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

Miscellaneous Entries.
verbatim; literatim; ipsissima verba. These apparent synonyms carry slight nuances. “Verbatim” = word for word. “Literatim” = letter for letter. Sometimes the phrase “verbatim et literatim” is seen. “Ipsissima verba” (lit., “the selfsame words”) = the exact language used by someone quoted (Webster’s Collegiate Dictionary [11th ed.]).

verdict refers to a jury’s pronouncement. It shouldn’t be used in reference to a court’s decision — e.g.: “Associate Justice Sandra Day O’Connor jerked forward in her black leather chair, visibly astonished. . . . The verdict [read 'decision'] is expected next year.” Keith C. Epstein, “Ohio Free Speech Case Shocks Supreme Court,” Plain Dealer (Cleveland), 13 Oct. 1994, at A3. Language-Change Index — “verdict” in reference to a judge’s decision: Stage 2.

vermilion. So spelled.

vertebra (= a single bone that, together with similar bones, forms the spinal column) has two plurals: “vertebrae” (/VUHR-tuh-bree/ or /VUHR-tuh-bray/) and “vertebras” (/VUHR-tuh-bruhz/). The Latinate plural (“vertebrae”) is so common that some writers mistake it for a singular — e.g.: “There were fears that he could be crippled after the fall, but an operation successfully treated a fractured vertebrae [read 'vertebra'].” Charles Laurence, “Death Fall: British Skydiver Flies Home,” Daily Telegraph, 5 July 1997, at 3. Language-Change Index — “vertebrae” misused as a singular for “vertebra”: Stage 1.

vertical, adj., is sometimes misspelled *”verticle” — e.g.: “To achieve that goal, the companies said they will test verticle-takeoff [read 'vertical-takeoff'] and landing technology.” “McDonnell-Boeing Aim: Cheaper Space Travel,” Orange County Register, 16 June 1995, at C2.

vestigial. So spelled; *”vestigal” is a not-uncommon misspelling.

Veterans Administration. “Veterans” takes no apostrophe.

*Invariable inferior form.

For information about the Language-Change Index click here.

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Quotation of the Day: “The progress of language is the absorption of new analogies.” T.E. Hulme, Notes on Language and Style 15 (1929).
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Garner’s Usage Tip of the Day: waylay / waylaid / waylaid.

waylay / waylaid / waylaid.
Occasionally the past tense or past participle is misspelled *”waylayed” — e.g.:

o “Keggi’s career was waylayed [read 'waylaid'] in 1993 when she drank some bad water and was stricken with lingering symptoms from E-Coli bacteria.” Paul Harber, “They’re Going the Distance,” Boston Globe, 24 Apr. 1997, at C10.

o “The Trojans melted at 12:25 of the second half Friday, when [Taj] Gibson (team-high 16 points and 12 rebounds) was waylayed [read 'waylaid'] with the fourth foul.” Brian Hamilton, “Heels Rush In,” Chicago Trib., 25 Mar, 2007, Sports §, at 1.

o “Within the first three hours of the 26.2-mile event, hundreds of runners had been waylayed [read 'waylaid'] by the heat and medical tents were filled with participants requiring treatment for dehydration and heat exhaustion.” Michael Tsai, “Honolulu Marathon Feels Chicago’s Heat,” Honolulu Advertiser, 10 Oct. 2007, at D1.

*Invariable inferior form.

For information about the Language-Change Index click here.

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Quotation of the Day: “So far, the anglophone world has never really been forced out of its monoglot complacency, and the legend that there is something in the Anglo-Saxon genes that forbids linguistic proficiency continues to be fostered.” Anthony Burgess, A Mouthful of Air 155 (1992).
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LawProse Lesson #159: Were you “summonsed” or “summoned” to appear in court?

Were you summonsed or summoned to appear in court?

Although summonsed isn’t downright wrong, in modern legal usage it’s much preferable to say that someone was summoned to appear in court.

Summons as a verb dates from the 17th century. It has been used to mean (1) “to cite to appear before a court, judge, or magistrate,” or (2) “to request (information) by summons.” The common word from which it is derived (the noun summons) predates this use by four centuries.

The verb summon has always been much more common. Searches of Google Books, Lexis, and Westlaw show that 21st-century legal writers rarely use summonsed. For example, summoned is the only form used in U.S. Supreme Court opinions. And a Westlaw search of writings since 1999 returns only 804 hits for summonsed; in many of these, the term appeared in a quotation. A general Google search shows 244,000 hits for summonsed but over 28.4 million hits for summoned. (Of course, that 28.4 million also includes all instances in which summoned is used in nonlegal contexts.) Google Books returns 25,000 hits for summonsed spanning several centuries, but about 70% of those are from nonlegal texts.

Summonsed grates on the ears of many respected legal writers. One of the greatest, Glanville Williams, denounced it this way: “The horrible expression ‘summonsed for an offence’ (turning the noun ‘summons’ into a verb) has now become accepted usage, but ‘summoned’ remains not only allowable but preferable.” Learning the Law 15 n.28 (11th ed. 1982).

     That’s still true today. Let’s summon up the courage to call summons, as a verb, a needless variant of summon.

Further reading:
Garner’s Dictionary of Legal Usage 864-65 (3d ed. 2011).
Merriam-Webster’s Collegiate Dictionary 1251 (11th ed. 2011).
Black’s Law Dictionary 1574 (9th ed. 2009; 10th ed. forthcoming).

“summons, v.”. OED Online. March 2014. Oxford University Press. http://www.oed.com/view/Entry/194011?rskey=Hm7bl9&result=2&isAdvanced=false (accessed April 10, 2014).

Thanks to John N. Love for suggesting this topic.

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Garner’s Usage Tip of the Day: water under the bridge; water over the dam.

water under the bridge; water over the dam.
Both phrases allude to time gone by and events passed. What the latter phrase adds to the former is the connotation of missed opportunities — e.g.:

o “Whether other prosecutions should have taken place under the Intelligence Identities Protection Act is another question, and it appears at this point to be water over the dam unless Mr. Fitzgerald and the Department of Justice have further plans in mind.” Editorial, “Libby’s Fate,” Pitt. Post-Gaz., 7 June 2007, at B6.

o “After a one-year hiatus — and a whole lot of water under the bridge since then — the World Bank is bringing back the office Christmas party.” Amy Argetsinger & Roxanne Roberts, “Banking on Holiday Cheer,” Wash. Post, 3 Dec. 2007, at C3.

The two expressions occasionally get mangled — e.g.: “As I’ve said before, Newark never should have dumped $210 million into the arena . . . . That, however, is water over the bridge [read 'water under the bridge' or 'water over the dam'] and into the sewer.” Joan Whitlow, “Around Arena, Rubble, Rubble, Toil and Trouble,” Star-Ledger (Newark), 5 Oct. 2007, Editorial §, at 19.

For information about the Language-Change Index click here.
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Quotation of the Day: “When we speak or write we want to be understood and respected. We want to convey our meaning and we want to do it in a way that will command admiration. To accomplish these ends we must know the meanings of words, their specific meanings and their connotations, implications and overtones.” Bergen Evans & Cornelia Evans, A Dictionary of Contemporary American Usage v (1957).
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Garner’s Usage Tip of the Day: watermark; water-mark; water mark.

watermark; water-mark; water mark.
“Watermark” = (1) a line made by a body of water at its surface (as in a flood) and used to gauge the water’s depth; or (2) a faint identifying mark pressed into fine paper during manufacture, or an analogous identifier embedded in a computer file by software. The word in sense 2 is always written as a single compound, while in sense 1 it may also be hyphenated or made two words. When sense 1 is modified by adjectives such as “high” and “low,” the compound noun must be split since the adjective specifically modifies “water,” forming a phrasal adjective that in turn modifies “mark’ {the high-water mark of her career}. To write of a *”high watermark” is to invite miscues, as the reader may think of a paper-company logo too near the top of a page — e.g.:

o “The oyster reached its high watermark [read 'high-water mark'] here in the last decade of the 19th Century. At least half a dozen restaurants known as ‘oyster houses’ vied for the carriage trade with a variety of preparations.” William Rice, “Raw Deal,” Chicago Trib., 23 June 2002, Mag. §, at 25.

o “In today’s Information Age, work is accomplished — or should be — through a series of linked processes where client service, flexibility and cost containment have replaced volume as the high watermark for [read 'high-water mark of'] success.” John A. Uzzi, “What It Takes for Agencies to Thrive in the Information Age,” Nat’l Underwriter — Life & Health, 30 Sept. 2002, at 29. (Unfortunately, correcting ‘high watermark’ hardly improves this commercialese.)

*Invariable inferior form.

For information about the Language-Change Index click here.

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Quotation of the Day: “Authenticity in fiction is like sincerity in acting — you’ve got to know how to fake it.” Henry Louis Gates Jr., “Time Bandits,” New Yorker, 26 Jan. 1998, at 83.
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Garner’s Usage Tip of the Day: Language-Change Index.

Language-Change Index.
The third edition of Garner’s Modern American Usage reflects several new practices. Invariably inferior forms, for example, are now marked with asterisks preceding the term or phrase, a marking common in linguistics.

The most interesting new feature is the Language-Change Index. Its purpose is to measure how widely accepted various linguistic innovations have become. Such a measuring system for usage guides was first proposed by Louis G. Heller and James Macris in 1967. They noted that “usage specialists can make a clear-cut demarcation of phases in the evolutionary process relevant to the inception and development of alternative terms.”

In these tips, the five stages are tagged as:

Stage 1 (“rejected”): A new form emerges as an innovation (or a dialectal form persists) among a small minority of the language community, perhaps displacing a traditional usage (e.g.: *”bedroom suit” for “bedroom suite”).

Stage 2 (“widely shunned”): The form spreads to a significant fraction of the language community but remains unacceptable in standard usage (e.g.: “swam” for past-participial “swum”).

Stage 3 (“widespread but . . .”): The form becomes commonplace even among many well-educated people but is still avoided in careful usage (e.g.: “unique” as a word of degree, as in “very unique”).

Stage 4 (“ubiquitous but . . .”): The form becomes virtually universal but is opposed on cogent grounds by a few linguistic stalwarts (die-hard snoots) (e.g.: “resumé” for “résumé”).

Stage 5 (“fully accepted”): The form is universally accepted (not counting pseudo-snoot eccentrics) (e.g.: “sculpt” as a verb).

*Invariably inferior form.

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Quotation of the Day: “The English language has been quite needlessly and foolishly complicated by lawyers, politicians, tradesmen, bad poets, and a whole host of woolly-minded people.” S.P.B. Mais, The Writing of English 235 (1935).
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Garner’s Usage Tip of the Day: Miscellaneous Entries.

Miscellaneous Entries.
veld /velt/ (= an open, nearly treeless grassland) is the standard spelling. *”Veldt” is a variant (chiefly in South African English).

vendor (= one who sells) is the standard spelling. *”Vender” is a variant. “Vendor” is pronounced /VEN-duhr/, not /VUN-dor/.

venerable = (of people) worthy of being venerated, revered, or highly respected and esteemed, on account of character or position; commanding respect by reason of age combined with high personal character and dignity of appearance; (of things) worthy of veneration or deep respect. The word is a cliché when used inaccurately for “old.” E.g.: “More venerable [read 'Older' or, perhaps, 'Senior'] citizens may recall the days when the electric chair was trucked around the state so that executions could be carried out at parish halls.” James Gill, “Taking Executions on the Road,” Times-Picayune (New Orleans), 20 June 1997, at B7. Language-Change Index — “venerable” as a euphemism for “old”: Stage 4.

veniremember; venireman; *venireperson. The terms all mean “one of a panel of prospective jurors.” The best nonsexist form is “veniremember,” not *”venireperson” — even though it contains the awkward “remember.”

veracity = (1) truthfulness; observance of the truth; or (2) truth; accuracy. Sense 1, denoting a quality that people have, is the traditionally correct usage. Sense 2 began as a slipshod extension in the 18th century, and still might be so considered. But it’s now common in law {the veracity of the affidavit}. “Veracity” is not to be confused with “voracity” (= greediness in eating).

veranda (= a roofed porch or portico) is the standard spelling. *”Verandah” is a variant.

For information about the Language-Change Index click here.

*Invariably inferior form.
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Quotation of the Day: “Despite what many people still believe, no such thing as a ‘primitive’ language has yet been discovered. Every language communicates what its native speakers need to communicate in their kind of society.” Peter Farb, Word Play 11 (1974; repr. 1975).
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LawProse Lesson #158: Whether “whether” causes problems for writers.

Whether whether causes problems for legal writers.

Yes, it does — in four ways: (1) in issue statements, (2) in the common misusage of if for whether, (3) in needless instances of whether or not, and (4) in the proper phrasing of an appositive (question whether vs. question of whether vs. question as to whether).

Issue statements

Law students have traditionally learned to start the questions presented in a brief with the word whether, thereby stating what should be a direct question as an indirect question in the form of a sentence fragment. But that’s the least of the problems. The whether-question is invariably either highly abstract and therefore incomprehensible or else factually convoluted and therefore incomprehensible.

One cornerstone of LawProse teaching over the years has been to combat the ills of badly phrased issue statements, beginning with the banishment of whether. The preferable format is the syllogistic deep issue (statement-statement-question), which you can read about in great detail in The Winning Brief (watch next month for the greatly expanded third edition), Garner on Language and Writing (pp. 120-48), or The Elements of Legal Style (pp. 183-87).

Whether vs. if

     Stylists distinguish between these terms. Whether introduces an alternative or possibility {economic conditions will determine whether we have to move}. If states a condition {we’ll need some incentive pay if we have to move}. Avoid misusing if for whether in stating alternatives or possibilities.

Whether vs. whether or not

Whether does not usually need or not because that sense is included in the word {the issue is whether the offer was accepted on time}. Include the or not only when the phrase means “regardless of whether” {the court will hear the motion on Tuesday whether or not the defendant is present}.

Some people are so addicted to or not that they use it unnecessarily and then actually repeat it {we need to decide whether or not we are going to meet or not [drop both or not phrases]}.

Question whether

Over the years, reputable usage authorities have recommended the phrasing question whether {this point raises the question whether equitable estoppel is really any different from promissory estoppel}. The phrase represents what grammarians call an appositive (a noun or noun phrase set beside another noun or noun phrase in a synonymous or identifying way). Hence it’s considered mildly sloppy to write question of whether and downright rubbishy to write question as to whether.

All of which answers the question whether whether has any rightful place in legal writing: it does — just not in issue statements.

Further reading:
Garner’s Dictionary of Legal Usage 420, 941-42 (3d ed. 2011).
Garner’s Modern American Usage 436, 857-58 (3d ed. 2009).
The Redbook: A Manual on Legal Style § 12.3, at 317 (3d ed. 2013).
The Chicago Manual of Style § 5.220, at 284, 299 (16th ed. 2010).
The Elements of Legal Style 183-87 (2d ed. 2002).
Garner on Language and Writing 120-48 (2009).

Thanks to Noah Klug for suggesting this topic.

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Garner’s Usage Tip of the Day: wary; weary.

wary; weary.
To be “wary” of something is to be on one’s guard against it: cautious, watchful, and perhaps worried. E.g.: “Consumers remain wary of anthrax sent through the mail.” Stephanie Miles, “Apparel E-tailers to Spruce Up for Holidays,” Wall Street J., 6 Nov. 2001, at B6. To be “weary” is to be physically fatigued or, by extension, “sick and tired” of something and ready for it to end. E.g.: “Maryland players are apparently growing weary about being asked questions about Duke guard Jason Williams.” Michael Murphy, “Final Four Summary,” Houston Chron., 31 Mar. 2001, at 8.

Doubtless by false association with “wary” and perhaps with “leery” (= suspicious and careful), writers sometimes misuse “weary” — e.g.:

o “As a general principle, Congress should be weary [read 'wary'] of trading tax cuts for expensive new entitlements.” “A Deal Republicans Must Refuse,” Wash. Times, 29 June 2000, at A22.

o “Head coach Mike Novak, Steve’s father, likes his team’s chances but is weary [read 'wary'] about being considered the favorite.” Guy B. Stuller, “Brown Deer Stands Tall,” Milwaukee J. Sentinel, 21 Nov. 2000, at S10.

o “A stamp might be the next tool that helps unite Americans at a time when some residents are weary [read 'wary'] about opening the mail for fear of becoming a victim of a bioterrorist attack.” Sean Adkins, “New Stamp Printed on Local Paper,” York Daily Record, 25 Oct. 2001, at B5.

Language-Change Index — “weary” misused for “wary”: Stage 1.

For information about the Language-Change Index click here.

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Quotation of the Day: “The cohesion of the parts of a cabinet or other piece of furniture seems always the more complete, the less the pegs and tacks, so necessary to it, are exposed to view. It is a secret sense of the truth of this doctrine . . . [that] as taste improves in a nation, . . . the writers prefer short to long conjunctions.” George Campbell, The Philosophy of Rhetoric 386 (1776) (1850 ed. repr.: Lloyd F. Bitzer ed., 1988).
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Garner’s Usage Tip of the Day: wanton; reckless.

wanton; reckless.
In law, the word “wanton” usually denotes a greater degree of culpability than “reckless” does. A reckless person is generally fully aware of the risks and may even be trying and hoping to avoid harm. A wanton person may be risking no more harm than the reckless person, but he or she is not trying to avoid the harm and is indifferent about whether it results. In criminal law, “wanton” usually connotes malice, but “reckless” does not.

In nonlegal contexts, a reckless person is careless and irresponsible but may not have considered the possible consequences {a reckless skateboard rider}. And a wanton person is one who is sexually unrestrained {a wanton lover}, or acts capriciously, cruelly, or maliciously {a wanton bully}.

For information about the Language-Change Index click here.

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Quotation of the Day: “There is no such thing as a new plot; everything has been told over and over again. The only originality is in the new presentation of the material.” Anne Hamilton, How to Revise Your Own Stories 5 (1946).
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