Oregon State Bar Bulletin — APRIL 2007
The Legal Writer
Word Choices: Pairs that Puzzle
By Suzanne E. Rowe

Only 11 people in the state know the difference between which and that. If you are working for one of them, as I once did, you need to know the difference between the two words. While we’re being persnickety about words, let’s cover some other pairs that stump most of us, most of the time.

Which or That?
Although the distinction between which and that is about to go the way of the dodo, the distinction does have a difference, which we curmudgeons guard faithfully.

Which is nonrestrictive, which means it adds information that is interesting but not critical to the meaning of the sentence.

That is restrictive. The information following that is critical; omitting the information may confuse the meaning of the sentence.

Example 1: The company, which has its headquarters in Washington, will declare bankruptcy.

Example 2: The company that has its headquarters in Washington will declare bankruptcy.

In the first example, only one company is at issue, and it’s declaring bankruptcy. The writer adds the fact that the company has headquarters in Washington. The addition is extra information that the reader might find interesting. In the second example, several companies are being discussed. The one that has its headquarters in Washington is going under, but the ones in Oregon and Idaho are doing fine.

Example 3: The judge will read the briefs, which are good.

Example 4: The judge will read the briefs that are good.

In example 3, all of the briefs will be read by the judge. In the last example, only the good briefs get that honor. The mediocre briefs will be summarized by a law clerk.

Careful readers will note that the which clause is set off from the sentence by commas. As the distinction between these words diminishes, and which and that come to be used interchangeably, only the tiny comma will tell the reader whether the information is restrictive or not. See why we curmudgeons are guarding the difference so faithfully?

That or Who?
That refers to things, as shown in the examples above. Who refers to people. Most mistakes come when that is used to refer to people.

Incorrect: I spoke to three attorneys that said my claim was a winner.

Correct: I spoke to three attorneys who said my claim was a winner.

Who or Whom?
Who is a pronoun, which means it can be the subject of a sentence. For example: Who will argue the motion next Monday?

Whom is often seen as the object of a preposition. One famous example appears in Ernest Hemingway’s 1940 novel For Whom the Bell Tolls. In that title, whom is the object of the preposition for. Grammar curmudgeons cringe at the thought of calling the book Who Does the Bell Toll For, both because the opening who is
incorrect and because the title ends with a preposition.

Whom can also be the object of the verb, as in "Whom did you call?" Technically, the question’s subject is "you," the verb is "did call," and "whom" is the object of the verb. Alas, modern usage has made whom almost extinct, and most of us now ask "Who did you call?" That sounds fine in daily discourse, but consider
following the formal rule when writing formal documents.

Imply or Infer?
Writers imply; readers infer. For example: The demand letter implied that the lawyer would stop at nothing to win. The elderly client read the letter and inferred that her worthless nephew needed more money.

For those of us who need mnemonic devices to remember tricky information, here are two. First, note the connection between imply and implication. Writers imply to give you information implicitly. Second (and, yes, I’m digging deep here, but it works), focus on the "f" in infer. Readers infer by Finding Facts in Foggy phrases. (In case you’ve had a long day, there’s no "f" in imply, just in infer.)

Effect or Affect?
Most often, we use effect as a noun and affect as a verb. For example: Business owners quickly felt the effect of the new regulation. They knew its restriction would affect their profits.

Again, if mnemonics work for you, try this: Affect and alter both begin with an "a"; effect and end result both begin with an "e."

Less often, the two words switch roles and meanings. The verb to effect means to bring about, as in "to effect change."
The noun affect refers to personal characteristics, as in "his arrogant affect was annoying."

Feel v. Hold?
When discussing a case, remember that courts can hold, find, state, decide and rule. But courts are entities that do not have emotions. While the individual judges may feel or believe, the courts themselves do not. Moreover, courts are not adversaries, so they do not argue or contend.

Correct: The trial court held that the claim had no merit.

Correct: The judge’s face suggested that he felt sympathetic toward the

Incorrect: The court argued that the statute did not apply.

Amount or Number?
Amount refers to a thing that can’t be neatly subdivided (like milk); number refers to things that exist in countable units (like glasses). Many of us simply remember the following example: A smaller number of glasses can hold a smaller amount
of milk.

Incorrect: A smaller amount of citizens appeared for this week’s jury pool.

Citizens can be counted, so the correct usage would be "a smaller number
of citizens."

Less or Fewer?
Less is used for things that can’t be counted; fewer is used for countable items. To continue the example above: Fewer glasses hold less milk. (While we’re thinking of food, some of us curmudgeons are irritated by grocery checkout counters that are available for patrons with "10 items or less." If the items are countable, the patron should have "10 or fewer.")

This pair is likely to trip you up when you use less to refer to specific items.

Incorrect: This brief has less pages than the reply brief.

Correct: This brief has fewer pages than the reply brief.

Like or As?
When comparing similar things, use like. You can compare your client to another person, for example the human plaintiff in a case. "Our client is like the plaintiff in the leading case." When comparing your client to a situation, use as instead: "As in the leading case, my client should win." In that instance, the case is an example, not a comparison.

As with many confusing word pairs, the difficulty arises because our informal speech doesn’t match formal grammar rules. Your client may testify, "He kept the money like everyone knew he would." But your paraphrase in the brief would argue that the defendant "kept the money, as everyone knew he would."

Former or Latter?
Most of us know that former refers to the first of a pair, while latter refers to the second of a pair. These words work only with pairs. If you have more than two items to compare, consider using ordinal numbers (first, second, third) or other alternatives instead of former and latter.


The student weighed the benefits of summer school and an externship. The former would help her prepare to pass the bar, but the latter would give her practical experience.

The paralegal considered continuing work, attending law school or writing a novel. The last (not the latter) was the most appealing despite the financial risks.

Then or Than?
Let’s end with one familiar pair that we all know but frequently confuse when typing. Then introduces a result, while than introduces a comparison.

Incorrect: Her offer was higher then his.

Incorrect: If he raises his offer, than they may be able to reach a compromise.

Spell check won’t care which word you use — then or than. The curmudgeon reading your paper will.

Suzanne E. Rowe is an associate professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program. She is grateful to Amy Nuetzman of Oregon’s Academic Learning Services for comments on this article.

© 2007 Suzanne E. Rowe

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