Language tips

Q: Two questions have haunted me for some time. First, isn't the proper term pled rather than pleaded? Second, shouldn't one say/write proven rather than proved?

A:Despite the apparent preference of some lawyers for pled, the preferred past tense of plead is pleaded. The current volume (through 2006) of Words and Phrases does not list pled as the past tense of plead. It lists only pleaded in a number of contexts, including “pleaded as a defensive matter” and “pleaded or otherwise defended.”

Of the two forms, pleaded is the earlier. The Oxford English Dictionary (OED) lists it as a legal term as early as 1305, and it was used several times in the Statute of Pleading, enacted by the English Parliament in 1362. On the other hand, pled was not listed until 1596 – and in a poetic, not a legal context, Spenser's “Faerie Queene.”

In this country, the great lexicographer Noah Webster denounced the past tense pled, although he acknowledged that many lawyers used it “colloquially” in New England. (He seems to have disliked pled for no reason other than what he calls “a long preference” for pleaded in England.) But Webster, who defined himself as “a lexicographer – a harmless drudge,” was dogmatic in his decisions about language, so you can safely use either pled or pleaded as a past tense of plead without fear of being misunderstood.

As to whether the correct form is proved or proven depends on whether you are using the term as a past participle (proved) or as an adjective placed before a noun (proven). Use proved in contexts like: “the prosecutor proved beyond a reasonable doubt ...”; or “the defendant proved his innocence.” Use proven in contexts like: “he demonstrated a proven talent.” The majority of the elite “Usage Panel” of The American Heritage Dictionary considers that proved is the only form as the past participle, but the Panel acknowledges that proven is “a Scottish variant made familiar through its legal use.” Words and Phrases cites 14 contexts in which courts preferred proved compared to only four contexts for proven, all citations obeying the dictionary edict that proved is a participle and proven an adjective. The contexts cited by Words and Phrases included, “teacher's proved misconduct,” “proved by the defense,” and “proved to the satisfaction of the court.” The cites for proven included, “ proven facts,” and “proven circumstantial evidence.” However, courts use proven as a participle in the passive voice, in phrases like “innocent until proven guilty.”

But both forms are clear and understandable. But for propriety, you may want to accept the preferred usage, “He has proved his point,” but, “This is a proven fact.” My thanks to Chicago attorney Merkys I. Gomez, for his questions, which have yielded some surprising results.

Q: How do you recommend handling verbs like, “Has he or will he take a position on that issue?”

A:As written, the question is still considered ungrammatical. The tense of the first verb cannot be omitted when it differs from the tense of the following verb. As the sentence is formed, the deleted verb tense is presumed to be the same as the tense of the verb in the following clause and the result would be: “Has he take a position on that issue”? Since that construction is incorrect, the past participle of the first verb must be included. So the sentence should read, “Has he taken or will he take a position on that issue?”

But although the sentence the correspondent submitted is ungrammatical, that kind of deletion is so widespread, especially among newspaper journalists, that it will probably become acceptable in the near future. The standards are that for language to be acceptable, it must be widespread (understandable), current, and reputable. Assuming arguendo that the first two standards have been met, the question is whether the language in question is “reputable.” To meet that standard, the language must be acceptable to a wide majority of educated users. The sentence that the correspondent quoted has not yet – in my opinion – met the third standard: widespread acceptability by educated users. So educated users should continue to follow the traditional rule.

Q: My question regards the use of and in stating years and currency amounts. Is the pronunciation of the date 2007 as “two thousand and seven” acceptable although its literal meaning would then be 2000.7? Also, what about stating amounts of currency as three hundred and 24 thousand dollars, which could literally be “300,000. 24"?

A: Champaign attorney Mark C. Palmer's question stumped me at first, and even after thinking about it and checking the opinions of some knowledgeable persons, the only answer that occurs to me is that both of the pronunciations are idiomatic, and seemingly do not puzzle those who hear them. Idioms are defined as usages that may be illogical, but are understandable by the general public. If there are better explanations, send them on. Mr. Palmer and I would welcome them.

FROM THE MAILBAG:

After reading last month's column about the question about “sloppy language,” Chicago attorney Dick Bales wrote that he has also noted that the phenomenon of nouns becoming verbs is common. His brother, a college librarian, tells him that everybody now “scrapbooks,” and that professors tell their students “to journal.” Mr. Bales comments that novelist Janet Evanovich's heroine Stephanie Plum “remotes” her garage door and “elevates” (i.e., uses the elevator) to the top floor of her building.

Interestingly, the word remote was originally an adjective; then it became a noun (as in, “Where's the remote?”) and has now become a verb. Who says language is boring?

Gertrude Block is Lecturer Emerita at the University of Florida College of Law. Her book ,”Legal Writing Advice: Questions and Answers” (William S. Hein & Co., Inc.) was published in December 2004. Ms. Block is also author of “Effective Legal Writing”, 5th Edition (Foundation Press), with an accompanying instructor's manual. She is co-author of the “Judicial Opinion Writing Manual” (published by the American Bar Association, 1991). Send questions to the ISBA Bar News – Language Tips, Illinois State Bar Association, Illinois Bar Center, Springfield, IL 62701, or e-mail her at block@law.ufl.edu.