Rigorous lawyers should be sticklers for detail. After all, they’re supposed to be professional writers. Yet lawyers often relegate the important task of catching misspelled words to their electronic spell-checker.
Worse, some lawyers use words they’re unsure about given the context of the sentence, and let their grammar-checker render the final usage verdict.
Not only can these abdications of professional responsibility result in malpractice claims and needless litigation, they also lead to comical usage bungles, some of which end up as examples in legal-writing texts.
Garner on Language and Writing contains numerous examples of usage mistakes common to legal writing, many of which a spell- or grammar-checker will fail to correct. I’ll examine nine of them below, along with a personal favorite.
- Adverse — averse. Both adjectives take the preposition to; averse can also take the preposition from. To be adverse to something means “to be turned in opposition against it.” Adverse, when referring to circumstances, also means “potentially afflictive or calamitous.” To be averse to something means “to have feelings against” it. As Garner notes, the Brooklyn Journal of International Law mixed up these words when referring to public-opinion studies that found most people are adverse to receiving unsolicited e-mail.
- Bequest — bequeath — behest. Bequest is a noun that means “the act of bequeathing” or, alternatively, “personal property (usu. other than money) disposed of in a will.” The verb bequeath means to give something (usu. an estate or effect) to a person by a will. Garner points out that “[u]sing bequeath as a fancy equivalent of give or present is an ignorant pretension.” The noun behest has nothing to do with wills and means “a command [or] a strong urging.” Lawyers can easily misuse bequest for behest, as in “Sally filed the brief at her boss’s bequest.”
- Compliment — complement. This homophonic bungle—my personal favorite—infects all writing. As a verb compliment means “to praise.” As a verb complement means “to supplement appropriately or adequately.” A partner can compliment an associate if he complements a brief with secondary legal authority.
- Corollary — correlation. As a noun corollary means “a subsidiary proposition inferred from a main proposition—or, by extension, a practical consequence or result.” The noun correlation means “a proportional correspondence between things.” As Garner notes, legal writers tend to misuse corollary for correlation, although correlation is called for more frequently in legal writing.
- Flaunt — flout. The verb flaunt means “to show off or parade (something) in an ostentatious manner.” The verb flout means “to contravene or disregard; to treat with contempt.” A lawyer doesn’t flaunt a legal rule (unless he’s promoting it); he flouts the rule. According to Oxford Dictionaries, more than 5% of the flaunts in the public domain should be flouts. And as Theodore Bernstein coaches, “it will help those who are confused by these two words to keep in mind that one who is defiant of authority is, to mint a word, a floutlaw.”
- Inhere — inure. The verb inhere takes the preposition in—not within—and means “to exist as a basic quality in.” The verb inure also needs the preposition to, and in most contexts means “to become accustomed [or] to take effect to (someone’s) advantage.” Confusing inhere for inure is a malapropism: The Ponzi scheme inhered [read inured] to the benefit of defendant and his business partners.
- Inimicable — inimical. Like irregardless, inimicable isn’t a word, although Stanford linguistics professor Arnold Zwicky contends that its proscription is a relatively recent development. Lawyers confuse inimicable with the adjective inimical, which means “hostile, injurious, adverse.” Inimical takes the prepositions to or toward. So you should be inimical to using inimicable in your legal writing.
- Mitigate — militate. The verb mitigate means “to make less severe or intense.” The verb militate means “to exert a strong influence.” Mitigate against is plainly wrong, though Faulkner was fond of it. Garner notes that militate can take for or in favor of, as well as against. So it’s correct to write: Defendant’s clean [extensive] criminal record militates in favor of [against] a reduced prison sentence.
- Perpetuate — perpetrate. The verb perpetuate means “to make last indefinitely; prolong.” The verb perpetrate means “to commit or carry out.” So a criminal doesn’t perpetuate a crime, he perpetrates it. But a litigant could perpetrate a fraud by lying under oath, and then perpetuate the fraud by continuing to lie. The Boston Globe confused these words in a 2008 headline: Perpetrating the autism myth.
- Subordination — subornation. The noun subordination means “the act of placing in a lower rank or position.” The noun subornation means “the act of inducing or procuring a person to commit an evil action, by bribery, corruption, or the like.” The phrase subordination of perjury, then, is another malapropism, though it inexplicably found its way into the West Virginia Criminal Code: “Penalties for perjury, subordination of perjury, and false swearing.”