Law-related “eggcorns” (malaprops)


Legal Eggcorns

An “eggcorn” is a word or phrase that results from a mishearing or misinterpretation of another and often appears as a misspelling of the original. The term itself derived from a mishearing of the word “acorn.” Another term for these errors is malaprop. Some examples you might be familiar with are could of for could’ve, last stitch effort for last ditch effort, and for all intensive purposes for for all intents and purposes.

The following law-related eggcorns are real, and I have the citations to prove it. Some are certainly genuine eggcorns, and others are probably just typos, but they’re all entertaining. All but one are from judicial opinions.

illicit a response (elicit a response)
“The flavor of plaintiff’s counsel’s conduct throughout the trial is perhaps best illustrated by the following episode, in which plaintiff’s counsel was supposedly trying to illicit a response from plaintiff which would describe the size of the warehouse where the accident took place.”

  • Ballarini v. Clark Equip. Co., 841 F. Supp. 662, 667 (E.D. Pa. 1993)

mute point (moot point)
“For forensic patients, the discharge planning process and treatment did not include an initial, meaningful discussion of housing. Aftercare was a mute point.”

  • Bates v. Duby, 2003 WL 21921169, at *124 (Me. Super. May 23, 2003)

flush out (flesh out)
“It is not the role of this Court to construct arguments for the parties, or to flush out incomplete arguments.”

  • Estate of Hurst ex rel. Cherry v. Jones, 750 S.E.2d 14, 25 (N.C. Ct. App. 2013)

quickclaim deed (quitclaim deed)
“In support of her assertion, she has directed the court’s attention to a quickclaim deed executed by Burns McFarland on March 27, 2003.”

  • McFarland v. McFarland, 2009 WL 692298, at *5 n.1 (N.D. Iowa Mar. 16, 2009)

preemptory challenge (peremptory challenge)
“In his application for habeas relief, Jones argued that at trial the prosecution used its preemptory challenges to strike black persons from the jury in violation of his right to equal protection under the Fourteenth Amendment to the United States Constitution.”

  • Jones v. Ryan, 987 F.2d 960, 962 (3d Cir. 1993)

collaborating evidence (corroborating evidence)
“The IJ noted that Liu had failed to provide any additional collaborating evidence.”

  • Bi Gan Liu v. U.S. Atty. Gen., 305 F. App’x 602, 605 (11th Cir. 2008)

tenants of the Constitution (tenets of the Constitution)
“To allow the Respondent the ability to flippantly hide behind a state statute in order to avoid compliance with one of the tenants of our Constitution that proper notice of a property interest must be given, is contrary to that authority and should be corrected.”

  • Cune v. Bryan Indep. Sch. Dist., 2010 WL 8802133, *4 (Tex. 2010) (Petition for Discretionary Review—written by a lawyer; not pro se)

pass mustard (pass muster)
“While it may not pass mustard under the statutory standard for § 1325, most people in the community would not consider such an expense—if not manipulated—to be abusive.

  • In re Vansickel, 309 B.R. 189, 209 (Bankr. E.D. Va. 2004)

Tips for Concision: 6. Deflate compound prepositions

Deflate compound prepositions.

Compound prepositions are prepositions on steroids. Instead of being concise and simple, they’re puffed up, like for the purpose of, by means of, and with reference to.

In Plain English for Lawyers, Richard Wydick says they “suck the vital juices from your writing.” He offers some of his least favorites: by virtue of, in relation to, and with a view toward. And in The Grammatical Lawyer, Morton Freeman calls them “drawn-out prepositional phrases” (an apt name). He particularly dislikes during the course of, in terms of, and on the part of.

They’re almost always unnecessary, so deflate them. For example, the compound prepositions in the next sentence can be easily shortened to one word:

  • The attorney spoke to Chris Santiago with regard to (about) the cease-and-desist letter in order to (to) learn its content.

Put them on your editing checklist.


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Hyphens, ellipses, and word counts


According to reliable style manuals (I’ve cited four at the bottom of this post), writers should use the en dash, not the hyphen, for number spans.

  • With a hyphen (wrong): 343-44
  • With an en dash (right): 343–44

I don’t know if you can see the difference, but the en dash, the correct mark, is longer than the hyphen. Although I agree with the rule, I’ve recently learned something that could affect your choice of horizontal mark.

  • With a hyphen, Microsoft Word counts this as one word: 343-44
  • With an en dash, it counts it as two: 343–44

You get a 50% savings with the hyphen. In a lengthy brief subject to a word count, you could save some words by using the hyphen.

But wait. There’s more.

Do you know the difference between the ellipsis symbol (…) and the Bluebook ellipsis (. . .), which is just three periods with spaces? For example:

  • Bluebook: The court . . . concluded
  • Ellipsis symbol: The court … concluded

In Typography for Lawyers (cited below), Matthew Butterick recommends the ellipsis symbol. You probably never gave it much thought, but check the word counts:

  • With periods and spaces, Word counts this as six words: The court . . . concluded
  • With the ellipsis symbol, it counts it as four: The court … concluded

You save two words every time you use the symbol instead of periods and spaces.

A former student alerted me to these two strange word-count anomalies and said, “On my last brief to the Seventh Circuit, these two tips cut off close to 200 words, and I ended up 119 words under the limit.”


  • Bryan A. Garner, The Redbook: A Manual on Legal Style § 8.13 (3d ed. 2013).
  • Joan Ames Magat, The Lawyer’s Editing Manual 43 (2008)
  • Chicago Manual of Style § 6.78 (16th ed. 2010)
  • Matthew Butterick, Typography for Lawyers 49, 53-54 (2010)

Headings, part 2: Consistency, Outlining, and Numbering

Nearly every legal document can benefit from clear, consistent headings. Here in part 2, I offer recommendations for making headings consistent, commend some traditional outlining rules, and suggest a simple numbering system. These guidelines should help you create readable, skim-able documents.

Your headings should form an outline, and in outlines, entries at the same level should be structured and formatted the same way. That may seem obvious, but not all legal writers do it, as I recently learnedwhen reading motions and briefs in preparation for a CLE seminar.

For example, suppose an Argument has the following heading outline:



In that outline, 1 and 2 are at the same level, so they should be structured and formatted the same way. Likewise, both a and b pairs are at the same level, so all four should be structured and formatted the same way.

Specifically, if 1 is a topic heading in boldface initial caps, then 2 should be a topic heading in boldface initial caps. If 1a and 1b are full-sentence, explanatory headings in italics, then 2a and 2b should also be full-sentence explanatory headings in italics. For example—

1. Trial Court Errors
a. The trial court erroneously instructed that police officers may pretend to be electors.
b. The trial court failed to have the court reporter record statements made on audio recordings.

2. Sufficiency of the Evidence
a. Sufficiency of the evidence on attempted election bribery.
b. Sufficiency of the evidence on conspiracy to commit election fraud.

The structure of 1a and 1b (full sentences) does not match the structure of 2a and 2b (phrases). We need to revise 2a and 2b into full-sentence, explanatory headings. The format, italics, should match, too.

In creating headings and sub-headings, follow two key outlining rules.

Rule 1: Keep main topics at the same level and keep sub-topics at the same, lower level. So don’t place main headings and sub-headings at a single outline level. For example—

1. Preliminary Statement
2. Argument
3. The Plaintiff Cannot Prove Consequential Damages.
4. The Plaintiff Cannot Prove Expectation Damages.
5. Conclusion

1. Preliminary Statement
2. Argument
a. The plaintiff cannot prove consequential damages.
b. The plaintiff cannot prove expectation damages.
3. Conclusion

Rule 2: Don’t create a sub-heading unless you have two. If you have only one sub-heading, incorporate it into the main heading. But if your argument or discussion contains only one major issue, it’s okay to have a single major heading for that issue. For example—

a. The suit is barred by laches.
(1) The suit was brought twenty-five years after the original certificate was issued.

a. The suit is barred by laches because it was brought twenty-five years after the original certificate was issued.

The rules for traditional outlining call for outlines to begin with Roman numerals (I, II, III) and to proceed through letters (A, B, C, and a, b, c) and Arabic numerals (1, 2, 3). If you supplement those levels with Romanettes (i, ii, iii), and parentheses ((a), (b), (c) and (1), (2), (3)), you can create an outline with 7 levels: I. A. 1. a. (1) (a) (i). Two suggestions

First, don’t write a document (motion, brief, or even a contract) that needs seven levels of headings. Find a way to condense and consolidate; strive to limit yourself to four or even three levels. You’ll be less likely to lose your reader—and yourself.

Second, if you know any level of your outline will go beyond six or seven items, consider using Arabic instead of Roman numerals or romanettes for that level. Roman numerals get harder to decipher the higher they go. I once read a lengthy contract divided into 60 major sections, each designated with a Roman numeral. It was difficult to refer to any particular article because it took too long (or became impossible) to figure out. What’s XLIV?

In my own outlines, I use Arabic numerals and the alphabet, and I still have four levels available: 1. A. (1) (a)

It’s 44 by the way.


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The wisdom of a fortune cookie–UPDATE


UPDATE: The advice on the fortune is from William Zinsser, a noted writing expert and author of a really good book called On Writing Well, which I recommend. I’ve also learned that many others have received this fortune as far back as 2009. Wow.

After a lovely meal of Spicy Basil Fried Rice, I opened my fortune cookie and found this:


What a surprise. It’s the most unusual but most appropriate fortune I’ve ever seen.