LawProse Lesson #201: “Subpoena” vs. “subpena”

Why do so many federal statutes use the spelling subpena instead of subpoena?

     Funny thing. It seems to be the result of an old choice made for the Government Printing Office Style Manual. The earliest copy we have at LawProse, the 1926 edition, has no reference to the spelling of this word. But the 1973 edition recommends subpena and subpenaed. The change seems to have come sometime in the 1940s. The heyday for this spelling in all sorts of print sources was 1945 to 1955. Since then, it has dwindled. And in 1984 the GPO Style Manual (as it is abbreviated) changed its preference to the standard spelling subpoena.

So it all depends on when a given statute was enacted.

The midcentury idea, apparently, was to eliminate Latinate ligatures known as “digraphs.” (Some people mistakenly call them “diphthongs”: they’re actually digraphs—two vowels traditionally joined into a single character.) The tendency in American English has been to use spellings such as anesthetic (not anaesthetic), encyclopedia (not encyclopaedia), orthopedic (not orthopaedic), and penitentiary (not poenitentiary), etc.

Some words, though, are resistant. Aesthetic and subpoena are good examples. In 1943, as part of the anti-digraph wave, the hefty Funk & Wagnalls New Standard Unabridged Dictionary of the English Language, in two volumes, listed its main entries under esthetic and subpena. These were poor predictions on the part of some very good lexicographers. Neither American English nor British English has adopted the reformed spellings.

But for a time, the GPO Style Manual adopted them both, so we’re left with some anomalous spellings in our statute books. That all changed in 1984. Shades of George Orwell.

Further reading:
Garner’s Dictionary of Legal Usage 856 (3d ed. 2011).

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LawProse Lesson #200: Which is standard: “toward” or “towards”?

Which is standard: toward or towards?

      In American English, toward has been the usual form in print sources since about 1900. Many usage authorities since then have expressed a strong preference for toward, without the final -s.

The s-less form of the word is consistent with analogous (though less common) directional words such as cityward, downward, forward, outward, seaward, shoreward, and westward. All these forms are standard in British English as well as American English.

But British English makes an exception with towards: since the mid-16th century, the literary convention in Britain has always been to prefer the plus-s form of the word.

So your preference should depend on which of the two major varieties of English you’re using. If you’re American, make it toward. To do otherwise is editorially untoward.

Further reading:
Garner’s Modern American Usage (3d ed. 2009) (under “toward” and “Directional Words.”)

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Garner’s Usage Tip of the Day: load, n.; lode.

load, n.; lode.

Although they have similar etymologies, their meanings have fully diverged. “Load” (in its basic senses) means “a quantity that can be carried at one time” or, by extension, “a burden” {a load of work} {a load off my mind}. “Lode” carries the narrow meaning “a deposit of ore,” as well as the figurative sense “a rich source or supply.”

The correct phrase, then, is “mother lode” (= an abundant supply), not “mother load.” Although dozens of headline writers have used “mother load” as a pun (usually in reference to pregnant women), some have fallen into true error — e.g.:

o “She worked as a computer programmer, but kept plugging away at the music. And finally, she hit the mother load [read 'mother lode'].” Tony Kiss, “Messina Never Gave Up Dream of Music Career,” Asheville Citizen-Times, 3 Nov. 1996, at F1.

o “This site is a mother load [read 'mother lode'] of investing and financial planning information.” Ted Sickinger, “Web Review,” Kansas City Star, 6 Apr. 1997, at F23.

For information about the Language-Change index click here.

Quotation of the Day: “I am convinced that books written mainly to make money do not usually make much, and hence when somebody asks me if he should not write textbooks to make a lot of money, I am tempted to suggest that he get a nice cushy job as a baby sitter to a half dozen juvenile delinquent morons. He may live longer, and he will probably die wealthier.” Charlton Laird, And Gladly Teche 217 (1970).

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LawProse Lesson #199: Persuasive openers.

Persuasive openers.

     Almost all poorly written motions and briefs have one thing in common: they get off to a bad start. They have no clear, boldly expressed point. They’re mushy.

How to fix that problem? Say on page one—in plain English that anyone can understand—what problem the court is to resolve, how, and why.

Page one. No turning of the page necessary. No ad hominem. No slighting of opponents. Just cold, hard logic—with a couple of salient facts.

Impossible, you say? Not at all. But it takes a good deal of know-how and technique.

If you need examples, get the Advanced Legal Writing & Editing coursebook by attending sometime this spring: we’re coming to a city near you. If you can’t, check out the third edition of The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2014). You’ll find dozens of compelling examples there.

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Garner’s Usage Tip of the Day: literally.


“Literally” = (1) with truth to the letter; or (2) exactly; according to the strict sense of the word or words. “Literally” in the sense “truly, completely” is a slipshod extension — e.g.: “Behavioralists and postbehavioralists alike, literally or figuratively, learn what they know of science from the natural sciences, from the outside.” (Read: “Behavioralists and post-behavioralists alike learn what they know of science from the natural sciences, from the outside.”)

When used for “figuratively,” where “figuratively” would not ordinarily be used, “literally” is distorted beyond recognition — e.g.: “For Chip Sullivan, former club professional turned PGA Tour pro, life literally [delete 'literally'] has been turned upside down.” Randy King, “PGA Life Different Than [read 'From'] Being Home on the Range,” Roanoke Times & World News, 15 Jan. 1997, at B1.

A New Yorker cartoon that appeared on 28 Feb. 1977 (p. 54), by Lorenz, had this funny bit of dialogue: “Confound it, Hawkins, when I said I meant that literally, that was just a figure of speech.”

Although Webster’s 3rd International Dictionary (1961) acknowledged that “literally” could be used to mean “in effect, virtually,” it didn’t record the complete reversal in sense that led “literally” to mean “metaphorically” or “figuratively.” This reversal appears to have been first recognized in the early 1970s.

For information about the Language-Change Index click here.

Quotation of the Day: “Children who are born into homes of privilege, in the way of wealth, tradition, or education, become native speakers of what is popularly known as ‘good’ English; the linguist prefers to give it the non-committal name of ‘standard’ English. Less fortunate children become native speakers of ‘bad’ or ‘vulgar’ or, as the linguist prefers to call it, ‘non-standard’ English.” Leonard Bloomfield, Language 48 (1933).

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Garner’s Usage Tip of the Day: lip-sync, vb.; lip-synch.

lip-sync, vb.; lip-synch.

To lip-sync, of course, is to move one’s lips silently in synchronization with recorded vocals, whether one’s own or someone else’s.

Although the dictionaries are split between the “sync” and “synch” forms, the incontestable leader in print is “lip-sync” by a 2-to-1 ratio. But the agent noun is “lip-syncer,” pronounced anomalously with a hard “-c-”: /LiP-sink-uhr/.

Occasionally people misunderstand the phrase and write “lip-sing” e.g.: “‘This is where freshmen and seniors together do wacky performances and where teachers lip sing [read 'lip-sync'] in front of the students,’ Sullivan said.” Grace Camacho, “A Golden Birthday,” Orange County Register, 16 Nov. 2000, at 1.

For information about the Language-Change Index click here.

Quotation of the Day: “The basic teaching of our schools, in reading and writing, in standard language and composition, is dominated still by educationists who, knowing nothing about our language, waste years of every child’s time, and leave our community semi-literate.” Leonard Bloomfield, “Twenty-One Years of the Linguistic Society” (1946), in A Leonard Bloomfield Anthology 311, 314 (Charles F. Hockett ed., abridged ed. 1987).

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LawProse Lesson #198: Commas with coordinating conjunctions.

Commas with coordinating conjunctions.

Many writers struggle with whether to use a comma in a compound sentence whose clauses are joined by a coordinating conjunction (and, but, or, nor, for, yet, so). Although some examples may be tricky or complicated, most of the time some basic rules apply. Here’s a refresher on the fundamentals:

1. Use a comma when you’re joining two independent clauses (that is, two subject–verb constructions that can stand alone as complete sentences) with a coordinating conjunction.

Ex.: Matthew’s biological mother sued for custody, and his biological father (oddly enough) sued for support. [and used to join two complete sentences]
Ex.: Every math teacher at Ellis Middle School supports the use of calculators in the classroom, yet the principal won’t allow the students to use them. [same with yet]

2. Avoid using a comma before the second part of a compound predicate—a single subject plus two verb phrases. Use a comma only if omitting it creates an ambiguity or miscue.

Ex.: At his initial interrogation, the defendant refused to answer the officers’ questions and demanded to speak with his lawyer. [defendant is the subject of both refused and demanded]
Ex.: Susan saw the figure who lurked in the corner, and shrieked in surprise. [Susan is the subject of both saw and shrieked. The comma prevents a misreading: without the comma it sounds as though the figure shrieked.]

3. A comma is not necessary if the clauses are short and closely linked.

Ex.: Kendra went inside and I walked out.
Ex.: The band played loudly yet nobody could hear.

4. If either of the clauses is complex or contains an internal comma, a semicolon generally is the better choice.

Ex.: The owners agreed to pay overtime, improve safety measures, and provide additional sick days; and the strike finally ended.

5. Avoid using a comma after a coordinating conjunction that begins a sentence.

Ex.: But if the defendant had told his manager about the inventory shortage, the matter would not have ended up in court.
Ex.: And so the court granted the defendant’s motion for summary judgment.

Even if you memorize these guidelines, the comma can cause trouble. There’s also a subjective element involved—the writer’s style. Keep in mind the comma’s role as a guidepost to help readers get through your sentences smoothly and without miscues.

Further reading:
The Redbook: A Manual on Legal Style § 1.4, at 4–5, §§ 10.47–10.48, at 212–13 (3d ed. 2013).
Garner’s Modern American Usage 676 (3d ed. 2009).
The Chicago Manual of Style § 6.28, at 316–17, § 6.57, at 326 (16th ed. 2010).

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

Miscellaneous Entries.

know, through careless error, is sometimes written “now” — e.g.: “Gempler said he didn’t now [read 'know'] why the union produced the report.” Hannelore Sudermann, “Teamsters Attack Apple Industry Over Core Issues,” Spokesman-Rev. (Spokane), 23 July 1997, at A10.

knowledgeable. So spelled – not ‘knowledgable.’

known /nohn/ is often mispronounced /NOH-uhn/, as if it had two syllables.

kowtow (= to behave subserviently) is the standard spelling. “Kotow” is a variant form.

Ku Klux Klan. So spelled. The more thoroughly alliterative misspelling Klu Klux Klan is fairly common — e.g.: “Two grandsons . . . said that they had never heard him refer to the bombing or to his membership in the Klu Klux Klan [read 'Ku Klux Klan'].” David Lamb, “Jury Begins Deliberating ’63 Church Bombing Case,” L.A. Times, 22 May 2002, at A14.

kumquat (= a small citrus fruit resembling a tiny orange) is the standard spelling. “Cumquat” is a variant form.

For information about the Language-Change Index click here.

Quotation of the Day: “Simple prose is clear prose. And simple prose, if smooth and rhythmical, is readable prose. Let your ideas alone do the impressing. If they look banal to you, there’s only one remedy: upgrade them. Don’t try to camouflage their weakness with razzle-dazzle rhetoric. You’ll razzle-dazzle yourself right into a bog of bull.” John R. Trimble, Writing with Style 30 (2d ed. 2000).

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Garner’s Usage Tip of the Day: like (2).

like (2).
Today: “Like” as a Conjunction.

In traditional usage, “like” is a preposition that governs nouns and noun phrases, not a conjunction that governs verbs or clauses. Its function is adjectival, not adverbial. Hence one does not write, properly, “The story ended like it began,” but “The story ended as it began.” If we change the verbs to nouns, “like” is correct: “The story’s ending was like its beginning.” Frequently, then, “like” needs to be replaced by the proper conjunction “as” (or “as if”) — e.g.: “Star-crossed lovers, they are — like [read 'as'] in the play — sprung from two households, both alike in dignity.” Alisa Valdes, “Romeo & Juliet,” Boston Globe, 17 Oct. 1995, at 59.

This relatively simple precept is generally observed in writing, but has been increasingly flouted in American speech. Examples of “like” used conjunctively can be found throughout the Middle English period; but the usage was widely considered nonstandard from the 17th through the mid-20th centuries. Then defenders came along, raising it to the level of a standard casualism — e.g.:

o “The use of ‘like’ as a conjunction is a usage on the borderline of acceptability in American English.” Robert C. Pooley, Teaching English Usage 153 (1946).

o “Anyone who complains that its use as a conjunction is a corruption introduced by Winston cigarettes ought, in all fairness, to explain how Shakespeare, Keats, and the translators of the Authorized Version of the Bible came to be in the employ of the R.J. Reynolds Tobacco Company.” Bergen Evans, “Grammar for Today,” Atlantic Monthly, Mar. 1960, at 80, 81. (The reference is to the old ad jingle, “Winston tastes good like a cigarette should.”)

Although this use of “like” can no longer be considered an outright solecism, as it once was, it hasn’t moved far from the borderline of acceptability. It is acceptable casual English; it isn’t yet in the category of unimpeachable English.

Next: A Few More Points.

For more information about the Language-Change index click here.
Quotation of the Day: “The literary peculiarities of any given period of a language are, for the most part, simply fossilized colloquialisms of an earlier period.” Henry Sweet, The History of Language 74 (1900).

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Garner’s Usage Tip of the Day: like (1).

like (1).

Today: As a Preposition.

The object of a preposition should be in the objective case — you say “They are very much like us,” not “They are very much like we.” Apart from the second person (in which the form remains the same), writers often get confused on this point, as with first-person pronouns — e.g.: “She, like I [read 'me'], instantly fell in love with his beautiful face, huge blue eyes, unusually soft fur, and gentle disposition.” Patricia Livingston, “New Cat Forced Out but Finds Nice Home,” Times-Picayune (New Orleans), 3 Feb. 2000, at B11. (A suggested improvement: “Like me, she instantly fell . . . .”)

The same problem afflicts the third-person pronouns — e.g.:

o “We, like they [read 'them'], thought we were the coolest things on the floor.” Rochelle Riley, “Reunion Means Remembering, Rejoicing,” Fla. Today, 22 Dec. 1998, at A12. (A suggested improvement: “Like them, we thought . . . .”)

o “And we, like they [read 'them'], do so at our peril.” Mike Pence, “Explaining the Appeal of Titanic,” Saturday Evening Post, 1 May 1999, at 40. (A suggested improvement: “And like them, we do so at our peril.”)

As the parenthetical revisions suggest, the most natural solution is to open the clause with “like” and keep the subject and verb together {Like me, he agrees}. The awkwardness in the original results from the odd pairing of a nominative and an objective pronoun in what looks like a parallel construction {He, like me, agrees}.

Next: “Like” as a Conjunction.

For information about the Language-Change Index click here.

Quotation of the Day: “The scholar-critic, if he is to succeed in his profession, must generally speaking be more critic than scholar. If you cannot tell good literature from bad, or the better elements in a poem from the less good, your learning is likely to be wasted.” F.W. Bateson, The Scholar-Critic 25 (1972).

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