LawProse Lesson #212: Be the voice of reason.

Does a snarky tone win in motion practice?

Among the most common remarks that judges make about advocacy is how extremely distasteful they find digs, jabs, put-downs, and negative characterization of opposing counsel and opposing clients. Yet litigators everywhere seem to adopt these tactics more than ever. So what’s the best approach, and why? Should we trust what judges say about motions they find persuasive? Or should we assume that litigators have learned something—that the judges really are favorably affected by the negative tactics and don’t truly know what persuades them?

Say you’re a judge and you pick up this motion:

Before:
Callan Co. makes meritless waiver claims. It claims, for example, that Tarton Systems didn’t disclose the rulings of the court that they lost on. But Callan blithely ignores all of the findings dealing with the appeal on the merits, where Tarton complained about mistakes below. Paraphrasing Mark Twain, Callan’s reports of Tarton’s alleged waiver have been greatly exaggerated. For example, Callan blunderingly carps that appellants didn’t challenge the Statement of Decision. Callan’s claim is so wrong on many levels. Because Callan’s brief is filled with plentiful blatant and fanciful exaggerations—too many to list here—Tarton attaches a table that delineates 34 other examples for the court’s amusement or chagrin (Appendix pp. 1–3).

It could have read this way:

After:
Callan Co. asserts that Tarton Systems has waived this appeal. For example, Callan claims that Tarton did not challenge the statement of decision and cites In re Marriage of Arceneaux in support. Arceneaux is not on point because the plaintiff in that case did not object to the proposed statement of decision or move for a new trial. Here, Tarton repeatedly objected to the statement, moved for a new trial, and also moved for a new and different judgment. Callan also claims that Tarton did not disclose adverse rulings of the court. In fact, though, Tarton has filed with this court the entire record of the appeal on the merits.

That’s an actual example that I’ve shown to hundreds of groups of lawyers and judges. Every group has reacted negatively to the first motion and positively to the second motion.

It stands to reason that we can mostly accept what judges say about persuasion. On this particular point, the reason is obvious: judges must understand and accord competing interests their due. A judge’s job is to be an impartial arbiter of the law. When the advocate takes a sardonic, barb-ridden tone, it becomes very difficult for the judge to align with that advocate.

The moral of the story: Always strive to be the voice of reason. An advocate’s role is to be a client’s champion in court. The advocate who plays the buffoon in a farce is botching the job.

Further reading:
The Winning Brief 459–68 (3d ed. 2014).

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LawProse Lesson #211: Nouns of multitude.

Nouns of multitude.

     Last week, we discussed the distinction between collective nouns and mass nouns and how you treat each in terms of numerical agreement. This week, we’ll address the related concept of nouns of multitude {a number of} {a bunch of} {a lot of}.

These constructions typically place a collective noun after an indefinite article (a or an) and before an of-phrase using a plural or mass noun {a host of problems} {a group of doctors} {a set of stemware}. All nouns of multitude follow the same rules for grammatical concord: verbs and pronouns must agree in number with the noun following of, not the singular noun of multitude. As with collective nouns, the syntax is governed by meaning and not by strict grammar—a type of construction called “synesis” or “notional concord.”

So if the noun after of is plural (as it typically is) the verb and pronoun must be too {A number of listeners always complain whenever we bring in a guest host.} {A gang of kids were riding their bikes around the neighborhood.}. But if the noun is a singular mass noun, use singular verbs and pronouns {A lot of this bread has mold on it.}.

The same rules apply for nouns of partition, which refer to a part of the group that the noun after of represents {fraction} {part} {portion}; actual fractions; and percentages {A fraction of the students raised their hands.} {One-quarter of the competitors start at 10 a.m.} {Only 42% of doctors report getting annual physicals.}. Even a fraction that is plural in form gets the singular treatment if it’s followed by of and a mass noun {Two-thirds of Mary’s garden is planted with cockle shells.}.

Seems simple enough, right? Alas, the issue is not without its traps. First, not all a/an + [noun] + of + [plural noun] constructions use nouns of multitude or partition. Typically, these imposters refer to containers or units of measurement {a jar of jellybeans} {a pound of nuts}. Here, the container or measurement itself governs meaning and therefore concord {A bushel of apples costs $60.}. Second, when the precedes number of instead of a, the emphasis is on the number itself, not the individual things it describes, so it is treated as singular. Compare “A number of applicants were unqualified” with “The number of unqualified applicants was surprising.” But not all nouns of multitude are treated this way (yes, there are exceptions to this exception!)—consider majority {The majority of senators vote along party lines.}. As with collective nouns, let meaning and emphasis—and above all, consistency—guide your choices. That way, you’ll avoid a multitude of problems.

A number of things have been mentioned here. A fraction of them are truly important. Just try to remember that two-thirds of Mary’s garden is planted with cockle shells.

Further reading:
Garner’s Dictionary of Legal Usage 874–75 (s.v. “synesis”) (3d ed. 2011).
Garner’s Modern American Usage 578 (s.v. “number of”) (3d ed. 2009).
The Redbook: A Manual on Legal Style § 10.25(a), at 195 (3d ed. 2013).
G.H. Vallins, Good English: How to Write It 17–18 (1951).
R.W. Burchfield, The New Fowler’s Modern English Usage 158, 534 (1996).
Bill Walsh, Yes, I Could Care Less 76–79 (2013).

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LawProse Lesson #210: Collective vs. Mass Nouns

Collective vs. Mass Nouns.

     In last week’s lesson on and/or, one of the examples used this sentence:

The team of lawyers, paralegals, and mediators resolved the case quickly for their clients.

One reader wrote and asked why the correct wording isn’t “its clients” instead of “their clients.”

It’s an arguable point—but one with a preponderance of the merits on one side. Team is a collective noun referring to a group of people or things. Grammatically, such nouns are normally singular {group} {flock} {faculty}. But the pronouns and verbs they take can be either singular or plural, depending on whether the emphasis is on the group acting as a unit or on the constituent members acting individually. (We addressed this in greater detail in Lesson #162.) The singular or plural treatment also depends on whether you’re using American English (AmE) or British English (BrE).

In BrE, where the preference is to treat collective nouns as plural, no one would bat an eye at “the team are” or “the team . . . their.” In AmE, by contrast, the preference is toward treating collective nouns as singular {The flock begins its migration in Canada.} {The executive board answers to its corporate shareholders.}. The plural treatment often sounds awkward to American ears. So if the emphasis is on the group members acting individually, it is best to add members or a similar noun explicitly referring to the group’s individual constituents, dodging any question about grammatical agreement.

Awkward: The committee are debating their decision.
Better: The members of the committee are debating their decision.
Better still: The committee members are debating their decision.

Team, however, is a little more flexible than other collective nouns in AmE. A categorical exception, team names are almost always treated as plural even in AmE. So we’re used to thinking of teams in terms of their members, even when those members are acting as a unit. This may be because team names tend to be plural {Denver Broncos} {Detroit Tigers}—but this remains true even when team names are singular in form {The Tampa Bay Lightning were founded in 1992.} {The Utah Jazz were originally located in New Orleans.}.

Names of organizations such as companies or law firms, on the other hand, typically take singular verbs and pronouns, as the reference is usually to the body as a whole—even when the name is plural in form {American Airlines has a fleet of nearly 1,000 aircraft.} {Kirkland & Ellis is representing the plaintiff.}.

If verb choice with a collective noun has you stumped, try looking to the pronoun, the choice of which often comes more instinctively. While you could drive yourself mad trying to decide whether the Miami Heat is having a bad season or are having one, you would never say, “It didn’t make the playoffs.” They didn’t. (So they are having a bad season—or were.) Likewise, you’d never say, “US Airways benefited from their merger with American Airlines.” It benefited from its merger with American.

Collective nouns shouldn’t be confused with mass nouns, also called “noncount nouns,” which cannot be broken down or individually enumerated. These are generally either abstract nouns {courage} {evidence} {communism} or concrete nouns referring to an aggregation of things taken as an indeterminate whole {luggage} {cutlery} {stationery}.

The key difference between mass nouns and collective nouns is that unlike collective nouns, mass nouns never take indefinite articles (a or an) and typically do not have plural forms. (Compare a team to an evidence, or two groups to two luggages.) Some mass nouns, however, are always plural in form {manners} {scissors} {clothes}. But just as singular mass nouns don’t take an indefinite article, plural mass nouns don’t combine with numbers: you’d never say “three scissors” or “six manners.” Some that refer to concrete objects, such as scissors or sunglasses, can be enumerated by adding words such as pair of {a pair of scissors} {three pairs of sunglasses}. Likewise, singular concrete mass nouns can usually be enumerated with words such as piece of {a piece of cutlery} {seven pieces of stationery}.

In short, while mass nouns are always treated as singular (except for the always-plural exceptions), collective nouns can go either way, depending on context. There’s little in the way of “right” and “wrong” here: the most important concern is that once you choose singular or plural, you should apply that choice consistently, both between pronouns and verbs and throughout a given piece of writing.

Back to the sentence we began with. Should it be “their clients” or “its clients”? As we’ve seen, a perfectly good argument could be made for treating team as singular. But the sentence as written is equally defensible: though the prepositional phrase of lawyers, paralegals, and mediators doesn’t affect grammatical concord (team is still the pronoun’s antecedent), the enumeration of the team’s members militates in favor of a plural sense. The choice is ultimately yours, and neither choice is wrong—as long as you stick with it.

Next week, we’ll discuss how nouns of multitude, which are collective or mass nouns denoting quantity, followed by of {a number of} {a bunch of} {the majority of}, are treated differently.

Further reading:
Garner’s Dictionary of Legal Usage 172–73 (s.v. “collective nouns”), 684 (s.v. “plurals (B)”), 874–75 (s.v. “synesis”) (3d ed. 2011).
Garner’s Modern American Usage 164 (s.v. “collective nouns”), 209 (s.v. “count nouns and mass nouns”) (3d ed. 2009).
The Redbook: A Manual on Legal Style § 10.10(j), at 181; § 10.25(b), at 195–96 (3d ed. 2013).

The Chicago Manual of Style §§ 5.8–5.9, at 205; § 5.31, at 210–11; § 5.131, at 238 (16th ed. 2010).
William A. Sabin, The Gregg Reference Manual ¶¶ 1019–1020, at 264–65; ¶ 1049a, at 282 (10th ed. 2005).
Longman Grammar of Spoken and Written English § 4.3.2, at 243–45; § 4.3.4, at 247–50 (Douglas Biber et al. eds., 1999).
H.W. Fowler, The New Fowler’s Modern English Usage 35 (s.v. “agreement (5)”), 157–58 (s.v. “collective noun”) (R.W. Burchfield ed., 3d ed. 1996).
Bill Walsh, Yes, I Could Care Less 76–79 (2013).

Thanks to Sam Pietsch for suggesting this topic.

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LawProse Lesson #209: Ban “and/or”

Ban and/or.

And/or dates from the mid-19th century. Although lawyers and courts have vilified and/or for most of its life, this bit of legalese continues to infest legal writing and create ambiguity.

The literal sense of and/or is “both or either,” so that A and/or B means (1) “A,” (2) “B,” or (3) “both A and B.” Since and/or has a literal sense, what’s the problem? “Both or either” suggests a choice, but and/or is often used in contexts where logically there is no real choice. This makes the drafter’s intent hard to discern.

Courts are often asked to decide the intended effect of and/or. For example, if a provision states “Robert and/or Jane must sign to make this agreement valid,” will the agreement be valid if only Robert or only Jane signs—can they really bind each other without the other’s consent? Or is it valid only if both Robert and Jane sign?

About half the time, and/or means or:

Ex.: A sign: “No food and/or drink allowed.” [It says that each is disallowed. Read: “No food or drink allowed.”]
Ex.: Language in a rental agreement: “Williams must give the owner prompt notice of noise, traffic, and/or pet violations observed on the property.” [What is Williams required to give notice of: all three violations occurring at once, or in some combination, or individually? Read: “Williams must give the owner prompt notice of all noise, traffic, or pet violations observed on the property.” (If Williams must give notice of each type individually, it follows that he must also give notice of any combination of them.)]

And about half the time, and/or means and:

Ex.: A provision in a statute: “All applicable state and/or federal regulations apply to the transfer of goods.” [Or falsely suggests a choice between regulations. Read: “All applicable state and federal regulations apply to the transfer of goods.”]
Ex.: A statement in a report: “The team of lawyers, paralegals, and/or mediators resolved the case quickly for their client.” [Who was on the team? Did they all contribute to the resolution or not? Read: “The team of lawyers, paralegals, and mediators resolved the case quickly for their clients.”]

In most legal drafting—when linguistic precision is essential—it’s best to add the words or both or either:

Ex.: A provision in a statute: “Violation of this provision is punishable by imprisonment of up to 5 years and/or a $10,000 fine.” [If the violator can be both imprisoned and fined, read: “Violation of this provision is punishable by imprisonment of up to 5 years, a $10,000 fine, or both.” If only one punishment can be levied, read: “Violation of this provision is punishable by either imprisonment of up to 5 years or a $10,000 fine.”]

If the document lists several items, and not all are required, introduce the list with any of the following:

Ex.: A provision in a regulation: “To prove residency, please provide (1) a valid, unexpired driver’s license; (2) a valid, unexpired voter-registration card; and/or (3) a W-2 or 1099 from the current tax year.” [Does the applicant need to provide just one or all of the documents? Read: “Any of the following documents will be accepted to verify a person’s residency: (1) a valid, unexpired driver’s license; (2) a valid, unexpired voter-registration card; or (3) a W-2 or 1099 from the current tax year.”]

Small wonder that and/or has been held to invalidate provisions in affidavits, wills, indictments, judgments, contracts, statutes, and findings of fact.

Although using and/or seems like a quick and easy drafting tool, it’s more of a quick and dirty one: it too often reflects a failure to think something through or to understand what the parties intend. It creates room for disagreement and litigation. After some practice, you’ll find it surprisingly easy and workable to avoid the phrase. In the long run, the extra effort you make to choose between and and or will save you much effort, money, or both.

Further reading:
Garner’s Dictionary of Legal Usage 57–58 (3d ed. 2011).
Garner’s Modern American Usage 45–46 (3d ed. 2009).
Garner, Legal Writing in Plain English 133–34 (2d ed. 2013).
R.W. Burchfield, The New Fowler’s Modern English Usage 53 (3d ed. 1996).
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116–25 (2012).
David Mellinkoff, The Language of the Law 147–52, 306–10 (1963).

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LawProse Lesson #208: “Graduate,” vb.

Graduate, vb.

     Last week, at a performance of The Originalist in Washington, D.C., the stage actor Ed Gero—in a superb portrayal of Justice Antonin Scalia—delivered the small gaffe of having the Justice say “she graduated Harvard College.” After receiving a friendly suggestion later that evening, Mr. Gero assured me that in future performances, he will say “graduated from,” a necessity to verisimilitude in his portrayal.

In fact, though, the traditional idiom—dating from the 16th century—was that the school graduated the student {Yale graduated Sue.} or, more commonly, that the student was graduated from the school {Sue was graduated from Yale.}. During the 19th century, usage shifted from the passive voice, so that graduate came to be what is known as an “ergative verb”: a student was said to graduate from the school {Sue graduated from Yale.}. This continues to be the most common and accepted wording.

But in the mid-20th century, usage began to shift again, toward an even shorter transitive form by omitting the word from {My son graduated high school last week.}. Although this wording is becoming increasingly common, it is best avoided. A school can graduate a student or a student can graduate from a school, but a student does not graduate a school—at least not in good usage.

As the Washington Post copyeditor Bill Walsh puts it, “When I hear ‘I graduated college,’ I want to answer ‘No, you didn’t.’ . . . [Y]ou call your education into question if you omit the from.”

With the graduation season upon us, that’s a good thing to remember.

Further reading:
Garner’s Modern American Usage 399–400 (3d ed. 2009).
R.W. Burchfield, The New Fowler’s Modern English Usage 339 (3d ed. 1996).
Eric Partridge, Usage and Abusage 134 (Janet Whitcut ed., 1994).
Bill Walsh, Yes, I Could Care Less 65, 99 (2013).
The Associated Press Stylebook and Briefing on Media Law 119 (2013).

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LawProse Lesson #207: Three ways to improve a statement of facts.

Three ways to improve a statement of facts.

First, let it progress naturally from beginning to end—almost invariably in chronological order. Just tell the judge your story of the relevant events that gave rise to this legal dispute. Presenting the facts in order gives the judge a more coherent picture of the case.

Second, remove all argument and editorializing. Those don’t belong in a statement of facts. Including them is counterproductive because doing so is inevitably transparent. As if that weren’t enough, argument within a statement of facts may even violate court rules.

Third, unflinchingly include the unfavorable as well as the favorable facts. At best, you lose credibility fast if you unfairly exclude germane facts that don’t support you. And you’ll fail to make a good argument that overcomes them. At worst, the judge will think you’re cherry-picking what to divulge—and maybe even think you’re hiding something from the court.

The statement of facts in a brief gives you an opportunity to shine as a storyteller. Learn the techniques of writing short stories. But never forget you’re dealing in nonfiction!

Further reading:
Garner, The Winning Brief 524–46; 725–28; 739–42 (3d ed. 2014) (with many detailed examples).
Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 93–96 (2008).

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LawProse Lesson #206: Statutory and Contractual Interpretation.

What important skill is most generally lacking among law-school graduates?

Almost certainly this: the ability to develop, hone, and deliver arguments about the interpretation of contracts and statutes. Lawyers often spend months working on text-based cases without realizing that their best argument is the ordinary-meaning canon, the negative-implication canon, the last-antecedent canon, the surplusage canon, or the associated-words canon. Many have never even heard of these canons of construction, though they’re applied in thousands of American cases every year.

Although law schools are largely to blame for this curricular fault, many—such as Harvard—are beginning to reform. But most lawyers who graduated from law school after about 1960 must learn the techniques on their own.

What if your judge isn’t a textualist? Not to worry: all judges are textualists first (“We begin with the words . . .” is a mantra in judicial opinions), even if they then move on to consider other matters, such as their own policy preferences. They all start with the text. Legislative history comes up later if at all.

What about the canons listed above? Here are their meanings:

1. Ordinary-meaning canon: Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.
2. Negative-implication canon. The expression of one thing implies the exclusion of others.
3. Last-antecedent canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.
4. Surplusage canon. If possible, every word and every provision is to be given effect. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.
5. Associated-words canon.
 Associated words bear on one another’s meaning.

If you’d like to know more, Bryan Garner will be teaching “Statutory and Contractual Interpretation” on a nationwide LawProse tour this summer. (Dates will soon be posted on our website.) He’ll be teaching from the book he coauthored with Justice Antonin Scalia: Reading Law: The Interpretation of Legal Texts (2012). The book has already been cited as authority in more than 225 state and federal decisions.

Controversial? Nah—not when it comes to statutes and contracts. Reading Law cites dozens of Supreme Court justices with approval, with timeless examples from Chief Justice John Marshall, Justice Joseph Story, Justice Robert H. Jackson, and Justice Felix Frankfurter. There is praise for Justice John Paul Stevens and Justice Ruth Bader Ginsburg. But most of the 650+ cases are drawn from state supreme courts.

If you want to know how to unlock straightforward but sophisticated arguments about legal texts, the keys aren’t hard to find.

Further reading:
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).

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LawProse Lesson #205: Lay, v.t. vs. lie, v.i.

Lay, v.t. vs. lie, v.i.

These two short verbs can cause tall trouble. Let’s lay down some helpful guidelines so we won’t be accused of lying down on the job.

Lay means “to put down, place, or arrange.” It’s always transitive—it needs a direct object {Please lay the purchase contract on Stan’s desk.}.

Lie means “to recline, be situated.” It’s always intransitive—it can’t take a direct object {I’m going to lie on the bed until the dizziness stops.}.

Using lay instead of lie is one of the most widely known usage errors in speech and writing {She is going to lay [read lie] down in the guest room.} {We were laying [read lying] on the beach yesterday.}. Although this error has become so common that some commentators claim it’s no longer a mistake, using lay without a direct object, in the sense of lie, is nonstandard. People who know the difference will catch the misuse.

A big source of the confusion is the way these verbs are inflected—lay is also the past-tense form of lie:

lay>laid>laid: {Please lay down the weapon.} {He laid the weapon down immediately.} {The problem has been laid to rest.}.

lie>lay>lain: {The nurse told me to lie on the stretcher.} {My mother lay down and took a nap.} {The disease has lain dormant for two years.}.

So both these sentences are correct: “I’m going to lay the baby down for his nap.” and “The baby lay down for his nap at 2:00 p.m.” The first sentence uses the transitive lay in the present tense; the second uses the past tense of intransitive lie. And if you laid the baby down ten minutes ago, he’s lying in his crib now. Yes, it can make your head spin and make you want to lie down or at least lay down your head.

We could go on and on. But we’ll now lay this lesson aside and lie low until next week.

Further reading:
Garner’s Modern American Usage 501–03, 510 (3d ed. 2009).
Garner’s Dictionary of Legal Usage 528, 544 (3d ed. 2011).
The Redbook: A Manual on Legal Style § 12.3, at 290 (3d ed. 2013).

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LawProse Lesson #204: “Lay of the land” or “lie of the land”?

Lay of the land or lie of the land?

Literally, the phrase means “the arrangement of an area’s terrain; topography.” Figuratively, it refers to “the facts of a given situation; the current state of affairs.”

The phrase is an Americanism dating from the late 18th century. From the beginning, it’s been lay of the land—although as soon as it caught on in England, speakers of British English (BrE), beginning about 1860, started “correcting” the phrase to lie of the land. Today the lie form is about twice as common in British print sources.

But in American English (AmE), lay has always been predominant—today by an 8:1 ratio in print sources.

It’s true that using lay as a noun might not seem entirely traditional. But in 1934 the venerable Webster’s Second International Dictionary listed lay (n.) with ten different senses, #6 being “position and arrangement; specif., topographical features and situation; as, the lay of the land.”

The first edition of the Oxford English Dictionary (1933), completed just a year before Webster’s Second, lists the same sense with illustrative quotations from 1819 {lay of the country} and 1864 {lay of the land}—the latter being from Henry David Thoreau.

The British “correction” of the phrase didn’t really take hold in BrE as the established form until the late 1880s.

But there’s no reason for Americans to think that the AmE form is inferior. It has a better lineage than the BrE form.

Golfers have good and bad lies in the fairway; carpet installers know to roll carpets against the lay of the nap; and hens have productive lays when their eggs are discharged. That’s all the examples we’ll give here: this is a clean column.

That’s the linguistic lay of the land.

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Garner’s Usage Tip of the Day: Miscellaneous Entries.

Miscellaneous Entries.

libido. Although dictionaries once recorded /li-BIY-doh/ as the preferred pronunciation, /li-BEE-doh/ is now the established preference in American English.

licorice (/LiK-uh-rish/) is the standard spelling. “Liquorice” is a variant form. This word shouldn’t be confused with its uncommon homophones, “lickerish” (= lascivious, lecherous) and “liquorish” (= tasting like liquor).

lie/lay/lain. So inflected (except when “lie” means “to utter a falsity” — see below). A murderer may “lie in wait.” Yesterday he “lay in wait.” And for several days he has “lain in wait” — e.g.: “The Ramseys say an intruder may have lay [read 'lain'] in wait for hours before killing the 6-year-old beauty queen.” “Ramseys’ Mission: Find the Killer,” Austin Am.-Statesman, 18 Mar. 2000, at B8. In the sense of telling an untruth, the verb is inflected “lie”/”lied”/”lied.”

lie low; lay low. The latter phrase is incorrect.

lien, n. (= a legal right or interest that a creditor has in another’s property, lasting usu. until a debt that it secures is satisfied), is pronounced, most properly, /LEE-uhn/, or commonly but less properly /leen/ or /lin/.

For information about the Language-Change Index click here.

Quotation of the Day: “There is more to our language than just words, but the classic word-book — the dictionary — seems to many people to be the receptacle for the whole language, indeed to be the symbol of it. There seems to be something comforting about having on one’s bookshelf a handy directory to all the words of the language.” Randolph Quirk, “Thinking of Words,” in The Linguist and the English Language 128, 137 (1974).

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