The Scrivener: English Test for Lawyers: Fall Semester 2017

THE SCRIVENER English Test for Lawyers: Fall Semester 2017 By Scott Moïse Sometimes when I drive by the law school these days, I see people walking around in shorts or jeans, smiling and laughing and having a good time. I think about my upcoming week when the judge is going to be irritated because she does not want to hear another motion to compel, the mediator is going to be irritated because our client does not think the case should settle for more than $200, and my client is going to be irritated because he thinks our bill should be lower. Sigh. Those students have it so good. Coming up to the end of the semester, instead of dealing with a lot of irritated people, we could be having as much fun as the students—like taking exams. Let’s do it! 1. When should writers use exclamation marks? (A) To express strong feeling in informal writing (B) To express strong feelings in both informal and formal writing (C) Never ANSWER: (B) Exclamation marks can be used to show strong feelings in any writing, even in formal legal writing. Even late Justice Scalia used exclamation marks in a United States Supreme Court opinion: “And Hansel and Gretel (children!) kill their captor by baking her in an oven.” Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 796 (2011); see also Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 152 (2011) (Kagan, J., dissenting) (“We have faced the identical situation five times—including in a prior incarnation of this very case!—and we have five times resolved the suit without questioning the plaintiffs’ standing.”). Having said that, exclamation marks should be used sparingly in legal writing and otherwise. Exclamation marks are controversial. For example, F. Scott Fitzgerald hated exclamation points. In his later years, he dated a gossip columnist named Sheilah Graham and set out to educate her. She subsequently wrote about sharing a piece of her writing with Fitzgerald, who responded, “Cut out all these exclamation points. An exclamation point is like laughing at your own joke.” Sheilah Graham & Gerold Frank, Beloved Infidel: The Education of a Woman 197-98 (1958). Although exclamation marks are one of the “major marks” of punctuation, the mark did not even get its own key on a keyboard until 1970; before then, typists had to type a period and then backspace and type an apostrophe above it. See Rose Eveleth, “The History of the Exclamation Point,” Smithsonian.com (Aug. 9, 2012), www. smithsonianmag.com/smart-news/ the-history-of-the-exclamationpoint-16445416. 2. Tod will _____ his PowerPoint to the hearing. (A) bring (B) take (C) both are correct ANSWER: (B) “Take” involves motion away from the subject. • Take the sandwich to Nan. “Bring” involves a motion towards the subject. • Bring me a sandwich. Of course, for lawyers, we “bring an action,” which means that we sue someone and does not involve actually moving towards or away from a subject. 3. If [things turn out as badly as possible], we will dismiss the case without prejudice and bring it again later. (A) worse comes to worst (B) worse comes to worse (C) worst comes to worst ANSWER: (C) is the original idiom that is found in a pamphlet written by Thomas Nashe in 1596, when he compared death by drowning to death by swimming: “If the worst come to the worst, a good swimmer may do much.” See Ben Zimmer, “ ’If Worst Comes to Worst,’ ” N.Y. Times Mag. (Feb. 4, 2011) www.nytimes.com/2011/02/06/magazine/ 06FOB-onlanguage-t.html. After that, John Dryden, Henry Fielding, Charles Dickens, and Charlotte Brontë used the same phrase. That should settle the question, but it does not because later writers changed it to (A). For example, in Robinson Crusoe, Daniel Defoe wrote, “If the worse came to the worst, I could but die.” Id. Courts have used all three versions. See, e.g., Calandro v. Sedgwick Claims Mgmt. Servs., No. 15- 10533, 2017 WL 3895546, at *2 (D. Mass. Sept. 6, 2017) (worse comes to worse); In re Rouse, 301 B.R. 86, 89 (Bankr. D. Colo. 2003) (worse comes to worst); Nw. Racquet Swim & Health Clubs, Inc. v. Fed. Sav. & Loan Ins. Corp., 721 F. Supp. 211, 217 (D. Minn. January 2018 61 1989) (worst comes to worst). The result is that probably all versions are correct—certainly (A) and (C) are correct—but if I were the king of the world, I would make (A) mandatory because it makes more sense. 4. Which is the correct Bluebook citation for ordinal numbers in a citation referring to the fourth edition of a book? (A) (2nd ed.) (B) (2nd ed.) (C) (2d ed.) (D) (Second ed.) ANSWER: (C) EXAMPLE: • Erika C. Birg, Arbitrating Until It Hurts (2d ed. 2017). First (pun intended), for the mathematically challenged (like I am), we will have some “math for dummies” basics on numbers: Ordinal numbers define a position in a series, such as “first,” “second,” and so on. Cardinal numbers show an amount, such as “one,” “two,” and so on. Numerals are symbols or figures that denote numbers, such as “1,” “2,” and so on. Second (also intended!), with that in mind, Bluebook rule 6.2 sets out the general rules for numbers and symbols. Rule 6.2(b)(ii) prohibits superscripts, the numbers set slightly above the normal line of type. For example, “2nd” has a superscript for “nd.” NOTE: To keep your computer from automatically adding superscripts, you can find helpful online tutorials by conducting a Google search for “disable superscript ordinals” and the name and version of your software. Third (intended again!), in a citation, use “2d” instead of “2nd”; use “3d” instead of “3rd.” Why? I have no idea, but I cannot do a thing about it. • See The Family Leave Act, S. 1973, 103d Cong. § 15 (1983). In the text of sentences, however, when Rule 6.2(a) allows numerals instead of writing out the numbers, use “2nd” and “3rd.” • Dean Wilcox lost his voice after announcing the 103rd graduate’s name at the Hooding Ceremony. 5. Which of these are examples of mixed metaphors? (A) Putting cocktail sauce on shrimp is gilding the lily. (B) Her eyes were hard steel on the nozzle of a gun. (C) Plaintiff is no Cinderella in Wonderland. ANSWER: (A) and (C) are mixed metaphors. (B) is a malapropism. To get down to English-teacher basics: a metaphor is a figure of speech describing a person, object, or action in a way that is not literally true, but makes a comparison. 62 SC Lawyer • Katie is a charging tiger in the courtroom. This contrasts with a simile, which makes the comparison by stating that the person, object, or action is “like” another. • Katie is like a charging tiger when she is in trial. A mixed metaphor mistakenly mixes up two metaphors, usually with an embarrassing result. (A) “Gilding the lily” (trying to improve something that is already beautiful) is not embarrassing because so few people seem to realize that the expression came from Shakespeare: “To gild refined gold, to paint the lily . . . is wasteful and ridiculous excess.” William Shakespeare, King John act 4, sc. 2, line 11; see also Komessar v. United States, No. 13 C 3152, 2013 WL 4606884, at *1 (N.D. Ill. Aug. 29, 2013) (“Parenthetically, this Court has never understood how or why such a felicitous turn of phrase became corrupted in common parlance to the wholly inapropos mixed metaphor “to gild the lily.”). Nevertheless, this expression is a mixed metaphor. (C) “Plaintiff is no Cinderella in Wonderland.” (meaning that the plaintiff is not an innocent or naïve person). This is mixing metaphors of the Disney characters Cinderella and Alice in Wonderland. See Sturdy Homes, Inc. v. Twp. of Redford, 186 N.W.2d 43, 46 (Mich. Ct. App. 1971) (“But, argues counsel for the township, in a curiously mixed metaphor, ‘Plaintiff is no Cinderella in Wonderland; he bought with the knowledge of the limitations on use and he so bought very advantageously.’ . . . Cinderella or no, plaintiff is entitled to his constitutional protection.”). A malapropism is mistakenly using a similar-sounding word instead of the correct word. (B) “Nozzle” (meaning the spout at the end of a pipe, hose, or tube) is confused with the word “muzzle” (meaning the front end of the barrel of a gun), a malapropism. See United States v. Dunkin, 438 F.3d 778, 779 (7th Cir. 2006) (in which Judge Posner delighted in this “delicious malapropism” by a robbery witness). 6. I ________ my brain trying to remember the witness’s first name. (A) racked (B) wrecked (C) wracked (D) wreaked ANSWER: (A) • “Racked” means “stretched” or “tortured.” “The court has racked its brain and pored over the evidence to come up with the real reason for the traffic stop …” United States v. Garcia, 976 F. Supp. 2d 856, 867 (N.D. Tex. 2013). [T]his was ‘a case of a man … racked with physical pain and psychological distress.’” Delle Rose v. LaVallee, 414 U.S. 1014, 1015 (1973). •“Wrecked” means “destroyed.” Plaintiff sought a declaratory judgment that “he was entitled ‘to enter the site of, and to observe, photograph, and videotape, the wrecked vessel’ … ” R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 959 (4th Cir. 1999). • “Wracked” means “destroyed” or “ruined.” “Section 3 [of the Civil Rights Act] provided that the President could send the militia into any State wracked with Klan violence.” Monnell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 665 n.11 (1978). “Colombia … is wracked by violent divisions based on class …” Garcia v. U.S. Atty. Gen., 217 F. App’x 855, 863 (11th Cir. 2007). “We emphasize, however, that an executor who by his neglect subjects his decedent’s property to wrack and ruin will be held accountable.” In re Estate of Denlinger, 297 A.2d 478, 481 (Pa. 1972). • “Wreak” means “to inflict vengeance or punishment” or “to bring about or cause.” “The market was so volatile that it wreaked havoc on many old and established cotton merchants …” In re Joseph Walker & Co., 545 B.R. 132, 156 (Bankr. D.S.C. 2015). “She is trying to undo the damage wreaked by the uncontrollable impulses of her husband.” Mullinax v. J.M. Brown Amusement Co., 326 S.C. 453, 459, 485 S.E.2d 103, 107 (Ct. App. 1997). 7. The Charleston Bar held its annual Judges’ _________. (A) Barbecue (B) Barbeque (C) BBQ ANSWER: (A) “Barbecue,” which comes from the Spanish word “barbacoa,” meaning “a wooden framework for supporting meat over a fire,” is the preferred and most predominant spelling. See Bryan A. Garner, Garner’s Modern American Usage 87 (3d ed. 2009). However, “barbeque” is also correct. “BBQ” should not be used in formal writing. • “Bessinger built his now-famous barbecue business from the ground up, relying on hard work and a good product.” Bessinger v. Food Lion, Inc., 305 F. Supp. 2d 574, 576 (D.S.C. 2003). But see S.C. Dep’t of Health & Envtl. Control v. Windy Hill Orchard, No. 2010-UP-563, 2010 WL 10088260, at *1 (S.C. Ct. App. Dec. 23, 2010) (“The meatballs are heated in a steam kettle with Windy Hill’s apple-butter barbeque sauce, and transferred to a crock-pot to keep warm until they are served.”). 8. Lisa got some of her best leads about the defendant from basic ____ searches. (A) internet (B) Internet (C) Both ways are correct. ANSWER: (C) I am going out on a limb January 2018 63 here because according to the Oxford Dictionary and legal writing scholar Bryan Garner, the word “Internet” should be capitalized. The Bluebook also capitalizes it. However, the rogues at the Associated Press—who do not use the serial comma when they should and who use single quotation marks when they should be double—have decided to use lower case. Count me in with the rogues at AP on this issue. “Internet” with a capital “I” looks dated, as if you were to capitalize words like “aspirin” and “zipper,” which were formerly proper nouns but are now generic. Also, over-capitalization ruins writing. Even the Oxford Dictionary states that “Internet” is only “slightly more common” at this time and that Oxford is capitalizing “for now.” Katherine Connor Martin, Should You Capitalize the Word Internet?, Oxford Dictionaries (Apr. 5, 2015), https://blog.oxforddictionaries. com/2016/04/05/should-you-capitalize-internet/. Look out Capital “I” Internet: your days are numbered. 9. What is the correct punctuation at the end of this sentence? • “She was also having a profound influence on my life in many other ways that I would not admit because I was a stupid little kid, and what did I know” (A) question mark (B) exclamation mark (C) period ANSWER: All of the above could be correct, depending on the circumstances. This is a rhetorical question: a question asked to make create a dramatic effect or to make a point rather than to get an actual answer. QUESTION: “Do you love me?” ANSWER (I am paraphrasing): “Does a bear sleep in the woods?” The answer is in question form, even though the speaker does not want or expect an answer, so it could end in a question mark. Alternatively, this same answer could have ended in a period because it is simply making a statement in dialogue. Alternatively, it could have ended in an exclamation if the speaker was excited or expressing strong feeling, such as if the questioner had asked the same question about a dozen times that same day. 10. Who said it better: (A) “If I was a rich girl, na,na, na, na, na, na [to infinity] . . . .”(from “Rich Girl” by Gwen Stefani) (B) “If I were a rich man, ya ha deedle deedle, bubba bubba deedle deedle dum.” (from “If I Were A Rich Man” from Fiddler on the Roof) ANSWER: (B) The Fiddler has it right. Both statements, starting with “if” and expressing something that is contrary to fact or not likely to happen, require the verbs to be in the subjunctive mood (“were”). Of course, because I really like Gwen Stefani, I could argue that she was right to use “was” because the subjunctive mood is not always used after the word “if,” such as when the clause concerns a condition that is probable or likely. (“If Alaine was in the breakroom, she must have been getting her usual Diet Coke.”). In that situation, the subjunctive mood (“was”) is correct. However, the lyrics indicate otherwise. Now, tally up your points. You receive one point for each correct response. 8–10 points: Wow! You’re an English ace. Enjoy your Winter Break and get some well-deserved rest and relaxation. 5–7 points: Not bad, but I know you can do better. Go to Amazon right now and order The Gregg Reference Manual and a new dictionary. 0–4 points: I recommend hitting the books this Winter Break. Remember: it’s not about where you start; it’s about where you finish. Class dismissed. ⚖ 64 SC Lawyer