Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, September 12, 2020

Common Word Mix-ups!

8 Common Creative Writing Mistakes | Writing Forward

Even the best legal writers have that one word (or two) they always misuse. Which is it for you? It's probably not the they/they're/their debacle. Most of us have that one down. But for whatever reason, several others pop up all the time in briefs, motions, and other documents. No matter who wrote them. 

The best way I've found to cut down on these is to set aside some time to review your writing and keep track of your common pitfalls—then remind yourself to check for them during your editing stage. It can be as simple as writing down a few of them on a post-it. You can easily start retraining your brain to use the wright words (see what I did there?) with a little bit of effort. 

Here are some mishaps I see all the time from lawyers and law students alike: 

Phrasal verbs trip many folks up. People forget that there's often a different form for words used as a verb instead of a noun or adjective.

Take "setup" and "login." I see these misused all the time. 

When you're using them as a noun or adjective, these are a single word: 

"I love your computer setup." 

"The setup time is great." 

"I need to get my login from IT." 

"Do you have your login information?" 

When you're using these as a verb, they become a phrasal verb and need to separate: 

"I need to set up my computer." 

"I need to log in to the firm's platform first." 

Another doozy: Words that have started to take on new meanings in popular usage but haven't quite transitioned yet for many audiences. 

First, some background. You'll hear grammar police correcting folks for misusing words like utilize: "Don't you know utilize means to use something different from how it was intended?" And look,  I'm not a fan of utilize ("use" is shorter and simpler). But we are probably at the point that using utilize instead of use isn't a grammar mistake. Because utilize has taken on a broader meaning for the vast majority of readers.

And so like all words, it's meaning has evolved. 

The meaning of words is always in flux. Before I was a lawyer and law professor, I studied linguistics. And as cool as language is, for legal writers, its purpose is communication and persuasion. And if your audience understands what you're communicating because a word has firmly taken on a new common meaning, in my view, the choice becomes one of style, not correctness. I will leave the prescriptivism vs. descriptivism debate to others. But I hope we can all agree that as legal writers, we write for function, not theory. 

All that said, if a word hasn't firmly taken on the meaning you intend, tread with care. Because you need to connect with readers and build credibility. And if they judge you for what they perceive as a misused word, you should probably avoid it. 

This is most common with word meanings that haven't yet crossed that threshold into common usage. Here are some examples: 

Adverse means detrimental—not averse. So "I am adverse to that" will trip up plenty of readers, even if millions of people use the word to mean "I dislike it" or "I'm against it." 

Begs the question means to assume what the statement should be proving—it does not mean generally raising a question. 

Bemused means bewildered, not slightly amused. 

Criteria is the plural; criterion the singular.

Dichotomy refers to two alternatively that are mutually exclusive, not just a difference or set of two.  

Enormity means extreme evil. Yup, I misuse this one all the time, too. 

Fortuitous means coincidental not lucky or fortunute. 

Hone means to sharpen not to home in on. This is another I always have to catch myself on. 

Hung means suspended, not hanged (a way of killing). 

Literally means in fact (not the very different figuratively). 

Nonplussed means stunned—not bored. 

Practicable means that something is easy to put into practice or make a practice—just just practical. 

Proscribe means to condemn, not to prescribe

Reticent means shy, not merely reluctant. 

Simplistic means naive or too simple—not just simple. 

Untenable means indefensible and not unbearable.

Many of these flux words are hiding in our writing. And I will leave it to you to decide when you're comfortable departing from the old and embracing a new, common usage. Just know that, if you're on the fence, your readers might be too. So it may be safer to go with the traditional meaning until it's obvious you're in the clear. 

How about some words that have firmly changed their usage and are safe to use now, even for purposes other than they were originally intended? Data and agenda. Both of these started out as plural count nouns. So before, you would need to say: "This datum supports the argument, but many of the other data refute it." These days, it's all data. I've seen countless lawyers, judges, and other legal writers use it both ways. 

Another example that is probably over the acceptable threshold: Verbal. Technically, this word means to put into language form, not oral. But we've probably all accepted the word as meaning oral or spoken by now.

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