|Oregon State Bar Bulletin APRIL 2009
The typical response to Word Choices II began this way. "Nice job, but you omitted my favorite…." So by popular demand, we continue our review of frequently confused words.
This list is heavy on verbs. Some are spelled similarly, but most aren’t (and some don’t look alike at all). Thus, my previous, optimistic certainty that many of our mistakes were merely overlooked typos isn’t quite so optimistic or certain.
There are many reasons for the following mistakes. Perhaps we’ve adopted in writing a word that sounds fine in conversation, but isn’t fine in a formal document (e.g., lie v. lay). Or, we’ve picked up language that’s familiar in our families, but not accepted by writing curmudgeons (e.g., take v. bring). Sometimes, a beloved third grade teacher used a word incorrectly, which ingrained that usage in our little brains forever. Well, almost forever.
Verbs at Court
Argue/Contend vs. Hold/Decide
The problem with these verbs is that we forget who does what. Lawyers argue and contend because they’re pressing their clients’ interests. Judges hold and decide because they’re the ones with the power to determine the outcome. They don’t have to argue or contend. Judges also get to state, imply and conclude. Similarly, judicial opinions don’t argue or contend; rather they hold, decide, etc.
Find vs. Hold
While judges get to both find and hold, they do so on different points. Judges — and often juries — find the facts of a case. Judges hold when they reach their conclusions on cases before them.
Typically, we use these verbs in the past tense. For example, "In a bench trial, the judge found that the defendants had possessed the property and treated it as their own for 25 years, erecting a fence to keep neighbors out. The court held that the defendants owned the land through adverse possession."
Reverse vs. Overrule
I include this pair for my first-year students (loyal, if coerced readers): an appellate court may reverse the decision of a lower court in a case involving the same set of litigants. This decision means that the winner below is now the loser. Years later, another court, deciding a different case between different litigants, may overrule the earlier decision. This means that no lawyer should follow that earlier case, but it doesn’t change the winners and losers for the earlier litigants.
Verbs at Large
Lie vs. Lay
These verbs are confusing because their forms overlap. The past tense of lie is lay. The past participles of lie and lay are, respectively, lain (which most of us ignore) and laid (which most of us assume works just fine for both verbs). If you’re not already overwhelmed, remember that the past participle follows a form of to have; it’s used to show something that happened before the current story line. For example, "I had returned the book to the library before I received the overdue notice."
To set the record straight, here are the present, past and past participle forms of the two verbs, along with their definitions.
Lie, lay, lain — to assume a reclining position
Lay, laid, laid — to put something down
So, whenever you take a nap, you lie down. If you took a nap yesterday, you would say that you lay down at three o’clock. To show how long the nap lasted and why it ended, you might say you had lain there for just 15 minutes when the phone rang.
Let’s try the other set. You lay your keys on the counter every evening when you come home from work. You exclaim the next morning that you are sure you laid the keys there, although they seem to have disappeared. Despite having laid the keys on the counter nightly, you frequently cannot find them in the morning.
Might vs. May
My research assistants pointed out that may sometimes suggests permission (e.g., the legislature may do something) when none is intended (e.g., the legislature might do something). At first, I didn’t see the problem, but now it pops up all over. So I went digging for clarity.
Most of my favorite sources say the two words are interchangeable, although they do note unhelpfully that might is technically the past tense of may. The Chicago Manual of Style supports the concern of my detail-oriented research assistants, stating that may "expresses what is possible, is factual, or could be factual," while might "suggests something that is uncertain, hypothetical, or contrary to fact."
My advice is to consider whether your reader may (or might) be confused. If so, rephrase the sentence to avoid ambiguity.
Bring vs. Take
Here’s a pair that can cause trouble in more than one language. (Anyone speak Spanish? I’m forever confusing traer and llevar.)
Experts distinguish the two by noting where the action is directed. Action directed toward the focus location uses bring; action directed away from that location uses take. For example, my husband brings home groceries; he takes the recycling bins to the street.
I like the following jingle, suggested by a reader: "bring is to take as come is to go." My husband brings home groceries because that’s where he’s coming. He takes out the recycling bin because he has to go outside to do so. Similarly, when I talk to you about a dinner invitation, I say I’ll bring a bottle of wine to dinner at your house if I can take home some leftovers of your secret recipe biscuits. Your house is the focus, so the action is directed to or from your perspective. I come to your house bringing wine; I go away afterward taking biscuits.
Here’s a final example: You can’t sit in your office and say to a colleague, "I’m going to bring my laptop home." You’re going home from the office, so you will take your laptop with you. But when I call my husband and say, "I’m bringing my laptop home," that’s okay because I’m coming home. (Well, it’s not okay because it means I’m working all the time, but the sentence is grammatically correct.)
Was vs. Were
Only a few of us know what the subjunctive mood is. And even fewer care whether its use is safely guarded for future generations of English speakers or goes the way of the passenger pigeon.
The simplest explanation I’ve heard is that the subjunctive contradicts reality. Consider this sentence: "If I were in Florida, I’d spend the weekend at the beach." The sentence suggests that I’m freezing in Oregon, with no hope of soaking up rays on Crescent Beach. The "were" sounds a bit funny because no one would say of a prior trip, "I were in Florida." Instead, the simple past tense would be "I was in Florida." But, alas, I’m not now, and the subjunctive verb shows the reader the difference between fact and fantasy.
The subjunctive mood doesn’t just contradict reality, though it generally conveys a sense of uncertainty. A subjunctive verb can express desire, state a requirement or offer a suggestion. Here are a few examples of those uses:
His partners wish he were more conscientious in keeping track of his billable hours.
It’s important that lawyers be aware of local court rules.
The letter suggests that she come immediately.
The fortunate part of the subjunctive — apart from the fact that so few people care about it — is that its form is different from the more comfortable indicative form of most verbs only in third person singular (i.e., he, she, you). The verb "to be" goes crazy in subjunctive, however, as shown in the examples above and in some common expressions: "if I were you," "far be it from me," and "be that as it may."
Thanks to the readers who made suggestions for this article. Word Choices IV is already in the works; let me know which pairs leave you puzzled.
The New Oxford American Dictionary
(2d ed. 2005).
Lynn Bahrych & Marjorie Dick Rombauer, Legal Writing in a Nutshell (3d ed. 2003).
The Chicago Manual of Style (15th ed. 2003).
ABOUT THE AUTHOR
Suzanne E. Rowe is an associate professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program. As the Luvaas Faculty Fellow for 2008-2009, she is grateful to the Luvaas Faculty Fellowship Endowment Fund for support of her articles in The Legal Writer.
© 2009 Suzanne E. Rowe