Words Used and Abused

AuthorNeil Guthrie
chapter two
d sed and Abuse
Writer is an old Scottish term for “solicitor,” and the word is well-
chosen. The careful lawyer thinks about what words mean and how
they will be interpreted or may be misinterpreted. And yet, mod-
ern lawyers frequently misuse the wordhoard that is available to
them, whether this is through force of (unthinking) habit, imprecise
thinking, confusion, or simple error.
The meanings of words change over time.
A nice example is condescending, which not so long ago meant
something along the lines of “being gracious to the underlings” (the
King James Bible, Dr Johnson, and Lord Byron use it in this sense).
Since the later nineteenth century, it has meant “patronising” (in a
bad way; that also once had a neutral or even positive connotation).
Another is meticulous, a quality we now seek in new legal hires, but
a word which used to mean “timid” or “fearful,” then “overly worried
about trif‌les” before taking on its current meaning of “detail-oriented.
Note as well that many superlatives we use colloquially to describe
things we love used to have rather dif‌ferent meanings: awesome, fan-
tastic, incredible, sick, terrif‌ic, tremendous, unbelievable.
Only a pedant would cling to the old meanings; and we must rec-
ognize that language is not of marmoreal permanence.
What is dif‌ferent is a misuse or error that sticks, as opposed to
a gradual shift in meaning or tone. I could care less is an example.
Guthrie's Guide to Better Legal Writing
It’s just a lazy shortening of I couldn’t care less, and the dif‌ference in
meaning is worth preserving.
When usage is changing, we should hang on to an older meaning
where the new one lacks precision, logic, or truth.
As events in recent years have repeatedly shown, words and
truth matter; they should not be distorted to mean their Orwellian
1) Gruesome Twosomes
What do I mean by this? These are pairs of words that lawyers
routinely use together, but would be better not to. These pairs may
once have had distinct meanings (in the late Middle Ages?), but now
really don’t.
And even in the Middle Ages, they may not have: many of these
“coupled synonyms” (as the late Richard Wydick called them) join
an English word with its (Old) French equivalent, in a belt-and-
suspenders manoeuvre — for example, like free and clear, which
combines the synonymous Old English freo and Old French cler.1
Further examples will be discussed below.
a) Redundancy
Linguistic redundancy, not the employment variety. In the linguistic
category, there are both legal and non-legal redundancies.
The legal
Legalese is replete with pairs of words that mean the same thing and
therefore don’t need to be used together (except to create a leaden,
lawyerly ef‌fect):
zany and all [any covers one or more, so and all adds nothing]
zcease and desist [plain old stop will do just f‌ine]
1 Richard Wydick & Amy E Sloan, Plain English for Lawyers, 6th ed (Durham, NC:
Carolina Academic Press, 2019) at 18.
Chapter Two: Words Used and Abused
zclosest and most real connection2
zfull and complete [same comment]
zif and when
zno force or ef‌fect
znull and void [how about of no ef‌fect?]
zone and the same
zplain and obvious [synonymous]
zsave and except [one or the other, not both]
zseparate and apart [except as a term of art in family law]
zunless and until [this drives me crazy]
The following expressions require a little more explanation.
To conspire necessarily involves combination or agreement with at
least one other person to do something wrong. Co– and con– come
from the same Latin root indicating joint action, so you need only
one of them.
Yes, the OED cites examples of co-conspirator from the 1860s, but
they are in a list of co– words that are described as either rare or
Co-conspirator, as used today, is an ugly and unnecessary cre-
ation of the Watergate years. Regrettably, it occurs in Canada in both
the federal Competition Act and the Military Rules of Evidence.
  
A case is on point or it isn’t, and you wouldn’t ever say that one was
indirectly on point.
: In England, it is usual to say that a legal authority is in point,
not on point. North Americans do say a case in point, but typically (I
think) in non-legal usage. On point has entered the millennial lexicon
as a way of saying something nails it, especially in relation to fashion
or grooming.
2 I am grateful to my friend and colleague Angela Swan for reminding me of this

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