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Garner's Dictionary of Legal Usage

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I recently obtained a copy of the third edition of Garner's Dictionary of Legal Usage.  (The publisher decided to put Bryan Garner's name in the title, an indication of its view of his marketability.)  As with Garner's other works, this one is a valuable collection of sound advice on legal writing.  I expect it will be a frequently used addition to our library.

The book contains much good advice on general usage of words.  There is an entry on "that" v. "which" and one on "it's" v. "its."  The advice generally leans conservative, recognizing that legal writing is usually formal, and it is not good to distract the reader with a usage that many consider wrong.  But Garner also refutes a number of false rules in an entry on Superstitions.  Superstition (D), for example, is "Never Begin a Sentence with and or but."
As an example of conservatism, Garner sticks to the traditional distinction between "lay" and "lie."  I do also, although I hear the "wrong" usage so often these days, even by very educated people, I have to wonder if it is still wrong.  I cringe when I hear someone with an advanced degree say, "The body of the deceased victim was laying face down."  Laying what face down?  Bricks?  Is this a case of zombie masonry?

In addition to general usage advice, of course, there is much on usage of terms specific to law.  There is an entry on collateral estoppel, explaining that it is the same as issue preclusion but different from res judicata, which is the same as claim preclusion.

There is advice on punctuation and typography.  Do you italicize foreign phrases, including traditional legal Latin?  It depends on whether the term has been "naturalized," which is a "fuzzy line."  Look up the specific term in the book.  If its headword is italicized, then italicize it.  Mens rea is italicized, but res judicata is not.

When do you use Latin and when do you use an equivalent English term?  If the English translation really is equivalent, there is no reason to use the Latin.  Use Latin terms when they have acquired a special meaning, different from their literal translation, for which there is no English equivalent.  If your client is in the slammer, you don't want to apply for a "have-the-body writ."

Practitioners of criminal law eventually get used to our specialty getting the short straw in general legal materials, so it is not surprising to find the book a bit light on criminal law terms.  I was interested in reading the entries on "postconviction review" or "collateral review."  These are sometimes problematic terms that have required the attention of the United States Supreme Court in recent years, see Wall v. Kholi, No. 09-868 (2011); Duncan v. Walker, 533 U.S. 167 (2001), but alas there are no entries.  That is really my only negative comment on the book so far.

There are even sprinkles of humor in the book, unusual for a reference work.  In the long entry on derogatory names for lawyers (48 column inches), there is a subentry for "green bag."  "Although the epithet is one that many lawyers have borne with pride, there is something at least mildly self-deprecating about equating oneself with a bag. -- B.A.G."  That's the author's initials at the end.  None of the other entries I have found are initialed.

I particularly like the fact that examples of usage, good and bad, are given with citations.  This feature was added in the second edition and retained in the third, even though some of the cited/criticized authors leaned on the publisher to take them out.  I checked the table in the back.  I'm not there.  (Whew!)

The book is published by Oxford University Press.  The list price is $65.00.  If you care about the quality of legal writing in your office, it should be in your library.  If you are a pettifogger (p. 673) and wish to remain one, don't bother.

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I have taken Garner's one-day CLE on legal writing, and I use the usage dictionary frequently. I also highly endorse this reference tool.

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