I’ve previously posted on words that writers, particularly lawyers, commonly confuse. Those posts are here (that/which/who, more than/over, few(er), less, amount/number, farther/further, since/because/as, among/between, who/whom, attain/obtain), here (a/an/the, counsel/council, e.g.,/i.e., it’s/its, principal/principle, then/than, utilize/use, you’re/your, affect/effect, tortious/tortuous, tack/tact, capitol/capital, motioned/moved, flesh/flush), here (although/while, assure/insure/ensure, complement/compliment, rational/rationale), and here (a couple, a few, some, several, and many).

Today, I’ll cover seven more pairs of commonly confused words.

Born/borne – Both words are past participles of “to bear”; however, only one relates to birth. Use “born” when referring to literal or figurative birth, such as: She was born in California or Wisdom is born from years of experience. “Borne,” on the other hand, refers to the other meanings of “to bear”: such as, to carry, to produce, or to bring about. “Borne” would be proper in the following: Costs associated with this litigation will be borne by the defendant.

 Good/well – “Good” is an adjective, “well” is an adverb. That is, “good” describes and “well” modifies or qualifies. A good lawyer writes well. “Good” in that sentence describes the noun, “lawyer.” (What kind of lawyer? A good one.) “Well” qualifies the verb “writes.” (How does the lawyer write? Well.) The exception to this good/well distinction involves health. If you’re asked How are you?, the grammatically correct answer would be I am well (i.e., your health is good).

Do not use “good” to modify a verb. We might say That lawyer is good at writing, but we certainly wouldn’t say That lawyer writes good.

 Lay/lie – My wonderful colleagues Anne Enquist and Laurel Currie Oates from Seattle University have best explained the distinction between these two words in their book Just Writing: Grammar, Punctuation, and Style for the Legal Writer (4th ed. 2013). I am drawing from their explanation nearly verbatim but for style changes to fit the form here.

“Lay” means to “put, place, or set down.” “Lay” is a transitive verb, which means it must have an object. Something must be put, placed, or set down. For example: Just lay the file on my desk.

“To lie” means “to recline or remain.” “Lie” is an intransitive verb, which means it does not have an object. Someone or something reclines or remains. For example: The file will lie unopened on my desk until the bill is paid.

Pair/pare/pear – A “pair” is a set of two objects. “Pare” is a verb that means to trim something or to reduce its size. A “pear” is a piece of fruit. Anna needs to pare down her brief before she files it means that Anna has to make some cuts or changes to reduce the length of her brief. She would not “pair down” or “pear down” her brief.

Peak/peek/pique – I always give mental bonus points to the people who correctly use “pique.” It’s so often misused. “Peak” is a noun that means the highest point, like the peak of a mountain or the peak of a career. “Peek” is a verb that means a quick glance, like Let me take a peek at the bill before you pay it. These two often get mixed up, but when you add “pique,” things really get mixed up. “Pique” as a noun means a fit of resentment; as a verb it means to annoy or to arouse interest.  So, for example, after an argument, I might be in a pique (a noun). More often, though “pique” is used as a verb and here’s where it gets oh-so-mixed up with the other two words. If I’ve written something particularly compelling, my writing might pique the reader’s interest. That is, it might have aroused her interest. I do not peak her interest.

Precedent/precedence – I’ve seen a number of students write something like, The court should follow precedence and hold for plaintiff. Such a usage is incorrect. For lawyers, “precedent” refers to a case that has preceded (come before) the case with which the lawyer is currently dealing, and that previous case may guide a current court on the same issue. Courtney is researching precedent on that issue.  Plural “precedent” is “precedents,” though it seems to me that lawyers tend to use “precedent” in cases of singular and plural cases. The sentence above is a good example. Courtney may be looking for a single case, but she may be looking for a number of previous cases.

However, law students (and some lawyers) might be confusing the plural form “precedents” with “precedence.” Hence: The court should follow precedence and hold for plaintiff. “Precedence” has to do with ranking in order of importance or urgency, with something more important or urgent having “precedence” over something less important or urgent. My brief takes precedence over Jim’s brief because my brief is due earlier. That is, I’m saying my brief is more important or urgent.

Now that we’ve established the difference, let’s fix the sentence I started with: The court should follow precedent and hold for plaintiff.

Whether/whether or not – The word “whether” expresses some doubt, and it is often used with “or not,” as in We should find out whether or not the law firm is hiring. In that sentence, it is unknown if the law firm is hiring. Maybe it is. Maybe it’s not. The word “whether” itself, though, because it expresses doubt, implies an “or not”; thus, the “or not” is redundant. It’s more concise to simply say We should find out whether the law firm is hiring. Maybe it is. Maybe it’s not.

I can think of only one circumstance where “whether or not” is useful and that is where the writer is expressing not doubt but certainty. That is, I’m going to the conference whether or not Stephen attends. That sentence shows the writer’s certainty: it doesn’t matter if Stephen goes to the conference; the writer definitely is. However, where the writer is using “whether” more equivocally, “or not” is unnecessary in writing.

Next week, I’ll cover another set of commonly confused words!