Communicating with accuracy and precision is important in legal writing (and legal speaking). Using the right word for your intended meaning aids clarity and enhances credibility. So with the goals of clarity and credibility in mind, I offer a list of confused and misused words, along with explanations.
Some of these explanations may surprise you, and I’ve had a few lawyers disagree with me about some of them. But you don’t have to take my word for it (pun intended). If you disagree with my explanation, do this: look it up on the Web and look it up in a book. If I’m wrong, let me know.
beg the question
The phrase beg the question applies to logic and arguments. One who begs the question assumes as true the point that must be proved or uses as evidence the statement itself: “The reason it is in high demand is that everyone wants it.” That sentence begs the question. But begs the question is now widely used to mean raises the question or [it] makes one wonder. “The witness would not look at the defendant, and that begs the question—was the witness lying?” No, it raises the question.
deep-seated / deep-seeded
A belief or feeling is deep-seated because it has been seated (fit into place) deep within a person. Despite the way it sounds when spoken, and despite the logic of it, the metaphor here is not about planting seeds, so deep-seeded is incorrect.
defuse / diffuse
To diffuse is to spread widely or disperse, and the word is most often used as an adjective: something that is diffuse is spread out, not concentrated. If what you mean is to reduce tension or to lessen danger, you want defuse—literally to remove the fuse. “The CEO tried to defuse criticism of the merger.”
disinterested / uninterested
The distinction between disinterested (unbiased, impartial—literally without an interest in a decision or outcome) and uninterested (not interested, bored) is being lost in ordinary spoken English. But the distinction is worth preserving, especially in law, where we all want our judges to be disinterested but not uninterested.
everyday / every day
If you mean every single day, you want two words: every day. If you mean ordinary and typical, you want one word: everyday. “Almost every day I see writers make the everyday mistake of using everyday to mean every day.”
flesh out / flush out
If an argument is undeveloped or in outline form, you might say it is “skeletal” or “bare bones.” If you want to develop the argument or add details to the outline, you want to flesh out the argument. You want to add meat to what otherwise would be a skeleton or bare bones. That’s where the phrase flesh out comes from. “Your argument lacks detail; you need to flesh it out.” But you don’t want to flush out your argument, which would mean to drive it out or cause it to fly up and away. The proper use of flush out is often seen in discussions of game birds: “The hunters wanted to flush out the quail.”
fortuitous / fortunate
Fortuitous means accidental or by chance. “Seeing Professor Gordon at the airport was entirely fortuitous.” But fortuitous is more and more often being used to mean lucky or propitious. That’s unfortunate. The proper word for lucky is fortunate.
toe the line / tow the line
The correct phrase here is toe the line and is derived from the idea of people lining up—as for a military inspection—and placing their toes on a line. So one who does what is expected and follows the rules is said to toe the line. A similar expression with a similar meaning is toe the mark. The phrase toe the line is more often spoken than written, so it’s easy to see why the confusion arose, but the concept has nothing to do with pulling or towing a line.