Commonly Confused Words: Knowing When to Choose the Right One

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Category: Legal Writing, Public

Even as we add more official (and some might say questionable) words to our dictionaries—like selfie, twerk, sexting, and LOL—we sometimes seem to have a difficult time knowing when to use some of the basic words that have been around forever. Below are some commonly confused words, their meanings, and their proper use.

That/Which/Who – Probably the most commonly confused combination.  Misuse of “that” and “which” proliferate nearly every judicial opinion students read, which adds to the confusion.  Also, of late, I’ve noticed that students are dropping the use of “who” altogether and using “which” instead in places that make their writing grammatically incorrect.  So let’s take a look at each of these words.

“That” is used for what we call restrictive clauses; that is, for clauses that are essential to the meaning of your sentence. The sentence would not mean the same thing if the clause was removed.  For example, take my sentence above: “That” is used for what we call restrictive clauses; that is, for clauses that are essential to the meaning of your sentence. The clause “that are essential to the meaning of your sentence” is essential to the meaning of my sentence.  The sentence does not mean the same thing if I removed that clause.  E.g.: “That” is used for what we call restrictive clauses; that is, for clauses.  That is why I used “that” and not “which.”

“Which” is used for what we call non-restrictive clauses; that is, clauses that are not essential to the meaning of your sentence.  You could remove the clause and the essential meaning of the sentences remains the same.  For this reason, “which” is used with commas.  As I tell my students, think of the commas as scoops; when you set off a clause with commas, you’re telling the reader she could scoop that clause out of the sentence and the essential meaning wouldn’t change.  It is at these times that you use “which.”  For example, The brief, which took Jim seven hours to write, was filed yesterday.  If I scooped out the “which” clause, the essential meaning of the sentence remains: The brief was filed yesterday.  That it took Jim seven hours to write it is, as written in this sentence, extra information.

Now, if it is essential for the reader to know that Jim took seven hours to write the brief, the sentence would have to be rewritten with a “that” clause (and no commas).  Thus: The brief that took Jim seven hours to write was filed yesterday.

While “that” and “which” are used for things, “who” is used for people.  “Who” seems to show up in non-restrictive clauses, where the writer might use “which.”  Thus, Jim, who is the firm’s best writer, filed the brief yesterday.

More than/Over – This combination is probably the next most frequently confused combination.  Most people use “over” when they really should be using “more than.” For example, you’ve likely read or written a sentence such as this one: The conference drew over 120 attorneys from across the country. That sentence is grammatically incorrect. “Over” is for spacial concepts—like, That idea is over my head.  “More than” is what the writer must use when addressing countable things, like lawyers at a conference.  The sentence should read: The conference drew more than 120 attorneys from across the country.

Few(er)/Less – This combination is the flip of “more than/over.” And it doesn’t help that nearly every grocery store has a check-out line for “10 items or less,” which furthers the confusion. Use “few” for countable things.  For example: The conference drew fewer than 120 attorneys from across the country. (Or go to the check-out lane for “10 or fewer items.”) “Less” is used for things that cannot be counted. Thomas has less work to do on his brief than Kim does.

Amount/Number – I saw this confusion creep into a number of student briefs this semester, and it was this confusion that has prompted this post.  “Number” is used, again, for countable things.  Like student briefs that mixed up these words. “Amount” is used for things that can’t be counted or measured. To write the following would be incorrect:  The amount of briefs that mixed up these words was higher this year than in the past.  It should read: The number of briefs that mixed up these words was higher this year than in the past.  I could count the briefs, if I wanted to.  However, I cannot count how stressed students were about having to finish their briefs.  Thus: The amount of stress the students felt in the days before the brief was due seemed to increase.

Farther/Further – I still mix these up, but I’ve come up with a mnemonic to help.  “Farther” has to do with geographical distance – as in far away.  So, use “farther” when you refer to geographical distance.  For example:  The new courthouse is farther north than the old one.  Use “further” for other additions. For example: Anne is further ahead in her reading than I am.

Since/Because/As – Writers use any or all of these to show cause-and-effect relationships. But not all of these words are best used for that purpose. “Since” can use be used for cause-and-effect relationships, but it also can carry a time component, as in, Since last week, we’ve had more sun than snow. “As” can also be used for cause-and-effect relationships, but it can also be used to mean “while,” and as such can be ambiguous.

Compare these:

Since the defendant was negligent, she should compensate the plaintiff.

Because the defendant was negligent, she should compensate the plaintiff.

As the defendant was negligent, she should compensate the plaintiff.

In all examples, the writer is meaning a cause-and-effect relationship between the negligence and the need to compensate the plaintiff.  Only the second sentence most clearly shows that relationship.  Therefore, use “since” for time-based ideas. “Because” is your best bet for cause-and-effect relationships and, for that reason, it is likely the word you should use the most in your writing.  Forget about “as.”

Among/Between – The distinction between “among” and “between” may be hard to tell, but choosing the correct term enhances not only the clarity of your writing, but also your ethos as a credible and knowledgeable writer.  As I demonstrated in the preceding sentence, “between” is used when discussing two concepts, objects, or people. You use “among” when discussing three or more concepts, objects, or people.  For example: It was difficult to select a winner among the teams in my bracket.

As Bill Walsh, copy editor for The Washington Post, writes in his book The Elephants of Style: A Trunkload of Tips on the Big Issues and Gray Areas of Contemporary American English (2004), “Language evolves, but at each instance in the evolution there will be ways of writing that will strike educated readers as ignorant.” Lawyers, as educated readers and writers, should know how to avoid coming across as ignorant in their professional work.

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10 Responses to “Commonly Confused Words: Knowing When to Choose the Right One”

  1. Melissa Greipp Says:

    Excellent post! So helpful.

    I like to think of non-restrictive clauses as the icing on the cake. You don’t need them, but they add value.

    Could you comment on the difference between who and whom?

  2. The long answer on the difference between “who” and “whom” involves defining and explaining grammatical terms like “subject” and “object.” Rather than complicate the discussion with those things, here’s a little trick to remember which word to use when. Ask yourself if you can substitute “him,” “her,” or “them” or if the answer to the question posed would be “him,” “her,” or “them.” If so, use “whom.” Then remember that “whom” is used for “him/them,” all of those words ending in “m.” (Obviously it can be used for “her,” as well, but it’s easier to remember the ends-in-”m” rule.) Compare: Who represents the defendant? The answer might be: She represents the defendant, so “who” is appropriate. On the other hand, “whom” is appropriate here: Whom does the defendant want to represent her? The answer here could be: The defendant wants them to represent her.

    Two resources for who/whom questions: (be warned: off-beat humor involved)

  3. Tom Kamenick Says:

    There is no formal hard-and-fast rule for the that/which distinction, although modern practice does favor the usage you describe.

    “Again, reasonable people have legitimate differences of opinion here. Scholarly works on grammar do not recognize any “rule” that would limit “which” to nonrestrictive clauses. Neither do standard dictionaries or Merriam-Webster’s Dictionary of English Usage.”

  4. @Tom – Perhaps so; however, every text or manual I have seen on legal writing maintains there is a distinction and recommends the “rule” I have set out. Even Bryan Garner agrees.

  5. Tom Kamenick Says:

    “A date that will live in infamy” just doesn’t have the same ring to it.

  6. Chris Flowers Says:

    Prof. Mazzie,

    Very useful information. What are your thoughts on the words “attain/obtain”?

  7. @Chris –
    “Attain” is to achieve or reach and “obtain” is to get. So you can attain your goal of graduating from law school, but you will obtain a law degree when you’re done. “Attain” is generally used with non-material things, but “obtain” is generally used with tangibles. Hope that helps!

  8. Matt Mitten Says:

    From personal experience as a young law firm associate, I can attest to the importance of understanding the that/which distinction. I drafted a 50-page 11th Circuit brief on a complex federal constitutional law issue and was bawled out by a senior partner for improperly using these words throughout the brief, even though she found no other grammatical errors and the contents of the brief was fine as is. An important lesson learned . . .

  9. Melissa Greipp Says:

    I agree with Prof. Mitten. Another pair of words that confuses people is verbal and oral. I learned as an associate that verbal refers to words and oral refers to spoken communication.

  10. The best rule about “whom” I have seen comes from William Safire: “When ‘whom’ is correct, rewrite the sentence.”

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