Shortly after I submitted last month’s column, I ran into
another attorney at an event in Tucson. She requested that I write a column very similar to the one I had just completed, but she identified a
handful of frequently confused words that I had omitted for space last
time. Because I’m always happy for column ideas—particularly when I’m
guaranteed that at least one other person1 is interested in the topic—I
bring you Tricky Diction II: Trickier Diction.
Affect / effect
His impassioned closing affected the jury; it had the desired effect.
Many people struggle to use these homophones appropriately. It helps to
remember that, most often, affect is a verb meaning to influence, and
effect is a noun meaning result.
• The new mayor’s policies dramatically affected the crime rate.
• Then again, the mayor’s policies had some unanticipated effects, too.
Were the rule this simple, though, fewer writers would err, and I could
prescribe a simple rule for you. Unfortunately, however, we also occasionally use affect as a noun meaning demeanor and effect as a verb meaning to cause.
• Her flat affect made her less sympathetic to the jury.
• The mayor hoped to effect change.
Some people remember how to use affect by associating it with
affection. My affection for her affected my judgment. His affect increased my
affection for him. Others keep in mind that we usually—though not
always—use affect as an action. Neither trick particularly works for me,
though; I find it easiest just to memorize the different meanings.
Further / farther
Marti and I discussed it further before we decided to run farther.
In traditional American usage, people use the adverb farther to describe
actual physical distance. This is easy to remember because farther
contains the root far.
• Tucson is farther from Los Angeles than Phoenix is.
• Parcel A is farther from the access road.
Further, on the other hand, indicates figurative or metaphorical distance.
• Apple stock rose further today after the release of the iBrain 5.
• Susie finally progressed further on her to-do list.
Most style guides, however, advise that you may use further
for either physical or metaphorical distance. It is not incorrect
to say, for example, “The defendant ran further,” or “Parcel A
is further from the access road.” That said, unlike farther,
further also serves as a verb meaning to advance and as an adjective meaning additional.
• Plaintiff’s poorly researched screed did not further her
credibility with the court.
• The defendant then repeatedly backed her car into
plaintiff’s shed, causing further damage to the lawnmower.
In short: When in doubt, use further. It’s always acceptable.
Pled / pleaded
Which is correct? • My client pleaded guilty; or
• My client pled guilty.
12 ARIZONA ATTORNEY JULY/AUGUST 2015 www.azbar.org/AZAttorney
THE LEGAL WORD by Susie Salmon
Susie Salmon is Assistant Director
of Legal Writing and Associate Clinical
Professor of Law at The University of
Arizona, James E. Rogers College of Law.
Before joining Arizona Law, she spent
nine years as a commercial litigator at
large firms in Tucson and Los Angeles.
Technically, the correct answer is the first
one: My client pleaded guilty. Both the
Chicago Manual of Style and the AP
Stylebook agree. In his Dictionary of Modern
Legal Usage, Bryan Garner advises using
pleaded because it is technically the correct
past tense and past participle of the verb to
plead, but he also observes that pled has
long been a common and acceptable variant
in legal usage. Although the pleaded / pled
debate does not provoke the passion of, say,
the Oxford-comma controversy or the war
between the one-spacers and the two-spac-ers, people tend to feel strongly that either
pled or pleaded is correct (and that, conversely, one or the other is AN ABOMINATION).
My advice? Proceed with caution. If you
know which your audience prefers, use that
option. If you don’t know, use pleaded
(unless you find it to be an abomination. If
you do, use pled.) I’ll confess that I prefer
the look and sound of pled. 2
Flaunt / flout
Vivid verbs invigorate prose. Choose an
inapt verb, however, and you undermine
your impact. For example, do you want to
accuse an opposing party of flagrantly defying the law? Don’t flagrantly defy correct
usage by accusing your opponent of
flaunting the Rules of Civil Procedure. Instead,
flaunt your writing chops by accusing her of
flouting those rules.
Flaunt and flout sound similar, and both
have negative connotations, so it is hardly
surprising that even nimble legal writers
misstep when selecting between the two.
Flaunt connotes a showy display and conveys disapproval of that display. Flout
connotes a showy defiance of rules, laws, or
conventions, and also conveys disapproval.
Some dictionaries even list flout as a secondary—although disfavored—meaning for
flaunt. The difference in meaning is subtle
but significant. Keep the distinction in mind
and deploy these vivid verbs with confidence.
Any other commonly confused words you’d
like to clarify? I welcome suggestions for
Tricky Diction III: The Trickiest.
1. Other than my mom.
2. And I don’t think I’ve ever heard the lawyers
on Law & Order say pleaded.
Tricky Diction II (The Sequel!)