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Publisher’s Notebook — Legal lightning bugs, part 2

Back in July, this column quoted the venerable Samuel Clemens, a/k/a Mark Twain, who said, “The difference between the almost right word & the right word is really a large matter–it’s the difference between the lightning bug and the lightning.”

A single letter in legal writing can make a big difference. If you make an error when proofreading or hit the wrong key, you have, with a nod to Mr. Twain, a legal lightning bug.

July’s column had 10 pairs of words used by lawyers, and here are 10 more. In each case, the first is an often-used legal term. The second is the legal lightning bug.

1. Marital – martial. This pair actually was contributed by a judge friend who has seen plenty of nasty divorces. “Marital” relates to a marriage, while “martial” is war-like. Martial combat, marital combat … too often the same thing.

2. Tenant – tenet. A tenant is the person who pays the rent money. A tenet is a strongly held belief or principle. A landlord-tenet dispute isn’t going to end well.

3. Complaint – compliant. Every lawyer knows how to file the legal pleading known as a complaint. “Compliant” is agreeable, even acquiescent. If your complaint is compliant, why are you even filing it?

4. Tortiously – tortuously. Tort, meaning an intentional wrong act, is one of those legal words that just looks kind of funny (a bug from July was torte – a tasty cake). Tortious is the adjective that goes with tort. Tortuous, on the other hand, means full of twists and turns. Be careful here — a twisted tortuous interference claim likely will be turned out.

5. United – untied. This one may just be a matter of hitting the wrong key. And when you type “Untied States,” you may not be entirely wrong. But just imagine the problem of flying the friendly skies of Untied Airlines and you’ll get it right.

6. Hearsay – heresy. “Hearsay” is inadmissible information from someone else. “Heresy” is unorthodox or blasphemous doctrine. (Imagine tenets gone bad). Hearsay could be heresy, but don’t go there.

7. Causal – casual. “Causal” is pretty important in a personal injury practice, since your claim is based on duty-breach-cause-injury. “Casual” is relaxed and informal. If your causal connection is casual, you’ll be unrelaxed real quick and in a hurry.

8. Retried – retired. “Retried,” of course, means to give a case another go in court. Move one letter and you’ve got “retired,” meaning you don’t try or retry anything any more.

9. Extent – extant. The first word indicates the size or scale of something, as in, “What is the extent of the damage?” The second word is one of those stilted legal words you’ll see that means “existing” or “still in existence,” as in, “Your honor, we have determined that the will is no longer extant.” The judge might ask you the extent of your pomposity if you talk like that.

10. Filed – field – flied. For our last legal lightning bug, here’s a three-fer. “Filed” is one you’ll use a lot. It’s too easy to shift the letters within that word, so be careful. You don’t want to argue you flied a case, unless you want to take Untied Airlines home.

BONUS BUG. Oyer – oyster. Virginia is one of the states where lawyers can still crave oyer, meaning that they request that a necessary document be treated as part of a pleading. Sounds close enough to “crave oyster” to send you to a seafood place for lunch.