Oops. Mistakes the spellchecker won’t catch.

We all know better than to rely only on a spellchecker, but in case you need more motivation, here are some humorous word mistakes from real documents prepared by real lawyers. (I’ve removed identifying details.)

The staff from Surgical Services, Medical Services, and Pharmacy, as well as all the patients and visitors, observed the bazaar behavior.

  • The word should be bizarre.

This action is nothing more than another viscous attack by Plaintiff against its adversaries’ attorneys.

  • Viscous means thick and sticky in consistency. The writer should use vicious (or maybe should attack the merits instead of describing the plaintiff’s motives).

For all intensive purposes, the Defendant did nothing more than recite the Rules of Evidence at length.

  • The proper phrase here is intents and purposes.

When Chief Kearl was appraised of the situation, he ordered the evacuation, and notice was posted at the property.

  • The right word here is apprised.

Scholars may criticize the Court for failing to apply strict scrutiny in some cases, such as those suggesting unconscious racism, but they do not hone in on the cost of deploying it.

  • The long-standing and preferred phrase here is home in on.*

*The original phrase (home in) comes from the following meaning of home: “to return home” (like a homing pigeon) or to “be guided toward a destination or target.”1 It’s easy to see why hone, meaning “to sharpen”2 seems to make sense, but two prominent word-usage experts insist the phrase should be home in:

Steven Pinker, The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century 274 (2014).

Bryan A. Garner, Garner’s Dictionary of Legal Usage 412 (3d ed. 2011).


1. The Oxford Dictionary and Thesaurus: American Edition 701 (1996).

2. Id. at 703.

Tips for Concision 10: Use “pro-verbs.” Or elide verbs.


Here are two related concision techniques most of us are already using, even if we didn’t know what the techniques were called.

“Pro-verb” is a term coined by the linguist Otto Jesperson to describe verbs that are used in place of other verbs just as pronouns are used in place of other nouns. In English, the most common pro-verbs are do and its forms (did, done, doing) and do so and its forms (did so, done so, doing so). In the next examples, the pro-verb did replaces operated:

1a. The Claimant operated the same machinery that other employees operated.
1b. The Claimant operated the same machinery that other employees did.

Example 1b doesn’t save words (though it’s three syllables shorter), but in the next examples, we save words because do so replaces order a new trial.

2a. The court has the authority to order a new trial, but it should not order a new trial.
2b. The court has the authority to order a new trial, but it should not do so.

Using the pro-verb cuts the sentence from 18 words to 16 and avoids repetition.

Legal writers can also elide verbs—omit them—where they’re understood. Thus, we can shorten example 2b even further by removing words from the second verb phrase: should not do so becomes should not:

2c. The court has the authority to order a new trial, but it should not.

Now we’ve cut the sentence from 18 words to 14. Concision.

Tips for Concision 9: Make independent clauses participial phrases

You can improve concision by turning independent clauses into participial phrases.

First, let’s define terms. An independent clause has a subject and a verb and could be a complete sentence by itself. A participial phrase begins with a participle (an –ing verb) and modifies something; participial phrases typically serve as adjectives. Because it’s a phrase, it doesn’t have a subject.

Turning independent clauses into participial phrases means making two sentences into one, but it’s a particular way of doing it. Suppose we have these two sentences:

  • Nunez and Hill had worked at the store together for four years. They had formed a strong friendship.

You can be more concise by converting the second sentence into a participial phrase. Then you can embed it inside the first sentence, setting it off with commas, like this:

  • Nunez and Hill, having worked at the store together for four years, had formed a strong friendship.

Or use it to begin the sentence, like this:

  • Having worked at the store together for four years, Nunez and Hill had formed a strong friendship.

The original is 18 words, and the revisions are both 17. Granted that one word is a modest gain in concision, that is often how concision works: rather than one big edit that saves many words, you make many small edits that add up.

More getting the words right

Could you do better than these lawyers did? Here are four more confused and misused words, along with explanations. For each, the incorrect example is from a real legal document (names have been changed).

just deserts / just desserts
Putting the defendant to death to avenge two killings that he did not commit and had no intention of committing does not contribute to the retributive end of ensuring that the criminal gets his just desserts.

This error might be simply a spelling mistake or a typographical error, but this incorrect usage is fairly common. The correct phrase for getting what you rightly deserve is just deserts with one s and has nothing to do with a post-meal treat. The word desert here is a little-used noun form of deserve.

prescribe / proscribe
Of the total offering proceeds deposited into the Escrow Account, 10% may be released to the Company prior to an offering in which investors reconfirm their investment in accordance with procedures proscribed by Rule 419.

The right word here is the past tense of prescribe, which means to require or authoritatively direct. Proscribe means to prohibit. A procedure could be proscribed by rule or prescribed by rule, but the meanings are distinct.

step foot / set foot
Most jurors will have seen PowerPoint presentations before they step foot in the courtroom.

The proper phrase here is set foot. Granted, the phrase step foot has some common-sense appeal: we takes steps with our feet. But do you step your feet? No. You take steps, and what you’re doing when you take steps is picking your foot up and setting your foot down or in.
That’s my appeal to logic. Here’s my appeal to authority—one of several I found. “The traditional expression is not step foot but set foot.” Paul Brians, Common Errors in English Usage 218 (2d ed. 2009).

tack / tact
The plaintiff believes Porterfield took the wrong tact by refusing to settle.

The correct word here is tack. Tact means sensitivity or skill in dealing with delicate situations. The correct word, tack, means a course or a change in course and is a sailing term, used here metaphorically.

Getting the words right

Legal writing requires precision, and precision requires the right word. Correct word use or “usage,” aids clarity and enhances credibility. With those goals in mind, I offer these confused and misused words, along with explanations. For each, I present an example of incorrect usage from a real legal document (names have been changed).

compliment / complement
The firm considers this team approach a benefit to the client as Jacobson and Gonzalez compliment each other, constantly reviewing and discussing issues.

Although it’s possible that Jacobson and Gonzalez praise (compliment) each other, the word here should be complement, meaning to complete or to go together well.

discreet / discrete
This mandamus proceeding presents a chance for the court to hold that a party cannot avoid the effect of Rule 292 by seeking separate trials of discreet issues that constitute a single cause of action.

Discreet means tactful and circumspect. The correct word here is discrete, meaning individually distinct. These two words can be difficult to keep straight, so to help me remember them, I use this memory aid: In discrete, the two e’s are separated by the t. They’re distinct.

historic / historical
These costs will be subject to reconciliation as reconcilable fuel costs on an historic basis.

The word historic means famous and significant: Passage of the Civil Rights Act was a historic event. The proper word here is historical, which means relating to history or occurring in the past.

But what’s the proper article? Should we use an historical or a historical? The best current guidance is that historical and other words beginning with h, like hereditary and humble, take the article an only if you do not aspirate the h. In other words, use an only if you pronounce the words as if there were no h: istorical, ereditary, umble. And the best current guidance on that is to aspirate the h. So write a historical basis, a hereditary trait, a humble person.

More next week.