces the surrender of the traditionalists on that issue.

Alternative does not mean "new and improved."

It is obvious this problem has arisen because the interrogatory employed an imprecise term, "and/or," when precision was called for. The phrase has been so soundly criticized as to have been driven almost entirely from current usage. At best it has been labeled "equivocal," "obscure" and "meaningless," at worst "slovenly," "improper" and "a linguistic abomination." (See cases cited in Words and Phrases, Perm. Ed., pages 640 to 647). It has no place in modern practice, least of all in discovery interrogatories. A list of condemnors includes a number of our own cases. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976); Guerin v. State, 209 Ark. 1082, 193 S.W.2d 997 (1946).

(This word may come up on your spell check as "apprize," which is not incorrect but not recognized by most attorneys as the correct spelling.

Both words are used as verbs.

Both are adjectives.

When more than two persons or things are involved you should use the word among.

The only exception to that rule is when you are talking about considering things in pairs as well as in a group. For example:

In that sentence you are saying that you should consider Little Rock and Paris, Little Rock and Beijing, and Paris and Beijing.

Remember that "between" is a preposition. It takes an object, so the following sentence is correct:

Blatant means "conspicuous," but it has a pejorative (negative) tone.

Therefore, only use it to mean "objectionable and conspicuous."

Some people confuse the meanings of bring and take because the Southern dialect treats those words differently than they are treated in standard business English.

When discussing travel plans with someone at your destination, you use that person's point of view. For instance when I am speaking to someone in Massachusetts I will tell him,

When relaying the same information to a person in Mississippi, I will tell him:

A capitol is often located in the state capital.

Capital also means "the money that capitalists invest. Some would restrict the term capitalist to a person who invests capital, not an adherent to the teachings of Adam Smith.

That leaves no convenient term for a poor person who supports the ideology of capitalism.

Although Marxists might suggest that the appropriate term is capitalist dupe, we would suggest that as long as the context makes it clear, capitalist is a convenient term for "a believer in capitalism regardless of his or her net worth."

Some may even feel that the term capitalist to mean "investor" is pejorative.

However, "causal connection" is an important, and often-used, term of art in the law. One could easily make a typographical error which would render the plaintiff's actions meaningless, and the defendant's allegations groundless.

In plain English the word claim has a broader meaning, but in legal usage claim does not mean "to allege, to argue, to declare, or to assert a fact." It certainly is not something done by a court, unless the court asserts right or title to something. A court does not claim that a higher court's decision compels its result.

According to Maggie, "claim" is a valid alternative to using "allege, argue, declare, assert, state, etc." This use somewhat implies that no merit exists in the party's assertions.

After painstaking deliberation, we have decided that we like the word "conclusory," and we are distressed by its omission from the English language. We now proclaim that henceforth "conclusory" is appropriately used in the opinions of this court. Furthermore, its usage is welcomed in briefs submitted for this court's review. Webster's, take heed!

Greenwood v. Wierdsma, 741 P.2d 1079, 1086 n. 3 (Wyo. 1987).

You want a disinterested, but not uninterested, judge. Judges should be disinterested, that is, "not have any personal interest in the outcome of a case." They should not be uninterested, but with the quality of legal writing these days, it is often quite a challenge for them to remain interested.

The opposite of disinterested and uninterested is, unfortunately, interested.

A famous person is eminent. Something getting ready to happen is imminent. Therefore, when a famous person is about to state something profound, you could say:

It is imminent that something profound will emanate from the eminent lawyer.

There's also a word, "immanent" but if you are not a philosopher or a theologian trying to define God, you don't care.

According to Maggie, go ahead and use the word to mean "largeness" or "bigness."

According to Gerry, you cannot use the word enormity. The meaning of the word is in the process of changing. It is one of the battlefields on which the war between traditionalists and modernists is currently being waged.

At one time it meant "outrageous or extreme wickedness." For the last fifty years, however, it has been used to mean "bigness." Traditionalists are disgusted, and sometimes offended, by misuse of the word. Offense is especially likely to result if the word is associated with something belonging to the traditionalist, such as the "enormity" of his or her ego.

Modernists often feign ignorance of the older meaning of the word. Even when they are willing to admit that they are aware of the older meaning, modernists see its use as pretentious at best.

So if you mean bigness say "enormousness." If you mean evil say "wickedness."

It comes from the Latin factus, the past participle of facere, to do. Literally it means "a thing done." It's a first cousin to the word feat, which is defined as "an action, deed, or course of conduct." Oxford English Dictionary, definition of "fact.

If these vague definitions are somehow less than informative, perhaps we should consider what fact is not.

First, facts are true. There is no such thing as a "false fact." Also, referring to "true facts" would be redundant.

Second, facts are not rules of law. Therefore, this sentence is incorrect:

The legal element of "an unwanted touching" is not a fact. It is a rule of law.

In legal matters, an issue is a question to be resolved. You attempt to resolve an issue by applying the law to the facts. This is why the factual/legal distinction is important.

Something must be said about the phrase "the fact that." Undoubtedly it is overused, but equally undoubtedly it is often necessary to convey the meaning you want to convey.

According to Maggie, do not use this phrase. Instead, just state your fact.

Although most people no longer make this distinction, it is always safer to do so. Nobody objects to the proper usage. A few curmudgeons remember the distinction and will expect you to remember it, too.

According to Maggie, I must be a curmudgeon.

Fewer refers to things that can be counted. Less refers to things that can't be counted.

Don't talk about "less people" or "less cars" in legal writing.

You can imply something to someone else:

The use of the word "claim" in place of "allege" implies that the Plaintiff is a liar.

To infer means to perform the mental act of reaching a conclusion:

The Plaintiff can infer that I mean he is liar when I use the word "claim" instead of "allege."

• In the present tense, you say:
  I lay the book on the table.
  
  
• For the past tense, say:
  I laid the book on the table.
  
  
• For the past perfect tense, use:
  I have laid the book on the table.
  
  
• Progressive tense:
  I am laying the book on the table.

I lie on the bed.

I lay on the bed.

I have lain on the bed.

I am lying on the bed.

There is another to lie, which means "to tell a falsehood." That one's easy.

If you're not a scientist or a mathematician, you don't know what it means. If you are a scientist or a mathematician, your audience doesn't know what it means. I would explain this in more detail, but I don't know what it means.

In legalese therefor means "for that thing."

The standard English word therefore means "consequently."

Unique means "something is one of a kind."

Something or someone cannot be the "most unique" or "more unique."

There is a list of words which convey absolute qualities not subject to comparison.

The list includes: