>> The Legal Writer #26

The Legal Writer #26

By Judge Mark P. Painter

“I love being a writer, what I can’t stand is the paperwork.”

—Peter De Vries

What De Vries may have meant is that it’s great, especially at cocktail parties, to be able to say your occupation is “writer.” (Though even better would be just to say your name and people would know you’re a writer).

Most people admire writers, because most people can’t write — or think they can’t. Many people would rather walk over hot coals than write for public consumption. Just as most people are terrified of public speaking, for the same reason: you put yourself in front of an audience — any gaff will be noticed. Writing is even more potentially embarrassing because the embarrassment is more permanent. Now more than ever — with most everything being posted on the Internet —mistakes live on forever. See the next section for my latest.

But we all must conquer that fear if we are to put the now-proverbial pen to paper, or, more probably, fingers to keyboard.

What De Vries might also have meant is that writing is hard work. Writing does not come easily, at least if you are anyone other than Elmore Leonard.

Reason For Fear

Speaking of errors, alert reader Wil Martin of Cincinnati picked up an error in my column-before-last (I describe it that way because the columns run at different times in different venues). It was the column about bad academic writing. I wrote that I had perused some academic writing to find the examples listed. Lo and behold, peruse doesn’t mean scan or browse, it means read carefully. I have always though it was the other way around.

The American Heritage Dictionary, third edition, published in 1992, only gives the definition, “To read or examine, typically with great care.” It goes on to add a “Usage Note” that mentions the second definition and says it is unacceptable to “sixty-six percent of the Usage Panel.” That same dictionary, in its fourth edition, published in 2000, repeats the entry. And “66 percent” of that same august body (though now 66 is in numericals) still disapprove. Methinks they didn’t revote.

Merriam Webster Online, though, gives us the following: “1 a : to examine or consider with attention and in detail: STUDY b: to look over or through in a casual or cursory manner” (punctuation is their form, emphasis mine).

That vindicates my theory that peruse has crossed over — the second definition, perhaps originally erroneous, has now, through usage, become acceptable. So I have authority that I was not wrong.

A cursory examination (perusal) of a month’s worth of cases from all jurisdictions finds peruse used 18 times. Though it is difficult to tell from some of the contexts, it seems the word is used for “scan” more often than not.

My preferred authority, Bryan Garner, while admitting that the browse usage has found a foothold, still frowns on the usage. I have three of Garner’s usage books (1995, 1998, 2003). The first one doesn’t even mention the scan definition. The second mentions it as error. The third admits that the definition is common enough to be included in some dictionaries — so even Garner is wavering. But he does say that, because the scan meaning is the opposite of the original, it should be “shunned.” So I defer to Garner and admit error. Any word that causes confusion should be avoided.

If you write, you will make mistakes. But that shouldn’t deter you — it obviously doesn’t deter me. Again, thanks to Wil Martin for pointing out the problem.


In each column, I list the two major readability statistics — remember that you can program your word processor to tell you these and more. Statistics for this column — my text only: 15 words per sentence, 10 percent passive voice. (Remember the 1818 Rule — no more than an average of 18 words per sentence and 18 percent passive-voice sentences.)


Mark Painter is a judge on Ohio First District Court of Appeals and an Adjunct Professor at the University of Cincinnati College of Law. He is the author of five books, including The Legal Writer 2nd Ed.: 40 Rules for the Art of Legal Writing. The book is available at the Ohio Bookstore in Cincinnati, Joseph-Beth Booksellers in Cincinnati and Cleveland, the Book Loft in Columbus, and from Lawyers Weekly Books at http://books.lawyersweekly.com. Judge Painter has given more than three dozen seminars on legal writing. Contact him through his website at  www.judgepainter.org.