Word Usage and Conventions
A / An
The indefinite article "a" is used before words that begin with a consonant, words with a pronounced h and a long u sound (eu) or with words such as "one."
a historical; a habitual; a union; a Eucharist; a one-time deal
"An" is used before words beginning with a vowel or an unsounded "h." an eagle; an appellate judgment; an hour; an heir; an honor
The article that precedes an acronym or initialism depends on how the abbreviation reads: If it is pronounced beginning with a vowel sound, then use "an." If it is pronounced beginning with a consonant sound, then use "a." For examples, see page 75.
A / From a
"Defendant appeals a judgment * * *."
"Defendant appeals from a judgment * * *."
Either is correct. If the authoring judge has a preference, then use the construction that the judge prefers.
Absent / Without
"Without" or "in the absence of" is preferred.
Without any arguments against doing so, the trial court dismissed the jury.
or
In the absence of any arguments against doing so, the trial court dismissed the jury.
NOT
Absent any arguments against doing so, the trial court dismissed the jury.
Administrative Law Judge / Hearing Officer
In Oregon since 2003, the title "administrative law judge" is now used.
Affect / Effect
"Affect" is a verb that means to have an influence on, to bring about a change in, or to touch or move the emotions of.
The trial was affected by the constant media attention.
"Effect" is most commonly used as a noun, but it can also be used as a verb. As a noun it means something that is brought about by a cause or agent; a result or outcome. As a verb it means to achieve a result, to execute, or to cause to occur.
Noun: Her closing argument had no effect on the jury's final decision.
Verb: The attorney was unable to effect any change in the system.
Allow / Grant
Typically, allow is used to refer to a ruling on a petition.
Grant is used to refer to a ruling on a motion.
Alternate / Alternative
"Alternate" means every other or substitute, while "alternative" means providing a choice.
She takes early lunch during alternate weeks.
An alternative approach is to take no lunch at all.
Although / While
"Although" more properly introduces an aside; "while" is more properly used only in a temporal sense.
Although many people disagree, Ian thinks that coffee is good for you.
While I was in Paris, I decided to become a can can dancer.
Amicus Curiae / Amici Curiae (Friend/s of the Court)
J. Marcus Cool, of Cool, Hand and Luke, Portland, filed an amicus curiae brief on behalf of American Theatre Institute.
Sherman Potter, of Potter & Daughter, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Tempest in a Teapot Association.
J. Marcus Cool, of Cool, Hand and Luke, Portland, filed an amici curiae brief on behalf of American Theatre Institute, Americans for Good Theatre Association, and Oregon Actors Association.
Sherman Potter, of Potter & Daughter, P.C., Portland, filed a brief on behalf of amici curiae Oregon Tempest in a Teapot Association, Oregonians-R-Us, Inc., and We are the World Foundation.
NOTE: The number of parties, not the number of briefs, dictates the use of singular or plural. It is acceptable to use amicus curiae or amici curiae for the first reference and amicus or amici thereafter.
Appeal / Review
A party "appeals" from a lower court as of right, but a party "seeks review" in court of the action of an administrative agency or when the higher court has discretion whether to take the case. The related documents are called "notice of appeal" and "petition for judicial review" (in the case of an administrative proceeding) or "petition for review" (in the case of a petition to the Oregon Supreme Court).
Within an administrative system, the correct term is "appeal." For example, a party may "appeal" to the Workers' Compensation Board from the order of an ALJ.
Appeals / Appeals from
Defendant appeals a judgment of conviction.
Defendant appeals from a judgment.
Either one is acceptable.
Because / Since
"Because" explains why; "since" expresses time.
Because he attended seven basketball games, David had a busy weekend.
Since moving to a window office, John has been much more productive.
Between / Among
As a general rule, "between" is used when the sentence involves two things or when expressing a close relationship of any number of individual things.
The jury had to decide between the death penalty and life in prison.
His time was divided between school, sports, and work.
"Among" is used when the sentence involves more than two things.
His present conviction was just one among many.
Her estate was divided among all her relatives.
The above rule expresses the distinction between "between" and "among" in a simplistic manner. Here are a couple of specific rules: "Between" is used to express one-to-one relations of many things, e.g., a treaty between four powers. "Among" is used to express collective and undefined relations, e.g., She was the best among all the attorneys.
Circuit Court / Trial Court
When referring to the lower court in a particular case, use "trial court." Use "circuit court" when referring to circuit courts generally ("The legislature created jurisdiction in the circuit court.") or to general propositions about particular courts ("Post-certification challenges to the constitutionality of initiative measures generally must be filed in Marion County Circuit Court."). Also, use "circuit court," not "trial court," in tag lines. See also Post-Conviction Cases, page 104.
Cite / Cite to
"Cite to" is redundant; "cite" is preferred.
In Smith, the court cited ORAP 5.45.
NOT
In Smith, the court cited to ORAP 5.45.
Compose / Comprise
The parts compose the whole; the whole comprises the parts.
The whole is composed of the parts; the parts comprise the whole.
The most common error is using "comprise" when "compose" is correct:
Incorrect: | Judge Haselton, Judge Armstrong, and Judge Duncan comprise Department One. |
Correct: | Judge Haselton, Judge Armstrong, and Judge Duncan compose Department One. |
Incorrect: | Department One is comprised of Judge Haselton, Judge Armstrong, and Judge Duncan. |
Correct: | Department One is composed of Judge Haselton, Judge Armstrong, and Judge Duncan. |
Correct: | Department One comprises Judge Haselton, Judge Armstrong, and Judge Duncan. |
Consecutively to / Concurrently with
A consecutive sentence is served "consecutively to" another sentence:
The trial court ordered that defendant's 12-month sentence under the sentenc-ing guidelines for theft be served consecutively to his Measure 11 sentences.
A concurrent sentence is served "concurrently with" another sentence:
The trial court imposed aggregated sentences totaling 36 months, all of which were to be served concurrently with the burglary sentences.
Consistent With / Consistently With
For adverbial uses, "consistently with" (that is, "in a manner consistent with") is correct.
The court decided the case consistently with its precedent. (in a manner con-sistent with its precedent)
Criterion / Criteria
"Criteria" is plural; accordingly, it may not be used when discussing only one factor.
The court primarily relied on the first criterion.
Datum / Data
"Data" is plural and takes a plural verb.
The data support plaintiff's theory.
Decree / Judgment
Historically, equitable proceedings resulted in "decrees," while legal proceedings resulted in "judgments." The distinction between law and equity was abolished in Oregon in 1980. See ORCP 2. The final determination in all civil actions is now titled a "judgment." Some statutes still use the term "decree," and occasionally so do trial courts. The appellate courts, however, will substitute the word "judgment." E.g., Webber v. Olsen, 330 Or 189, 192 n 1, 998 P2d 666 (2000); State ex rel Olson v. Renda, 171 Or App 713, 715 n 3, 17 P3d 514 (2000).
Disinterested / Uninterested
"Disinterested" means lacking a stake in an outcome. "Uninterested" means bored.
The judge appointed a disinterested arbitrator.
Driver's License / Driving Privileges
Different statutes use different terms; they are not interchangeable. For example, when a person fails or refuses a breath test, the Oregon Department of Transportation suspends the person's "driving privileges," not his or her "license." Check the statute at issue for the correct term.
Employe / Employee
In older statutes and opinions, the spelling of certain words (e.g., employee / employe, subpoena / subpena) was changed to enable faster data entry. After the advent of word processing, those types of words were restored to their original spelling. It is correct, however, to use those shortened spellings when directly quoting those sources or to bracket in the missing letters.
Expedient / Expeditious
"Expedient" means that a particular course of action is a practical solution to a problem; it also has overtones of side-stepping tough choices. "Expeditious" means speedy.
The lawyers decided that it would be expedient to waive oral argument.
The court must decide all cases in an expeditious manner.
Fewer / Less Than
"Fewer" denotes countable things; "less" denotes things that can't easily be counted. However, it is customary to use "less" for time, money, and distance.
If you have 10 items or fewer, then you can go to the express lane.
I have less money than you.
Finding / Holding
A "finding" is a factual determination; a "holding" is an application of law to particular facts.
The trial court found that the officer lacked subjective probable cause.
The Court of Appeals held (not found) that the search was invalid because the officer lacked subjective probable cause.
General statements of law unconnected to particular facts are not holdings.
The Supreme Court stated (not held) that probable cause has both an objective and a subjective component.
"Determination" can refer to either.
Forgo / Forego
"Forgo" means to do without.
I would rather eat late, than to forgo lunch altogether.
"Forego" means to go before.
Based on the crowds lining the streets to catch a glimpse of Justin Bieber entering the courthouse, it is obvious that his reputation foregoes him.
If . . . Was / Were
See Subjunctive Mood, page106.
Implicitly / Impliedly
"Implicitly" is preferred.
The court's ruling implicitly indicated several factual findings.
In Light of / In the Light of
"In light of" is preferred.
Loath / Loathe
"Loath" means unwilling or reluctant:
I am loath to go to the meeting today.
"Loathe" means to strongly dislike or hate something:
I loathe the thought of eating tofu.
May / Might
"May" expresses authority.
The Secretary of State may certify a ballot measure.
"Might" expresses possibility.
The Secretary of State might resign tomorrow.
Of / For
Most authorities consider the following to be more correct:
Defendant was convicted of three counts of assault.
Defendant appeals a judgment of conviction for assault.
Over / Under-More Than / Less Than
Generally, "over" and "under" are used in spatial relationships; they do not take the place of "more than" or "less than."
The train traveled rapidly over miles of desert terrain.
The battleship drifted under the bridge.
The attorney has more than (not over) $5,000 in outstanding legal fees.
He had less than (not under) $20 in his pocket.
Pleaded / Pled
Pleaded is the preferred form.
Portion / Part
A "portion" is a piece of a whole that can be divided into shares, as an estate or a pie. A "part" is a more general term that connotes something less than the whole.
Jenny argued that she had been deprived of her rightful portion of the estate.
Scott contended that he owned the part of the property beyond the fence.
Jim challenged the part of the judgment that prohibited wearing bow ties.
That part of the statute supports defendant's argument.
Proved / Proven
"Proven" is an adjective, while "proved" remains the accepted past participle of prove.
Her attorney is a proven winner.
The prosecuting attorney has proved his case.
Right / Authority
Generally, individuals have "rights" (e.g., the right against self-incrimination, the right to bear arms); however a governmental body or representative needs "authority" to act (e.g., a question of whether a city had authority to take property by eminent domain).
Since / Because
"Because" explains why; "since" expresses time.
Because he attended seven basketball games, David had a busy weekend.
Since moving to a window office, John has been much more productive.
That / This; Those / These
"That" is used as a demonstrative pronoun to refer to thought expressed earlier:
The letter was unopened; that in itself casts doubt on the inspector's theory.
"This" is used when the referent is yet to be mentioned:
This is what bothers me: We have no time to consider late applications.
"Those" and "these" are similarly distinguishable.
Defendant relied on three statutes in his motion. The trial court relied on those statutes, as well as two others.
These are the problems with plaintiff's arguments: The arguments were not raised to the trial court, they are unsupported by legal authority, and they are wrong.
That / Which
"That" introduces a restrictive clause (a clause that is necessary in context to the meaning of the sentence). Commas are not used with a restrictive "that clause."
The decision that the judge made regarding suppression of evidence was con-trary to the legal standard.
"Which" introduces a nonrestrictive clause (a clause that can be omitted without changing the meaning of the sentence). Commas are required with a nonrestrictive "which clause."
The decision, which caught the legal community by surprise, was contrary to the legal standard.
The meaning to be conveyed, not grammatical differences, dictate when to use "that" and "which." Sometimes the same sentence can correctly use either, depending on meaning.
The lawnmower that I borrowed is in the garage. (Correct if there are many lawnmowers under discussion and it is necessary for clarity to identify the one borrowed.)
The lawnmower, which I borrowed, is in the garage. (Correct if there is only one lawnmower under discussion and adjectival clause serves only to give extra information.)
See also discussion of commas on page 79.
Who / Whom
"Who" is used as a subject. "Whom" is used as an object of a verb or preposition. When in doubt about which to use, try rethinking the sentence using "he" or "him."
Who is listening?
(Is he listening?)
Defendant, who was not present in the courtroom, was found guilty. (Defendant-he was not present in the courtroom-was found guilty.)
A woman who I think is a genius wrote this sentence.
(A woman-I think she is a genius-wrote this sentence.)
He asked whom he should speak to.
(He should speak to him.)
Use "that," not "who" or "whom," when the antecedent is not a person.
The bank that Kym uses gives away free blenders with new checking accounts.
Christy sued the company that made the defective golf clubs.
"Case Law" and "Grid Block" are always two words (unless being quoted).
"Cannot"
Cannot is used as one word, except when using a "not only" construction:
We cannot reach unpreserved error.
She can not only pitch, but she can catch, too.
Other words are usually spelled as one word, such as:
caseworker, factfinder, forestlands, handwritten, insofar, landowner, lien-holder, online, overarching, passersby, pickup, policyholder, statewide, time-frame, timeline, timesheet, voicemail, and website
Some words, however, are either one word or two, depending on how they function within the sentence: e.g., clean up, set over, set back, day care, pat down:
The cleanup crew arrived early to start the clean up.
The trial was set over until tomorrow. The defendant requested a setover.
The setback requirement provides for a six foot easement. The house was set back from the property line by five feet.
Her mother provides day care both privately and at a local daycare center.
The subject was pat down by the officer. The officer who performed the pat-down testified that he found a knife.
Appellate opinions are formal documents and, accordingly, do not use contractions. When quoting, however, if the original uses contractions, use those contractions in the quotation.
"Language" technically refers to English, French, Spanish, etc. Although frequently used in constructions such as "the language of ORS 809.222," it is more correct to use "the wording of ORS 809.222" or "the text of the statute."
Letter Opinion
"Letter opinion" is preferred to "opinion letter."
Only
The placement of "only" can change the meaning of a sentence. It modifies the word or phrase that comes immediately after it, so it should be placed accordingly to avoid ambiguity.
The jurisdiction of the court is constrained only by statute.
(That means that the only thing limiting the court's jurisdiction is statute.)
The jurisdiction of the court is only constrained by statute.
(That means that there are other effects on the court's jurisdiction, but the one way that statutes affect jurisdiction is by constraining it.)
The statute only pertains to state actors.
(That is unlikely to express what the author means. It communicates that the statute only pertains, but does not have some other effect.)
The statute pertains to only state actors.
(That is more likely to express the author's meaning. It communicates that the only actors to whom the statute pertains are "state" actors.)
The statute pertains only to state actors.
(That is an alternative author's meaning. It communicates that the only cate-gory of people to whom the statute pertains is "state actors.")
Parameter(s)
This word will almost never be correct in legal writing; it is a technical scientific and mathematical term. When tempted to use it, try "limits," "boundaries," or "borders."
The principles of justiciability and preservation keep judicial analysis within relatively confined boundaries (not parameters).
Parties, Victims, Children, and Law Enforcement
Generally, refer to parties to a case using their position in the lower tribunal (plaintiff, defendant, claimant, etc.). Exceptions include the following: (1) domestic relations cases, in which the parties are referred to as "husband" and "wife" (2) civil commitment proceedings, in which the person for whom commitment is sought is referred to by his or her position on appeal (appellant, respondent); (3) termination of parental rights proceedings, in which the parents are referred to as "mother" and "father" and the children are referred to as "child" or "children" or sometimes by their first initials; (4) juvenile delinquency proceedings, in which a person alleged to be within juvenile court jurisdiction is referred to as "youth" (5) juvenile dependency proceedings, in which a minor is referred to as "child" and (6) adoption cases, in which "child" is used.
Additionally, when a word indicating a party's role in the lower proceeding or on appeal or review is used as a substitute for the party's name, the definite article "the" is not used (e.g., plaintiff, petitioner, etc.). When using an abbreviated name (not party designation), use "the" as in, "the state," "the superintendent."
Do not use the full names of victims. The following references are acceptable:
the victim
the first or last name, but not both
an initial (the initial may, but need not, be related to the victim's name)
In dependency and termination cases, and criminal cases involving a child victim or witness, do not use the names of children. Instead, use an initial. For readability, it is preferred to use a single initial, which may, but need not, be related to the victim's name. If an author would like to use two initials (e.g., to differentiate among siblings whose first names begin with the same letter), then do not use periods (AG, AM, etc.).
In the following types of cases, do not use the name of a person who is protected by a court order (or similar); instead, use a role-based description, such as "petitioner," or an initial: Family Abuse Prevention Act (FAPA) (including violation of restraining order), stalking (including violation of a stalking order), Elder Persons and Persons with Disabilities Abuse Prevention Act (EPPDAPA), registration of a foreign restraining order, and Sexual Abuse Protection Order (SAPO).
When referring to specific law enforcement personnel, use the correct title, e.g., officer, deputy, trooper, detective, etc.
Post-Conviction Cases
When referring to the circuit court in a post-conviction proceeding, "post-conviction court" is preferred to "post-conviction trial court." The petitioner in a post-conviction case is referred to as "petitioner" and the defendant is referred to as "the superintendent," or "the state."
Previous / Prior
"Previous" and "prior" as adjectives are equally acceptable.
Father's parental rights had been terminated in a prior (or previous) proceeding.
Prior to / Before
"Prior to" is disfavored; "before" is preferred.
Wife withdrew joint funds from a checking account before (not prior to) filing for dissolution.
That
"That" as a relative pronoun or relative adverb is sometimes suppressed in informal writing; the preferred practice in opinions is to include it.
The court held that the evidence had been wrongly admitted.
Defendant admitted at oral argument that that proposition was subject to debate.
Use kidnapping, not kidnaping.
Use marshalling, not marshaling.