Legal Writing

Common Confusing Usage Rules

Some rules bear repeating: fewer and less, affect and effect, correspond to and correspond with, different from and different than, and oral and verbal are just a few.

by Mary Barnard Ray

In upstate New York, beside a spectacular mountain lake, sits Mohonk Mountain House, a Victorian resort with a dress-for-dinner code and a strict Victorian maitre d' to enforce that code. I still remember, although it has been a decade since that time, walking down the long hallway toward that maitre d's ramrod form, two youngsters in tow, watching for his solemn nod and slight turning of the body, which meant we had met with his approval and could enter for dinner.

Whenever I prepare to talk about proper word usage, I remember that maitre d'. I try to assume his demeanor so that I can, with grace and unerring dignity, explain the rules. Impossible. I remain the uncertain mother shepherding her youngsters through the door. So it is that, with all due humility, I approach this month's topic: some of the most common confusing usage rules.

Fewer and Less

Fewer is proper when referring to items viewed as individual units.

"Stagnant salaries and creeping inflation leave workers with fewer dollars to spend."

Less refers to a concept, rather than individual units.

"Increasing taxes leave workers with less money for discretionary purchases."

Affect and Effect

These two words can confuse anyone. Fortunately, in legal writing effect is usually the correct noun, while affect is the correct verb.

Effect as a noun means an inevitable result of something or, in the phrase in effect, it means in operation. These are the two meanings usually intended in legal writing:

"This law went into effect in January 1999."

"The effect of this new law has not been what was expected."

Affect as a noun means a feeling, and is more common in writing related to psychology.
Affect as a verb means to produce an effect upon something. This is the meaning usually needed in legal writing.

"Seeing this tragedy affected the plaintiff's ability to concentrate, ultimately leading to his loss of employment."

Occasionally legal writing uses affect to mean to pretend, as in the following sentence.

"Although the plaintiff affected feelings of sadness, in fact he benefited from the tragedy."

Effect as a verb means to cause the existence of something, which is less frequently needed in legal writing, usually in statements of the writer's opinion, as in law review articles.

"This shift in the burden of proof would effect profound changes in the outcome of these liability cases."

Correspond To and Correspond With

People correspond with other people. Ideas or things correspond to other things.

"The sisters corresponded with the company for six months, trying to explain the situation."

"The increase in the average social worker's caseload corresponds to this change in the sentencing laws."

Different From and Different Than

Mary Barnard Ray is a legal writing lecturer and director of the Legal Writing Individualized Instruction Services at the U.W. Law School. Her publications include two coauthored legal writing books, Getting It Right and Getting It Written and Beyond the Basics, published by West Publishing Co. If you have a writing problem that you can't resolve, email or send your question to Ms. Ray, c/o Wisconsin Lawyer, State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158. Your question and Ms. Ray's response will be published in this column. Readers who object to their names being mentioned should state so in their letters.

Use different from, because it is always considered correct.

"Chocolate differs from cocoa."

"Writing novels requires a process substantially different from that needed for writing legal briefs."

Different than is considered correct in some cases and by some sources, but it is likely that your reader will not be aware of those exceptions. But, if you do want to use different than, several sources say it is permitted when it is a shortened version of some longer phrase that would be awkward to use, such as different than the way that is within, as in the following example.

"Use no word different than your understanding."

Since the phrase will probably still sound awkward, try instead to rephrase it.

"Use no word without understanding its meaning."

Oral and Verbal

Legal writers usually need to use oral. Although mentioned in an earlier column, this common confusion deserves further explanation. Oral describes something spoken, in contrast to something written. This is the meaning most legal writers want to communicate.

"This [written] contract supercedes any oral agreements made between the parties."

Verbal describes something expressed in words, which can be oral or written. Thus verbal is accurately used when contrasting verbal and nonverbal communication,

"The taxi driver punctuated his verbal comments with nonverbal gestures."

Now that you know how to use these terms accurately, you can practice in your next documents and celebrate any solemn nods of approval that come your way.

Wisconsin Lawyer