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.

Do you live in the land of and/or? Are you Andorian? (The clever name comes from David Elliott, The Orians, the Andians, and the Andorians, 50 Clarity 10, 11 (2004).)

Then it’s time to move. Every source on legal language that discusses and/or advises not to use it. Here’s a sampling:

“And/or is best discarded.” J.K. Aitken, Piesse’s The Elements of Drafting 85 (9th ed. 1995).

“With experience you’ll find that you don’t need and/or.” Bryan A. Garner, Legal Writing in Plain English 112 (2000).

“If the lawyers did invent and/or, they owe it to the common language to atone, by eliminating and/or from the legal vocabulary . . . .” David Mellinkoff, Legal Writing: Sense and Nonsense 56 (1982).

Judges have been even less kind. In fact, some of the harshest things ever said about legal language have been said about and/or.

“[T]he much condemned conjunctive-disjunctive crutch of sloppy thinkers . . . .” Raine v. Drasin, 621 S.W.2d 895, 905 (Ky. 1981).

“[An] abominable invention . . . as devoid of meaning as it is incapable of classification by the rules of grammar and syntax.” Am. Gen. Ins. Co. v. Webster, 118 S.W.2d 1082, 1084 (Tex. Civ. App.—Beaumont 1938, writ dism’d).

“[T]hat befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning . . . .” Employers’ Mut. Liab. Ins. Co. of Wis. v. Tollefsen, 263 N.W. 376, 377 (Wis. 1935).

Why all the vitriol and venom? After all, the phrase does have a reliable meaning. “A and/or B” means “A or B or both.” But there’s ambiguity hidden within the phrase, and not everyone uses the phrase appropriately. The problems with and/or arise from three sources.

First, and by itself can be ambiguous. “The bank may fund A and B.” If the bank chooses to fund A, must it also fund B? Or may the bank fund A but not B? It’s ambiguous, and litigation has ensued.

Second, or by itself can be ambiguous. “The bank may fund A or B.” If the bank chooses to fund A, is it prohibited from funding B? Or may the bank fund both A and B? It’s ambiguous.

To solve the problems created by the ambiguity of and and or, and/or might work, but given its bad reputation, a better approach is to avoid and/or and add clarifying words. See Kenneth A. Adams, A Manual of Style for Contract Drafting 198 (2d ed. 2008). For example:

The bank may fund A and B but not one or the other.
The bank may fund A or B or both.
The bank may fund A or B but not both.

Third, some writers use and/or where it’s inappropriate. For example, imagine a job application that says: “Check here if you cannot work nights and/or weekends.” If you check the box, what does it mean? You cannot work nights? You cannot work weekends? You cannot work either? It’s fatally ambiguous.

But you can’t fix it this way: “Check here if you cannot work nights or weekends or both.” That doesn’t help. You need two check boxes: “Check here if you cannot work nights. Check here if you cannot work weekends.”

Given the three sources of problems with and/or, here’s my advice: Avoid and/or, but don’t assume there’s always an easy fix by writing “A or B or both.” You have to think through the alternatives and be sure what you want to say.

The State was able to prove there was a delectable amount of cocaine on the premises.

The plaintiff cannot establish that the defendant engaged in willful and wonton conduct.

The defendant exercised control over the plaintiff by directing that the work be done with equipment the defendant controlled and by marinating a right to substitute its own worker for the plaintiff.

When the plaintiff could not perform her work obligations even with the “carrying apron” accommodation, the defendant fried her.