Spelling for Lawyers and Paralegals: Legal Words That Trip Up Filings

A brief can be brilliantly argued and still lose its reader on the first page. A misspelled party name in the caption, judgement where the court itself writes judgment, supercede in the opening paragraph: none of these changes the law, but each changes how the judge, the clerk and opposing counsel read everything that follows. In a profession that sells precision with words, a spelling error is not a neutral slip. It is evidence.

Legal writing also has more peculiar spellings than almost any other field, because much of its vocabulary arrived through Latin and through the French once spoken in English courts. Those words do not follow the habits of ordinary English, and the spell-checker in your word processor is not always sure of them either.

This guide is for lawyers, paralegals and legal assistants who want to get them right every time. It covers the words that cause the most trouble and the history that explains the strangest of them. Then come the pairs no software will catch, a table of fifty words to check your own filings against, and a short routine that fixes them for good.

Why a typo in a filing is not a small thing

In most writing, a typo costs a moment of embarrassment. In a filing, it can cost more. A misspelled party name in a caption can create genuine confusion about who is bound by an order, and a filing whose caption does not match the docket may be returned or routed to the wrong place. When a deadline is running, a rejected filing is not a cosmetic problem.

Then there is the reader. Judges read an enormous amount, and they notice care, or its absence. American judges have more than once criticized sloppy briefs in published opinions, and at least one federal court has cited a lawyer's typographical errors when reducing a fee award. Such cases are rare. They are also memorable, and nobody wants to supply the next example.

Most spelling errors cost something subtler: trust. A reader who finds occurence on page two begins, quite reasonably, to wonder what else was missed, including in the citations and the facts. For the everyday words that cause the same problem in any office, see the spelling mistakes that make you look unprofessional at work.

Judgment, with no e

This is the question legal writers ask most, and the answer is settled. In legal writing, use judgment.

American English uses judgment in every context. British English often uses judgement in general writing, but the courts themselves write judgment for a court's decision, so a British judge hands down a judgment even while a newspaper may lament someone's poor judgement. Bryan Garner, whose usage guides most American legal writers rely on, recommends judgment for legal writing without qualification.

The word acknowledgment follows the same pattern in American legal usage, though acknowledgement is common in Britain. Whatever your court and firm style guide prefer, the important thing is to use one form throughout a document. A brief that alternates between the two looks careless even when both are defensible.

Why legal words look so strange

The odd spellings of the law are historical deposits, and knowing where they came from makes them far easier to remember.

After the Norman Conquest of 1066, English courts did not operate in English for centuries. Records were kept in Latin, and lawyers argued in a specialized dialect now called Law French. In 1362 Parliament passed a statute requiring pleadings to be conducted in English; with an irony that legal historians enjoy, the statute itself was written in French. The records remained in Latin until an act of 1730 finally required English in court proceedings.

By then, hundreds of legal words had settled into English with their foreign spellings intact. Words such as plaintiff, attorney, tort, lien, estoppel and voir dire are fossils of Law French. Latin supplied the rest: affidavit, subpoena, habeas corpus, certiorari and many more. Once you know which language a word came from, its spelling stops being an arbitrary string of letters and becomes a word with a history.

Words with a story

Start with subpoena, which is Latin for "under penalty." The writ began with the words sub poena, warning the recipient of the penalty for failing to appear. The oe is the Latin spelling of poena, the same root that gives us penalty and penal. The past tense is subpoenaed; the plural is subpoenas.

The word indict is pronounced "in-DITE," and its c is a scholarly afterthought. The word entered English from Anglo-French enditer and was long spelled without a c. Around 1600, writers inserted one to make it resemble the Latin indictare, and the spelling changed while the pronunciation did not. The same silent c appears in indictment.

An affidavit is, in Medieval Latin, "he has declared on oath," related to the fid of fidelity. It has one f and one d, and the avit ending is a Latin past tense.

The double f in plaintiff comes from Anglo-French plaintif, and the word shares a root with complaint and plaintive. A mortgage is, in Old French, a "dead pledge," which is why a t sits silently in the middle. And voir dire is Law French for "to speak the truth"; the voir has nothing to do with seeing, despite its modern French look.

The verb supersede ends in sede because it comes from Latin supersedere, "to sit above," and it is the only common English word with that ending. Three words end in ceed: proceed, exceed and succeed. Every other word with that sound, such as precede, concede and intercede, ends in cede.

Finally, tort is French for "wrong," from Latin tortus, twisted. That origin explains one of the most dangerous confusions in the profession, because tortious and tortuous both descend from the same Latin verb for twisting. Only one of them belongs in a complaint.

Latin phrases that go wrong

Latin phrases are hard because they follow no English pattern and many are seen in abbreviated or italicized fragments rather than in full.

The phrase de minimis ends in is, not us. It means "concerning the smallest things," and the misspelling de minimus is common enough to appear even in published opinions. The phrase amicus curiae means "friend of the court," and its plural is amici curiae. And res judicata means "a matter judged," though some courts still use the older form res adjudicata.

The phrases prima facie, sua sponte, pro se, inter alia, mens rea, bona fide and per curiam are all two words and take no hyphen when they stand alone, although some are hyphenated when used as compound modifiers before a noun. The word certiorari has three r's and ends in ari. In habeas corpus, both words end in s.

Whether to italicize them depends on your court and style guide. Phrases like prima facie and pro se are so thoroughly absorbed into legal English that many guides now set them in roman type. The rule that never changes is consistency within a document.

The pairs no spell-checker will catch

The most dangerous errors are real words in the wrong place, because the spell-checker sees a valid word and moves on. In legal writing, several of these pairs change the meaning.

The pair tortious and tortuous deserves special care. A tortious act can support a lawsuit; a tortuous road merely has bends. Describing a defendant's conduct as tortuous is the kind of error opposing counsel will quote back to you with some pleasure. For a wider set of pairs, see affect or effect and 40 other confused pairs.

Fifty filing words to check

Here are fifty words that go wrong in legal writing. Some are terms of art; many are ordinary words that appear in nearly every filing. Read through them and mark any you would hesitate over.

A few notes on the traps. Neither allege nor privilege contains a d, though ledge and knowledge tempt people to add one. There are two h's in withhold, one from with and one from hold. The word harass has one r and two s's, while embarrass doubles both. The noun rescission keeps the sc of rescind and then adds a double s. Negligence ends in ence, consensus has an s, not a c, in the middle, and foreseeable keeps the e of foresee before adding able.

How to learn them for good

A spell-checker is useful and you should keep it on. It will not teach you these words, though, and it will not help you in a hurried email to a client or a handwritten note at counsel table. The words have to live in your own memory.

Two well-established findings make that faster than you might expect. The first is that recalling a word strengthens it far more than rereading it; in a well-known 2006 study, Henry Roediger and Jeffrey Karpicke found that students who practiced recall remembered much more a week later than students who reread. The second is the spacing effect: short sessions spread over days beat one long session, a finding confirmed across hundreds of studies.

In practice, that means working from your own errors rather than someone else's list. Search your last few filings for the words in the table and add any you have misspelled before. Then practice that list from memory. Have the words read to you, or record yourself reading them and play the recording back, then type each one without looking and check it. Five to ten minutes a day is enough. Missed words come back tomorrow; correct words come back in a few days, then a week. Most people can retire a personal list of twenty or thirty words in two or three weeks.

Use the stories too. Practicing subpoena, think "under penalty." Practicing indict, picture a Renaissance scholar inserting a c to make it look respectable. A story gives the memory something to hold, and a word with a hook is easier to find at eleven at night with a filing deadline at midnight. For ways to fit this into a working day without anyone noticing, see how to spell better at work without anyone knowing.

Spelling.School can run this routine for you, with a recorded voice, letter-by-letter feedback and a spaced-repetition review schedule, and it includes career word lists.

What to do next

Open your last three filings and search them for the words in the table above. Search separately for judgement, supercede, de minimus and tortuous. Whatever turns up is your first practice list.

Then give that list five minutes a day for two weeks, spelling each word from memory before you check it. The five-word demo on the home page is a quick way to see how that kind of practice feels. A clean filing will not win a case on its own, but it ensures the judge is reading your argument rather than your typos.

Questions people ask

Is it judgment or judgement in legal writing?

Use judgment, with no e after the g. It is the standard spelling in American English in every context, and British courts also use judgment for a court's decision, even though judgement is common in general British writing. Legal usage authorities such as Bryan Garner recommend judgment in legal documents, and consistency within a document matters most.

What legal words are most often misspelled?

Frequent problem words include judgment, subpoena, affidavit, indictment, plaintiff, supersede, privilege, rescission, occurrence and de minimis. Many come from Latin or Law French and do not follow ordinary English patterns. Confused pairs such as counsel and council, principal and principle, and tortious and tortuous cause further errors that spell-checkers cannot catch because both words are real.

Why is subpoena spelled that way?

Subpoena comes from the Latin words sub poena, meaning under penalty, which were the opening words of the old writ requiring a person to appear. The oe is the Latin spelling of poena, the same root as penalty and penal. The past tense is subpoenaed and the plural is subpoenas.

Do spelling mistakes matter in court documents?

Yes. A misspelled name in a caption can cause confusion about the parties or lead to a filing being returned, which matters when a deadline is close. Beyond that, errors affect how a judge reads the entire document, and some judges have criticized careless briefs in published opinions. A clean filing keeps the reader's attention on the argument.

How can a paralegal learn legal spelling fast?

Build a personal list from the legal words you use most and any you have misspelled before. Practice them from memory for five to ten minutes a day, hearing each word and typing it without looking, then checking every letter. Bring missed words back the next day and correct ones back after a few days, and learn the Latin or French origin of the strangest words so they have a story attached.

Why is indict pronounced indite?

Indict came into English from the Anglo-French enditer and was spelled without a c for centuries. Around 1600, writers added a c to make it look more like the Latin indictare, but the pronunciation never changed. That is why indict and indictment are still said with a long i and a silent c.

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