Oregon State Bar Bulletin — NOVEMBER 2011
The Legal Writer
Spell Czech:
Amusing Mistakes Your Computer Won't Catch
By Suzanne E. Rowe

This article is about 98 percent pure fun. It’s a collection of errors that your computer’s spell checker won’t catch for you. Most of these errors appeared in professional papers ranging from court filings to office memos. Oops.

I’ve already written about how to proof papers to avoid these problems (“Perfect Proofing, December2006), so the other two percent of the article is just a gentle reminder to proof more carefully, knowing the problems you might create if you don’t. Some of the problems will be your own creations, simply the result of typing the wrong word. Others will result when you write a non-word, and a spell checker helpfully supplies a real word, just not the one you meant. Oops, again.

Miss Steaks with Food
Writing professional documents while hungry can be dangerous. Your fingers might subliminally find the letters that would satisfy your culinary longings, resulting in interesting legal concepts like these:

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

You’re sitting at your desk, stomach growling, as your colleague walks past with Chinese take-out from your favorite restaurant. Your mind wanders away from the “willful and wanton” conduct at issue in your brief, and suddenly you’re writing about wontons.

“The defendant exercised control over the plaintiff by marinating a right to substitute its own worker for the plaintiff.”

You’re thinking of the great dinner party you’re hosting that night. You imagine the marinating chicken in your refrigerator, with fresh herbs from the farmers’ market. Did you mean the defendant was “mandating” substitution rights? Or something else?

“The state was able to prove a delectable amount of cocaine was present on the premises.”

Your mind has now wandered to the chocolate decadence you’ll serve as dessert. The “detectable” quantity of drugs in your case seems unimportant.

“When the plaintiff could not perform her work obligations, the defendant fried her.”

Oh, for some fish and chips!

On a Peel
We all know that the standard of review is important in appellate work. But under deadline pressures, you might type faster than you think.

“The basis of this appeal is abusive discretion.”

A spell checker will think nothing is amiss with a standard of review called “abusive discretion.” But neither the abusive trial judge nor the discreet appellate panel is likely to grant your request, even though “abuse of discretion” isn’t so very different, right?

“Defendant requests a new trial before a fair and impractical jury.”

Yes, it’s true. I’ve heard a brief was filed in a Michigan court that actually asked for a new trial “before a fair and impractical jury.” Maybe the claim was so bad that an “impartial” jury would never have supported the defendant’s assertion? Maybe this wasn’t an error because only an “impractical” jury would have understood the defendant’s position? (I don’t know how the case turned out, but I wouldn’t have put money on the defendant.)

“The legislative history shows that this statute was intended to ensure patients received appropriate medical screening if they were interred in an emergency room.”

Legislative history is important, especially in appellate arguments where the statute’s intent is unclear. But this writer’s intent was especially blurry; I’m not even completely sure which word was intended. Maybe the screening was assured for all patients who “entered” the emergency room (making “were” unnecessary). Certainly, we’ll all agree that hospital staff should examine patients carefully before burying them beneath the floorboards.

Spell Czech
The following examples continue the trend of using perfectly fine, correctly spelled words. Of coarse, the words are used incorrectly. (And of course, that makes for “coarse” writing.)

“Late fees depend on whether the linens were returned during regular or peek season.”

Maybe this mistake wouldn’t have been so funny if the late fees were for bulldozers. But linens coming back during “peek” season — rather than “peak” season — makes me laugh.

“The plaintiff defiantly wants to continue this case to a later date to provide more time for discovery.”

The plaintiff might be “defiant,” but expressing that attitude might not be your best tactic. Expressing strongly held views “definitely” might bring better results.

“The patient received desperate treatment from the hospital’s emergency room staff.”

Maybe so, but I don’t know of any laws against “desperate” treatment as long as it’s not negligent. I do know of a federal statute that requires hospitals to provide similar care to patients with similar symptoms, so a claim of “disparate” treatment might support a cause of action.

Two Bad to Right
Some mistakes are just too bad to write in a professional magazine, even though they unfortunately appear in professional documents. So I’ll just write what the author intended, and let you use your imagination (with hints) to think what the disastrous results might have been.

“The dam flooding was disastrous for the local economy.”

(What if the irate lawyer had added a letter at the end of “dam”?)

“The shell corporation was set up off-shore for tax purposes.”

(Would the tax implications still have applied if the “shell” didn’t have an “s”? How far off shore would that corporation have been? Just wondering.)

“There was a shift in the coastline that was caused by erosion after numerous hurricanes.”

(What if the “shift” were missing an “f”?)

“The public policy concerns outweigh all other considerations.”

(What if the “public” lacked an “l”?)

Quick Revue
Doubting that more than two readers will actually go back to my 2006 article, here are some basic tips for perfect proofing:

1. Print the document and proof the paper version.

2. Read the document aloud.

3. Read the document backwards.

4. Use a colored sheet of paper to keep your eyes focused on a single line of text.

5. Use “find” to locate words you typically misspell.

6. Take breaks so that your proofing eyes stay fresh.

7. Proof in bits, rather than tackling the whole document at once.

8. Start in the middle so that it gets fresh attention, too.

9. Highlight citations and then edit them.

10. Find a friend who will proof the document, too.

Yes, I left out the tip about using spell checkers because those won’t help for the problems noted in this article.

By the way, if you personally want to increase to three the number of readers who review “Perfect Proofing,” it’s available online in the Bulletin archives at www.osbar.org/publications/bulletin/06dec/writer.html. Also, the website of the Legal Research and Writing Program at the University of Oregon links to all columns of The OSB Legal Writer at www.uoregon.edu/lrw/osblegalwriter/.

Edit carefully.

I have collected these spelling errors for years, solely for my own amusement. I credit the attorneys, judges, colleagues and students who wrote them, even though I don’t remember who you are. Please note that, while I do make spelling mistakes, mine are rarely interesting or humerus.

Suzanne E. Rowe is the James L. and Irene R. Hershner Professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program.

An archive of  The Legal Writer articles is available here.

© 2011 Suzanne E. Rowe

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