The law is all about words. If law school is anything, it's a three-year exercise in vocabulary building. It's a great warm-up for the practice of law, which is all about using words, orally and especially in writing. Success requires using the right word in the right way. This requires an appreciation for precise meanings and minute differences. As Mark Twain (or, more precisely, was it more Samuel Clemens?) put it: "The difference between the almost right word and the right word is really a large matter--'tis the difference between the lightning bug and the lightning." More recently, the Orange County Court of Appeal made the point this way: "Words are to lawyers, as scalpels are to surgeons. They are tools to be used with precision." People v. Ramirez (G063224, Aug. 20, 2024).
The foregoing (not "forgoing") serves to introduce a new book (published in April), written by Eli Burnstein with the descriptive title "Dictionary of Fine Distinctions: Nuances, Niceties, and Subtle Shades of Meaning," (Union Square & Co. 2024). As advertised, this book is a joy for book lovers, word nerds, and trivia geeks. It's also highly suitable for lawyers, especially appellate lawyers, with a sincere drive for precision.
Burnstein's book is short--only 208 pages--and amusing, with cute cartoons to illustrate its points. It begins, of course, with a section on the Introduction, Foreword, or Preface. It also ends, fittingly enough, with a Copyright v. Trademark explanation.
The heart of the work is an exploration of pairs, trios, or larger collections of common words that are related, yet often confused or used imprecisely. There is no particular order to the endeavor, which adds to the fun. One category of commonly confused terms Burnstein tackles is abstract concepts such as: Envy v. Jealousy, Ethics v. Morality, Beautiful v. Sublime, Kitsch v. Camp, Kink v. Fetish, Shame v. Guilt, and Venomous v. Poisonous. There are also many terms of a geographical nature that are often used haphazardly: Bay v. Gulf v. Cove, Swamp v. Marsh v. Bog, Mesa v. Butte, Gully v. Ravine v. Gorge v. Canyon, and Pasture v. Meadow. Physical items are included too, some ordinary, some less so: Couch v. Sofa, Flail v. Mace v. Morning Star, and Catapult v. Trebuchet. Also covered are types of people and their occupations: Monk v. Friar, Hermit v. Anchorite, Doula v. Midwife, Autocrat v. Despot v. Tyrant, and Schlemiel v. Schlimazel.
Another field where words are often loosely used is architecture: Porch v. Deck v. Veranda v. Patio, Balcony v. Terrace, Pier v. Quay v. Wharf, Harbor v. Port v. Marina, Crypt v. Catacomb, Maze v. Labyrinth. A similar specialty area where laypeople make missteps is the realm of food and cuisine: Crumble v. Crisp v. Cobber, Sorbet v. Sherbet, Stock v. Broth, Hors d'Oeuvre v. Canapé, Club Soda v. Sparkling Water v. Seltzer (with digressions to Tonic Water v. Mineral Water v. Spring Water). Finally, there are naturally many linguistic and literary terms for which many users could benefit from careful delineation: Jargon v. Slang, Parody v. Satire, Irony v. Sarcasm, Parable v. Fable, Phrase v. Clause, and Umlaut v. Dieresis.
Burnstein's book has a number of entries of particular interest to lawyers. This isn't surprising, given that the law is all about words and their highly specific meanings. (For a peek into how this plays out, see Almond Alliance of Cal. v. Fish and Game Commission, 79 Cal.App.5th 337 (2022), known as the "bees are fish" case.) Thus, he addresses Civil Law v. Common Law, Robbery v. Burglary, Ponzi Scheme v. Pyramid Scheme, Snitch v. Rat, Assume v. Presume, Convince v. Persuade, Typeface v. Font, Cardinal number v. Ordinal number (a very simple subject that for some reason seems to trip up many lawyers when talking about Court of Appeal districts--cardinals--and divisions--ordinals), and Epigram v. Aphorism v. Maxim v. Adage v. Proverb.
With that sampling of what the Dictionary has to offer, what follows are sets of words not included in the book, but which could and should be included if there were to be such a book for California lawyers.
We'll begin with some easy ones: Court of Appeals (federal) v. Court of Appeal (state), and the concomitant Judge v. Justice. Calling an intermediate federal appellate judge a justice is likely to prompt a response along the lines of: "thank you, counsel, but you're not the president and can't elevate me to the Supreme Court," or "counsel, haven't you heard that there's no 'justice' in this Circuit?"
Further, again, playing on federal versus state differences, we have the classic Appellee v. Respondent and Remittitur v. Mandate. Then there are petitions for Certiorari (how to get to SCOTUS) v. Review (how to get to SCOCA)--and those who practiced law before the 1984 state constitutional amendment that shifted how supreme court review works, remember the old petition for Hearing (which was the predecessor to our modern petition for review). Lawyers well-versed in federal and state appellate practice rarely mistake any of these terms. In contrast, lawyers less familiar with appellate work often confuse these terms, as well as others, including Rehearing v. Reconsideration, and Unpublished v. Depublished. And even lawyers with meaningful appellate experience will confuse Petition for Review (see Cal. Rules of Court 8.500 to 8.552) v. Petition for Writ of Review. Despite the very similar, if not misleading name, a Petition for Writ of Review is a different animal altogether from a Petition for Review, being most often encountered in administrative areas, e.g., seeking judicial review of a state agency like the PUC (see Pub. Util. Code § 1756) or Workers' Compensation Appeals Board (Labor Code § 5950). Another place lawyers trip up is referring to a Court of Appeal division as the Appellate Division--which, of course, is a different court entirely: the department of a superior court hearing appeals in limited civil cases.
Procedurally, lawyers often misspeak about a demurrer being "granted," when--because a demurrer takes the form of an objection ("demur" literally means to object)--they are technically sustained or overruled, not granted or denied. See Cal. Code Civ. Proc § 430.10 ("The party against whom a complaint ... has been filed may object, by demurrer ... to the pleading").
Slipshod usage also occurs commonly around Waiver and Forfeiture. As both our Supreme Court and the United States Supreme Court have explained, forfeiture is the "failure to object or invoke a right," whereas waiver is the "express relinquishment of a right or privilege." In re Sheena K., 40 Cal.4th 875, 880, n.1 (2007) (citing United States v. Olano (1993) 507 U.S. 725, 733.) But also as our Supreme Court has noted, "the two terms on occasion have been used interchangeably." Id.
Another technical distinction of note in appellate practice is that between Dismissal and Abandonment of an appeal. Dismissal is what can happen to an appeal (voluntarily or involuntarily) by the Court of Appeal once the record reaches the Court of Appeal and the briefing schedule for the appeal has been set. See, e.g., Cal. Rules of Court 8.244(c)(1). Abandonment is how an appellant can drop an appeal in the superior court before the record is filed; the abandonment "effects a dismissal of the appeal." See Cal. Rules of Court 8.244(b)(1). Yes, this really matters. In fact, there are different Judicial Council forms for each, APP-005 for Abandonment of Appeal and APP-007 for Request for Dismissal of Appeal. Use the wrong form and you'll be ordered to try again with the right one.
A pair of similar words that lawyers like to use (and misuse) are specious and spurious. Helpfully, Garner's Usage Tip of the Day for August 27, 2024, sets the record straight: "What is specious is seemingly true but actually false <specious arguments>. What is spurious is illegitimately produced <spurious offspring>; sham, counterfeit, or forged <spurious bank drafts>; or else insincere <spurious praise>." Since these words are all too commonly employed in name-calling spats, they probably should be eschewed entirely in briefing.
We'll close with a perennial favorite: lectern v. podium v. dais v. pulpit. A lectern is a slanted stand for holding papers. Lecterns are what lawyers stand behind in court. A podium is, traditionally, a raised platform for speakers to stand on. (Rostrum is a synonym for podium.) Thus, courtrooms typically (and technically) do not have podiums. But lawyers and others typically refer to courtroom lecterns as podiums. This has become so standardized for so long that only a true pedant would draw the distinction. (And what is a "pedant"? Someone excessively concerned with minor details. Perhaps someone you know.) A dais is a raised platform that can be used by many people at once, i.e., an elevated stage (whereas a podium is typically used by just one speaker). Finally, just to round things out, a pulpit is a raised platform, which is often enclosed, used by speaker in a religious setting. Listen to enough appellate arguments and you will hear lectern, podium, and dais all used to refer to the courtroom's lectern. Don't let it bother you, ok?
As Retired Justice Stephen Breyer has written, "most of the cases the [U.S. Supreme] Court decides concerns the interpretation of words in federal statutes." Breyer, The Authority of the Court and the Peril of Politics, 34 (Harv. U. Press 2021). ). (And despite the dire warning of former Justice Antonin Scalia in his dissent in King v. Burwell, 576 U.S. 473, 500 (2015), words still do have meaning.) But one need not have cert granted to get to delve deeply into precisely what the right word means. Careful lawyers do that every day, choosing every word wisely and with exactitude.
Reprinted with permission from Daily Journal.
