The Supreme Court of Ohio Writing Manual
Commonly Misused Words and Phrases
2nd Edition, effective July 2013

Flashcards

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1. Above; above-cited; above-mentioned; above-quoted, etc.In general, avoid these designations and use more specific references, e.g., the case or the court being referred to.
2. Accord; accordance."In accord" means in agreement. For example, “Our holding is in accord with the holdings of other courts in Ohio.” "In accordance" means in conformity or compliance with. For example, “The officer conducted her search in accordance with constitutional standards.”
3. Adduce; deduce; educe." Adduce" means to offer as proof. For example, “The state failed to adduce evidence of prior calculation and design.” "Deduce" means to infer. For example, “The indictment was adequate for the defendant to deduce information necessary for his defense.” "Educe"
means to draw out. For example, “It was proper for trial counsel, on direct examination, to educe the defendant’s complete account of what occurred."
occurred.”
4. Affect; effect."Affect" as a verb means to influence or act on. For example, “Her attempts to affect the legislative process were unsuccessful.” “The wound affected his ability to walk.” "Effect" as a noun means result. For example, “The legislation had the desired effect.” Used as a verb, effect means to achieve or bring about. For example, “The mediator sought to effect a settlement.”
5. Afterward; afterwards.Afterward is preferred.
6. Alleged; ostensible; purported."Allege" means to assert something as true without having yet proved its truth; used as an adjective, alleged means accused or claimed to be as asserted; supposed. For example, “In her complaint, the plaintiff alleged that her employer owed her money; she identified her boss as the alleged perpetrator of the fraud.” "Ostensible" means apparent, but suggests that appearance may not may not reflect reality. For example, “The attorney’s ostensible reason for attending the conference was legal education.” "Purported" means supposed, assumed to be such, reputed: “The purported author.”
7. Alternate; alternative.When used as a noun, "alternate" means a substitute or something that occurs or succeeds by turns. When used as an adjective, "alternate" means every second one or substitute. For example, as to the latter meaning, “The defense presented alternate jury instructions.” An "alternative" is a choice, usually one of two choices. When used as an adjective, alternative means mutually exclusive. For example, “Although the defendant claimed that she did not intend to shoot the victim, she argued that counsel should have presented the alternative theory that she shot the victim in self-defense.” Alternative can also mean affording a choice, as in “The committee offered several alternative plans.”
8. Amicus brief.
The plural of amicus brief is amicus briefs, not amici briefs.
9. Amicus curiae."Friend of the court." The plural of amicus curiae is amici curiae.
10. Appendices; appendixes.
Either spelling is acceptable as the plural of appendix.
11. Approvingly cited.Use "cited with approval." For example, “This court has cited with approval a three-pronged test concerning warrantless entry in emergency situations.”
12. Around.Use the more formal "about" or "approximately."
13. As; because; since."Because" is the preferred choice to indicate causation; "since" is also acceptable. For example, “Because [or Since] the trial court did not consider these issues, we decline to address them on appeal.” To avoid confusion, do not use "as" to mean because.
14. As such.Use "as such" to refer to an object or idea just expressed. For example, “The juror was a military officer and, as such, was a natural for the role of foreman.” Do not use "as such" merely to connect sentences or phrases or as a substitute for "therefore."
15. Assure; ensure; insure."Assure" means to convince another of something. For example, “The defendant assured the victim that the basement was safe.” "Ensure" means to make sure or certain. For example, “The will ensures her daughter’s comfort for life.” "Insure" means to provide insurance. For example, “He insured his home for more than it’s worth.”
16. Attorney fees.Use attorney fees, not attorney’s fees or attorneys fees.
17. Between; among."Between" indicates a one-to-one relationship, even if there are more than two objects at issue. For example, “The bonds between the three defendants supported a united front for the jury.” "Among" indicates a collective or undefined relationship. For example, “The consensus among the three defendants was that they had been framed.”
18. Cite; cite to; citation."Cite" is a verb and, in most legal contexts, means to refer to or offer as an example or authority. Use "cite," not "cite to." For example, “Defendant cites Miranda as support for his arguments.” "Citation" is a noun and is preferred over "cite," where appropriate. For example, “Appellant offers a single citation in support of his theory.”
19. Clearly; obviously.Avoid using "clearly" and "obviously" as mere intensives.
20. Compose; comprise."Compose" means to form or produce. For example, “Six Ohio counties compose the Second District Court of Appeals.” "Comprise" means to include or contain; therefore, the phrase "comprised of" is always wrong. For example, “The Second District Court of Appeals comprises [or is composed of] six counties.”
21. Convince; persuade."Convince" indicates a mental state. For example, “Defense counsel convinced the jury that his client was innocent.” "Persuade" indicates a resulting action. For example, “Counsel persuaded the jury to return a defense verdict.”
22. Decision; judgment; opinion.Judges and courts make and issue decisions and judgments. They write opinions to justify decisions and judgments. For example, “The trial court’s opinion fails to explain its decision granting summary judgment.”
23. Finding; holding.A court makes findings on questions of fact and holdings (or conclusions) on questions of law. For example, “Because competent, credible evidence supports the trial court’s findings, we hold that appellant was entitled to judgment as a matter of law.”
24. Historic; historical."Historic" means famous or important in history. For example, “The opening of the new Supreme Court building was a historic occasion.” "Historical" means of or relating to history. For example, “The trial court denied plaintiff’s request to submit historical data concerning other jury awards.”
25. Hobson’s choice.A "Hobson’s choice" is an apparently free choice that offers no real alternative. Do not use it to refer to a difficult choice.
26. Hopefully."Hopefully" means in a hopeful manner. Do not use it to mean it is hoped.
27. Identical with; identical to.Both are correct.
28. Impact.Use "impact" only as a noun. For example, “The impact of the defendants’ actions was widespread throughout the community.” Rather than using "impact" as a verb, use affect or, as appropriate, touch, sway, or influence. For example, “The defendants’ actions affected the community.”
29. Imply; infer."Imply" means to indicate or express indirectly. For example, “This language implies that a court may dismiss the claim if the conditions are met.” "Infer" means to arrive at a conclusion from facts or premises. For example, “We can infer from the applicant’s failure to disclose three prior terminations that she intended to deceive the review board.” Speakers and writers imply; readers infer.
30. Irregardless.Use "irrespective" or "regardless."
31. Issue of whether.Use "issue whether." For example, “This appeal presents the issue whether the trial court abused its discretion by overruling plaintiff’s objection.”
32. Its; it’s."Its" is the possessive form of "it". For example, “A court speaks only through its journal.” "It’s" is the contraction of "it is" or "it has."
33. Method; methodology."Method" means a process for attaining something. For example, “The Supreme Court has clarified the method must use to assign responsibility in multiple-employer situations.” "Methodology" means the study of methods.
34. Must; shall; may."Must" and "shall" mean "is required to." For example, “All parties must follow the Rules of Civil Procedure.” “The plaintiff shall serve the defendant within 30 days.” "May" means "is permitted to." For example, “The plaintiff may serve the defendant personally.”
35. Pleaded; pled."Pleaded" and "pled" are both acceptable, but be consistent.
36. Posit."Posit" means to state as a premise; to postulate. For example, “The prosecutor’s theory of the case posited a common motive for the crimes.” "Posit" is not synonymous with present, argue, or state.
37. Practical; practicable."Practical" means useful or nontheoretical. For example, “The trial court imposed practical procedures for concluding discovery.” "Practicable" means feasible. For example, “The company challenged the agency’s assertion that the pollution-control guidelines were practicable.”
38. Prescribe; proscribe."Prescribe" means to dictate. For example, “Through this statute, the General Assembly prescribed a strict method for determining whether the actions were lawful.” "Proscribe" means to forbid. For example, “Through this statute, the General Assembly proscribed this conduct altogether.”
39. Rebut; refute."Rebut" means to contradict. For example, “The defendant rebutted the witness’s testimony by presenting his own witness.” "Refute" means to prove wrong. For example, “The videotape image of the defendant refuted his claim that he had never been there.”
40. Refer; reference.In legal contexts, "refer" typically means to direct attention to. For example, “He referred to his relationship with the codefendant only in passing.” "Refer" is not interchangeable with "reference," which, used as a verb, means to supply with references. Do not use "reference" to mean cite, mention, or refer to.
41. Remand; remand back.Use "remand" alone. For example, “We remand this case to the trial court for a new hearing.” The issuance of a writ of mandamus to an agency does not constitute a remand to the agency.
42. Respective."Respective" means separate or particular. It is often an unnecessary adjective and may be deleted. For example, “The parties argued their positions,” not “their respective positions.”
43. Said; the said.Avoid referring to an object, person, or idea as "the said" object, person, or idea. Use more specific references, such as the, that, this.
44. Saving clause; savings clause.Use "saving clause," not savings clause. For example, “Both federal acts contain broad saving clauses that preserve rights and remedies existing outside the securities arena.”
45. Scenario."Scenario" refers to imagined events. It is not synonymous with situation.
46. Survival action; survivorship.An estate pursues a "survival action" to recover for the decedent’s pain and suffering before death and for other associated losses. "Survivorship" is a right that arises by virtue of a person having survived another person with a joint interest in property.
47. That; which.Use "that" to introduce an adjective clause containing essential information about the preceding noun, i.e., a clause that cannot be eliminated without changing the meaning of the sentence. For example, “A business that violates environmental laws should be
punished.” Use "which" to introduce clauses containing supplemental information, i.e., clauses that are set off by commas and could be eliminated without changing the meaning of the sentence. For example, “The business, which violated environmental laws, should be
punished.”
48. Tortious; tortuous; torturous."Tortious" means involving a tort. For example, “Plaintiffs complained about defendants’ tortious conduct.” "Tortuous" means marked by repeated twists or turns. For example, “The court found that defendant’s tortuous explanation of his whereabouts lacked credibility.” "Torturous" means causing torture.
49. Toward; towards.Toward is preferred.
50. Upon.Generally, use "on" instead.
51. Verbal; oral."Verbal" refers broadly to words, written or spoken: “The student’s essay amply demonstrated her verbal skills.” "Oral" is narrower and means spoken. For example, “The parties had an oral agreement to settle the case.”
52. Verbiage."Verbiage" means an excess of words with little value.
53. Whether; whether or not.Use "whether" alone. For example, “The trial court had discretion to determine whether the defendant was telling the truth.” An exception applies when the "whether" clause is an adverb. For example, “The judge had decided in advance to disbelieve the defendant, whether or not the defendant was telling the truth.”

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