5. Spelling and using the wrong word

`Words mean what I want them to mean'

The meaning of words can change over time, and words can take on different meanings in different contexts - e.g. `intercourse' in section 92 of the Constitution, compared with its usage in The Joy of Sex. However, words cannot take on whatever meanings you want to give them. If you are in doubt about the meaning of a word, look it up in the dictionary (a large book which lists the meanings of words, their usages and their origins).

Affect/effect

It's important to sort out the difference between verbs (`doing words') or nouns (`name words') in this context.
To affect something (verb) means `to have an impact on something', e.g. `taking that ecstasy really affected my exam performance' or, in a passive form, `my exam performance was really affected by that ecstasy'.<sup>5</sup>
To effect something (verb) means `to bring something about', e.g. `he single-handedly effected the changes to the law school curriculum' or, in the passive form, `the changes to the law school curriculum were effected by him single-handedly'.
an effect (noun) means `an impact', e.g. `that ecstasy really had an effect on me'.
an affect (noun, in psychology) means a feeling or emotion, as in `she suffered loss of affect after her breakdown'. This word would appear infrequently in law papers.

Tenet/tenant

A tenet is a principle or doctrine. A tenant is a leaseholder, a person in rented accommodation or, in mediaeval property law, the person who held land of the Crown. Despite repeated student assertions to the contrary, there are no such things as `the fundamental tenants of the common law'.

Led/lead

To lead (pronounced `leed') means `to conduct or take along the way', as in `my dog is leading me for a walk'.
led (pronounced `led') is the past tense of `lead', as in `my dog led me for a walk yesterday'.
lead (pronounced `led') is a heavy metal found in the petrol used in old cars.

Principle/principal

A principle (noun) is a norm or rule (a tenet!). A principal (noun) is the head of a school, the person with whom a law graduate signs articles of clerkship or, in contract law, a party to an agency agreement. `The principal issue before the court' is the main issue in to be decided. There is no such thing as `the principle issue'.

Aloud/allowed

These are not the same word. Aloud means `out loud', as in: `I voiced my anxieties aloud'. Allowed means `permitted', as in: `Their mother never allowed them to watch Melrose Place' or `His disability never allowed him to walk again'.

Advert/avert and adverse/averse

To advert (to something) means to refer to it.
To avert (something) means either (a) to turn (something) away, as in `to avert one's eyes' or (b) to ward something off, as in `we averted a catastrophe'.
Adverse means `opposed' or `antagonistic', as in `adverse criticism', `adverse possession'.
Averse means `reluctant', as in `he is not averse to smoking marijuana for breakfast'.

Peninsula/peninsular

A peninsula (noun) is a piece of land which juts out into the sea, e.g. Mornington Peninsula in Melbourne.
Peninsular is the adjective (describing word) formed from peninsula. It means 'of a peninsula', as in 'peninsular inhabitants' or 'peninsular history' (a term sometimes used to refer to the history of the Iberian peninsula (Spain and Portugal).

Council/counsel

A council is a body of people, usually charged with specific business - e.g. a council of war, Newcastle City Council, the New South Wales Aboriginal Land Council, the Drug and Alcohol Council of Australia, or the (Judicial Committee of Her Majesty's) Privy Council. Although it is usually composed of many people, a council is a singular entity.

The noun counsel (singular or plural) refers to barristers in legal proceedings. Judges often address barristers simply as 'counsel', regardless of their name or gender. We also refer to 'defence counsel' or to 'counsel for John Elliott, Mr Jeff Sher QC and his junior'.

Counsel comes from the verb to counsel, which means 'to advise'. Thus we refer to the University counselling service. A person who 'keeps her own counsel' is someone who keeps her opinions to herself.

There/their/they're

Use the dictionary if you are unsure about the difference between the first and second of these. They're is a contraction (ie, an abbreviated form, with something taken out of the middle) of `they are'.

Your/you're

Your is the possessive form of `you', as in `that's your book - don't leave it behind'. You're is a contraction (abbreviated form) of `you are'. Thus:

Practice/practise, licence/license and advice/advise

Although American usage is different, in Australian English, to practise is the verb (`doing word') or adjective (`describing word'), and practice the noun:

`We are practising for the "being eaten by a crocodile" competition.'
`His was a well-practised line in seduction.'

`She operates a lucrative chiropractic practice.'
`My singing teacher screamed at me for being late for practice.'

The same rule holds for licence/license and advice/advise. Thus:

`Alston Holdings' tobacco franchise operation was licensed by the state government.'
`The state licensing regime was held invalid in Ha v NSW.'

`The state government granted Alston Holdings a tobacco franchise licence.'

The holder of a licence is called a licensee.

`Advise B' or `How would you advise B?'

`What is your advice to B?'

Attain/obtain

To attain means `to arrive at (something)', as in `I am determined to attain my goals'.
To obtain means `to get (something)', as in `I am determined to obtain that book'.

Prescribe/proscribe

To prescribe means `to set out' or `to require', as in: `The regulations prescribe the payment of a $200 fee' or `The doctor routinely prescribed Valium for constitutional law students'. Hence prescription is the word used to describe a doctor's request to a pharmacist or the manner in which legal standards are laid down in regulations.

To proscribe means almost the opposite - `to prohibit' or `to outlaw', as in: `The Menzies government attempted to proscribe the Communist Party'.

Precede/proceed

To precede means `to come before', as in: `The 1999 Star Wars movie precedes the episodes which have already been released'.

To proceed means `to go forth' or `to go ahead', as in: `Shall we proceed with this meeting?' or (in the language of police officers) `We proceeded in a northerly direction along Northbourne Avenue'. The term `legal proceedings' refers to litigation before a court. There is no such thing as `legal precedings'.

Compliment/complement

To compliment (someone) means to praise, flatter or congratulate them. `To pay someone a compliment' means to say something nice about them, whether sincerely or not. `With compliments' on a note with a gift or enclosure indicates that it is sent as a favour. `Complimentary' can mean `free', as in `We got complimentary tickets to the Olympics synchronised swimming final.'

To complement means to complete, make perfect, or (colloquially) match, as in `Prince Edward and Sophie Rhys-Jones really complement one another' or `He drank his full complement of alcohol'. `Complementary' means `that which is required to complete something'. It cannot be used to refer to ticket `freebies'.

Discreet/discrete and discretion

Discreet means wise, judicious or restrained. It is sometimes used to mean `secretive'. Thus:

The noun built from `discreet' is discretion. Hence the saying `Discretion is the better part of valour' - circumspection or restraint is an important part of courage. However, because discretion really refers to wise or judicious behaviour, in law we use the term to refer to the power to decide something by exercising one's own judgment. Thus:

`Section 47 confers a discretion on the Minister for Family Services.'

`The Board's power to confine a person under the Mental Health Act is highly discretionary.'

(We do not, however, talk about people invested with discretion exercising it `discreetly'.)

Discrete looks as if it comes from the same word base as `discretion', but it means something different. It means detached, separate or distinct, as in:

`At the ANU, constitutional law is studied in two discrete units.'

Dependent/dependant and depending

To be dependEnt on someone means that you rely on him or her. Dependence or dependency refers to the state of being dependent on someone or something - as in `She suffers because of her dependency on her boyfriend.'

You should not use `dependent' where you mean `depending' to signal the contingency of one event on another. For example, you should write:

`Depending on the outcome of the League game, I might get lucky tonight.'

NOT

`Dependent on the outcome of the League game, I might get lucky tonight.'

DependAnt (a noun) refers to a person who is dependent on another, as in: `Her household consists of Eustacia, her husband and several other dependants.'

Enunciate/annunciate

To annunciate means `to announce', but carries a religious connotation. In Christianity, `The Annunciation' refers to the angel Gabriel's announcement to Mary that she would become the mother of Christ. Draw your own conclusions about the suitability of this term for a law paper.

To enunciate means `to pronounce' or `to state or declare definitively', as in:

`Abba's music was known for Agnetha and Frida's clarity of enunciation.'

`In its unanimous decision, the High Court enunciated a new test of forseeability.'

Prospective/perspective

Prospective means `of the future' or `potential' or `anticipated', as in `my prospective husband' or `a statute with prospective [ie, the opposite of retrospective] operation'.

Perspective has several related meanings, but those most likely to occur in a law paper are `point of view', as in:

`The judges should look at the issue from the defendant's perspective.'

or `true proportion', as in:

`It is important to understand the Mabo (No 2) decision in perspective. Most land in Australia has been alienated historically, with the result that most native title has already been extinguished.'

Imply/infer

The meanings of these words overlap, but each has a distinct meaning.

To infer means `to derive by reasoning from premises or evidence', as in:

`I inferred from the fact that he never came to work that he had died.'

In the law of evidence, an inference refers to a conclusion with some probability, whether or not it is strictly derived logically from the premises on which it is based.

To imply means `to indicate or suggest an obscured meaning or conclusion', as in:

The difference between the two terms is subtle, but might be thought about like this. Inferring involves value-adding - processing information to produce a conclusion which wasn't there before - whereas implying involves hinting at, or discovering, something which already exists but remains unexpressed.

To imply has another related meaning. It can mean `to involve as a necessary circumstance', as in:

`Issuing police with weapons implies a Commissioner's decision to treat the crowd as hostile.'

Debatable/doubtful

Students often use the word debatable (often misspelt `debateable') to indicate that a proposition is uncertain or in doubt. However, debatable means `capable of being debated' or `in dispute', whereas doubtful means `uncertain'. For example:

`Whether or not John Howard should resign is debateable.'

`In the circumstances, it is doubtful whether the Governor-General enjoys power to sack John Howard.'

Its/it's

It's needs an apostrophe when it is a contraction (abbreviation) of `it is'.

e.g. `It's a lovely day, isn't it?'

`Its' does not need an apostrophe when it is used possessively. This seems to run contrary to the general rule about possessive apostrophes (discussed below) but `its' is an exception to that general rule! `Its' is like `his', `her' or `their' - a possessive form of a pronoun (a word which stands in for a noun):

e.g. `We cornered the alien, and chopped its head off.'

Where it might have been possible to write, were the alien's sex known or knowable:

`We cornered the alien, and chopped her head off.'

Note that there is no such word as `its'' with an apostrophe after the `s'.

Who/whose/who's/which

`Who' is used for people. `Which' is used for things. In deciding which of these words to use, ask yourself whether you are dealing with a person or a group of people:

e.g. I complained to the head of ATSIC, who sent me a reply.
I complained to ATSIC, which sent me a reply.

`Whose' is the possessive form of `who'. According to the Macquarie Dictionary, it can also be the possessive form of `which':

e.g. `Whose book is that?'
`A car whose tyres are flat', meaning `A car the tyres of which are flat.'

`Who's' is not the same word. `Who's' is a contraction (abbreviation) of `who is':

e.g. There's the hopeless lawyer who's running the test case.

Less/fewer and amount/number

The checkout sign in Woolies that says `15 items or less' is not correct. Where you refer to a number of single items, you need to use `fewer', not `less'. `Less' indicates a smaller amount of a single thing.

e.g. `We drank less beer than last time.'
`We drank fewer bottles than last time.'
`I spent less money than he did.'
`He bought fewer magazines than I did.'

Similarly, `amount' is used to indicate quantities of commodities or intangibles which are considered to be made up of the same thing (e.g. money, coffee, flour, time, attention), whereas `number' is used to indicate quantities of independent items.

e.g. `There were a large number (not `amount') of people in the room.'
`He gave me a large amount of money.'
but: `He gave me a large number of coins.'

Either/or and neither/nor

These words are used in limited circumstances to indicate choices between things. Note that `nor' cannot be preceded by `either', only by `neither', as the `neither/nor' combination signals a set of negative choices:

e.g. `I must take either Property or Criminal Law this year.'
`I want to take neither Property nor Criminal Law this year.'
`Neither the lecturer nor the students liked the assessment package.'

Making comparisons - use the right preposition

There are correct and incorrect ways of using words like `compared', `different' and `similar'. The correct forms are:

compared with (not `compared to')
different from (not different to')
similar to (not `similar with')

Different words built from the same base

If different words have been built from the same word base, they may have different meanings. For example, the adverb `alternately' means `by turns':

e.g. He ate ice cream and parmesan cheese alternately.
The traffic lights flashed alternately between red and green.

But `alternatively', a word more likely to occur in a law paper, refers to a choice between two things or possibilities.

Sometimes students encounter difficulties building words from their base:

If in doubt about the right spelling of words like this, check the dictionary.

Words stuck together

There is no such word as `alot'. `To allot something' means to allocate something. `A lot' (two separate words) means `many'.

Similarly, there is no such word as `alright'. It should be two words: `all right'. The same goes for `infact' - it should be `in fact'.

Words fragmented

Some words have developed as composites of several words run together. In modern English there is no need to break them up again. Examples include:

Nevertheless, not `never the less'
Nonetheless, not `none the less' (although `none-the-less' is still sometimes used)
Nothwithstanding, not `not with standing'

Negative or positive?

The words `no' and `not' are often added before words to signify their negative forms, as in:

`The Sub-Dean took no account of my football training commitments.'
`The Supreme Court ruled that an employer who did not take reasonable steps to provide a safe workplace was liable.'

It is amazing how often people leave `no' or `not' out of such sentences, conveying the opposite of their intended meaning.

Many words can be turned into negatives by the addition of a prefix (a new front end of the word) or a suffix (a new rear end). Examples of negative prefixes include `non', `un', `in', `ir' and sometimes `a'. It is important to choose the right prefix, e.g.:

inhospitable, not `unhospitable'
ahistorical, not `unhistorical'
uninhabited, not `non-inhabited'

Sometimes using a different prefix may change the meaning slightly. For example, immoral means `not conforming to moral standards'. Used to describe a person, it can mean someone who understands moral standards but departs from them. On the other hand, amoral means `without morality'. Used to describe a person, it can signify someone who does not understand moral standards and has none from which to depart. Similarly, uninterested means `lacking in interest', as in `I am really uninterested in your money problems'. But disinterested means `impartial, unbiased', as in `Let's hope the umpire is disinterested'.

A negative suffix is `less', which means `without'. For example:

regardless
childless
countless

Note that there is no such word as `numberless'.

In physics, two negatives make a positive. It's the same in English. However, while two `not's in a sentence looks silly, one `not' followed by a word with a negative prefix is sometimes used where a more subtle or understated meaning is intended. For example, it is possible to `damn someone with faint praise' by saying he or she is `not unfriendly', which does not quite go so far as to suggest that the person is friendly. The use of `not uncommon' in the sentence below provides another example.

Do not use a negative prefix and a negative suffix for the same word. A not uncommon (sorry, but it's neither common nor uncommon!) example is `irregardless'.

If in doubt about negative forms of words, consult a dictionary.

Words which half the population spells incorrectly

Here are some words which more than 50 per cent of students seem to spell incorrectly:

separate, not `seperate'
relevant, not `relevent'
accommodation, not `accomodation'
harassment, not `harrassment'
argument, not `arguement'
definitely, not `definately'
implement, not `impliment'
occasion, not `ocassion'
debatable, not `debateable'
prerogative, not `perogative'

Ye olde terminology

Some student papers employ words which are becoming archaic, apparently because they sound better. For example, `whilst' is commonly used when `while' would be preferable.

Does size matter?

Students often seem to choose words for no better reason than that they are longer or sound more bombastic. A common example is `utilise' instead of `use'.

Confusion of adjectives and nouns

`Women' and `men' are nouns. `Female' and `male' are adjectives. A male person is a man. Thus it is not correct to write `males shouldn't be allowed into Law School'. Similarly, `Aborigines' is a noun; `Aboriginal' is an adjective. An Aboriginal person is an Aborigine. (This usage is complicated by the fact that some Commonwealth and state legislation uses `Aboriginal' as a noun.)

Get the judge right

You might have understandable trouble with Mr Justice Hardie Boys (NZ Court of Appeal), Lord Morris of Borth-y-Gest or Lord Jauncey of Tullichettle. Even Mr Justice Gobbo of the Victorian Supreme Court might suffer a little from misspelling.

However, it is a good idea to spell judges' names correctly. Try to notice how their names are spelt when you read cases. Current and former Australian High Court judges whose names are regularly misspelt include Justices Fullagar (usually misspelt `Fullager or Fullaghar'), Stephen (usually misspelt `Stephens'), Deane (misspelt `Dean') and Gaudron (sometimes misspelt `Guadron' or even `Gauldron' (see below)). Don't forget to put a `J' (or `CJ' if appropriate, or `JJ' for more than one judge) after the judge's name, not before it.

Other people's dumb mistakes

Few things are more infuriating for the person marking essays than encountering the same dumb mistakes in several papers. A common example - one probably traceable to old exam summaries - is `Justice Gauldron'.

5 Another use of to affect is fairly rare - it can refer to people putting on airs, as in `he affected an injured expression', which means `he tried to look injured'.