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)

George Orwell once wrote, “Never use a metaphor, simile, or other figure of speech you are used to seeing in print.” It’s from an essay called “Politics and the English Language,” a wonderful piece he wrote in 1946 and that’s worth reading today. But what did he mean?

Perhaps it’s as simple as “Be original” or as we might say today, “Be fresh.” But I’ve always taken it to mean “Avoid clichés.”

Avoid them like the plague.

The advice isn’t original with me; it’s everywhere. Of course, we can say that about clichés: They’re everywhere, and that’s the key reason to avoid them. They’re over-used, hackneyed, and stale. For example, in her excellent book, Woe is I, the writing expert Patricia O’Conner says, “If a phrase sounds expressive and lively and nothing else will do, fine. If it sounds flat, be merciless.” O’Conner at 168.

Notice she said be merciless and didn’t say bite the bullet. It’s on her list of 88 clichés to avoid, including

can of worms

fall through the cracks

last but not least

tip of the iceberg

Legal-writing experts give the same advice. Ross Guberman, a legal-writing teacher and the author of Point Made, came out against some clichéd legal terms on his website. He particularly attacked these four:

second bite (at the apple)

inextricably (linked)

slippery slope

bald (assertions)

By the way, Guberman’s piece on the subject is called Avoid These Clichés Like the Plague.

Bryan Garner, too, opines that clichés proliferate excessively in legal writing. As he asks in Garner’s Dictionary of Legal Usage,

Why are dissents so often vigorous, objections so often strenuous, evidentiary hearings always full blown, and exceptions invariably carved out?

Echoing O’Conner, he advises, “If one finds oneself writing or talking in ready-made phrases, it is time to draw back and frame the thought anew.” Id. at 165.

Two other legal-writing experts, Tom Goldstein and Jethro Lieberman, say a cliché “broadcasts the writer’s laziness.” The Lawyer’s Guide to Writing Well at 119. They recommend we all

Get down to brass tacks and, with both feet on the ground, face the music and turn over a new leaf. Gird your loins at these wolves in sheep’s clothing, give clichés the short shrift, and from now on, avoid them like . . .

Well, you know how it ends.

My colleague Gretchen Sween captured the paradox of clichés nicely on her blog, True Complaint. Once, these expressions were

so vivid, so fresh that everyone wanted to use them . . . . [but] . . . because everyone wanted to use them, the expressions soon lost their sheen. They turned trite and shabby. They became linguistic pariah, indicating a failure to think outside the box.

But must we banish all clichés? Or can legal writers turn clichés to their advantage?

Maybe.

O’Conner acknowledges that a clever twist on a cliché can make readers smile. For example, she says, “bankruptcy is a fate worse than debt.” O’Conner at 165.

One legal writer, D’Ann Rasmussen, makes a case for putting a spin on clichés in her article, A Fresh Look at Clichés, 5 Scribes J. Leg. Writing 152 (1994–1995). Naturally, she’s mostly against clichés—she rightly opposes using them for emphasis: “Their main virtue is brevity, not forcefulness.” Id. But she believes “even the most used up cliché can gain new life at the hands of a skilled writer” and offers these examples:

tried and true becomes tried and untrue

sadder but wiser becomes gladder but wiser

through thick and thin becomes through thin and thin (attributed to Henry Thoreau).

I’m not sure I agree. You should play it by ear. It goes without saying that attempts at cleverness and humor often fall flat. As a pancake.