June 2005
Words About Words
by Robert C. Cumbow
This past January was a great month. It brought not one but two occurrences of an event for which I’d been waiting years: cases whose outcome turned on the distinction between “which” and “that.”
Here in Washington, our Division III Appellate Court found in a criminal sentencing matter that a plea bargain agreement “supports the trial court’s finding that the parties intended a determinant 90-month recommendation, not a variable number tied to the bottom of the standard range.” The court cited the language of the agreement, which referred to “a joint recommendation to an exceptional sentence downward of 90 months incarceration, which is 5 months below the low end of the standard sentencing range . . . ” [emphasis in original].
The court’s analysis: “A restrictive adjective clause would not contain a grammatically incorrect comma and read, ‘. . . that is 5 months below’ . . . Although ‘which’ and ‘that’ are both relative pronouns, ‘that’ is used solely with restrictive clauses while ‘which’ is usually preferred in nonrestrictive clauses.” State v. Lathrop, 125 Wn.App. 353 at 362 (Wash. App. 2005) [emphasis in original].
At issue in the other case, in Pennsylvania, was a board’s removal of one of its members. The authority for the action was a statute that read:
. . . the board of directors may declare vacant the office of a director if he is declared of unsound mind by an order of court or is convicted of a felony, or for any other proper cause which the bylaws may specify . . .
The dismissed member challenged the board’s action on the grounds that he had not been declared of unsound mind or convicted of a felony, and there was no other proper cause specified in the organization’s bylaws that justified his removal. The board argued — and the court held — that the phrase “which the bylaws may specify” was nonrestrictive language that merely permitted the bylaws to enumerate such cause, but did not limit the terms under which a board member may be dismissed.
Citing Strunk and White’s Elements of Style, Judge Mary Hannah Leavitt of the Court of Common Pleas of Pike County, Commonwealth of Pennsylvania, held that “the word ‘which’ is a nondefining, nonrestrictive pronoun … not essential to defining ‘proper cause’.” Lutz v. Tanglwood Lakes Community Association, Inc., No. 571 C.D. 2004 (Pa. Cmwlth., January 12, 2005).
In other words, if the statute had specified “any other proper cause that the bylaws may specify,” the board would have had to point to a proper cause specified in the bylaws in order to remove the member; but the use of the term “which” made the clause a nonrestrictive one that, rather than stating an additional requirement, merely provided the nonessential information that the board could specify proper causes in their bylaws if they wished. Thus the phrase beginning with the word “which” need not have been present at all, at least for the purpose of determining the board’s authority to dismiss its member. Articulation of a proper cause was sufficient; that cause was not required to be specified in the bylaws.
A dissenting judge, also citing Strunk and White, pointed out that nonrestrictive clauses are supposed to be set off by commas, and there was no comma between “proper cause” and “which the bylaws may specify,” so the “which” should be treated as if it were a “that.” But the majority opinion correctly recognized that the judges’ job was to interpret the meaning of the statute as written, not to correct its grammar; and construing the words “according to rules of grammar and according to their common and approved usage,” as required by Pennsylvania’s Statutory Construction Act, led to the necessary conclusion that the bylaws need not specify a particular cause in order for the board to remove a member for that cause.
Of course it is possible, as the dissenting judge argued, that the legislature was mistaken when it chose to write “which” rather than “that” in the statute in question. And it may be that the plea bargain agreement in State v. Lathrop intended to identify a sentence five months below the low end of standard, and not a determinant 90-month sentence, and the parties were simply mistaken when they chose to write “which” rather than “that.” But the point is this: There are consequences to such choices.
And the larger point is that, while in most situations the intended meaning is clear even if the chosen word, grammar, usage, or style is wrong or cumbersome, there are cases in which the choices made by writers will have significant impact on the meaning, interpretation, and application of what has been written. Indeed, in our profession that is very often the case; so we must make a habit of choosing our words carefully.
Now in writing this column I may use the word “correct” from time to time for rhetorical impact. But it’s not really the purpose of this column to preach “correctness” in the schoolmarm sense. We should all appreciate the richness, flexibility, and versatility of our ever-growing, always-changing language. The trick, though, is for those whose livelihood depends (like ours) on an effective use of the written and spoken word to walk a fine line between being rigid, stuffy, and always “correct,” on the one side, and being too laid-back and loosey-goosey on the other. When I write about “correct” usage, what I really mean is not correctness according to some objective set of rules but rather correctness in the sense of effectiveness.
That’s not to suggest that there are no rules, or that rules should be ignored. Rules become rules because they work; they serve a purpose. That doesn’t mean they can’t and shouldn’t be broken from time to time. But not because language should be unchained from rules for its own sake, for language without rules ceases to be language. Rather, it’s because there are times when communication is more precise and effective if it breaks rather than adheres to a rule.
Return to the Island of Lost Distinctions
What makes the English language so great is the fact that it has drawn from and assimilated words, expressions, idioms, and constructions from numerous other languages, giving it a richness and subtlety that few languages ever attain. The gift of a language that has many different words for similar or related concepts is that we are able to achieve a fineness of distinction that enables us to communicate with greater precision and effectiveness. Think, for example, of the words waterfront, wharf, pier, and dock, all of which pertain to the same general area, but have specific differences in meaning. We want to preserve those differences when it really matters. If people use those terms interchangeably, most of the time it won’t matter. But if they do it so much and so carelessly that the distinctions among those terms are lost altogether, then we lose the ability to differentiate conceptually, and that harms not only our ability to express but also our very ability to think.
If a dictionary dutifully records all possible meanings of a word, including the ones that blur the word’s original distinction, it should also do us the favor of indicating which definition is faithful to the precise meaning of the word, and which definitions are corruptions or revisions of the original sense of the word. Dictionaries that do not do this impoverish rather than preserve our language’s unique ability to provide fine distinctions.
For example: Prone means lying on one’s front; supine means lying on one’s back. That’s a distinction worth having. But so many people use one or both words incorrectly that now many dictionaries will identify both words as meaning, generally, lying down. This lessened literacy means that writers and speakers, in order to make sure they are being clearly understood, must now use a phrase (“lying on his stomach”) instead of a single economical adjective (“prone”).
Or consider the words podium and lectern. The first one means what a speaker stands on (the “pod” part coming from Latin for “foot”); the second one means what a speaker stands at or reads from (the “lect” part coming from Latin for “to read”). Here’s what a dictionary says:
po•di•um (po´-de- m) n. pl. po•di•a (-de- ) or po•di•ums. An elevated platform, as for an orchestra conductor or public speaker. A stand for holding the notes of a public speaker; a lectern.
Most people don’t appreciate the distinction between the words, and use them interchangeably, and that’s fine in most contexts. But once dictionaries codify that interchangeability, people take it as correct, and soon we have lost the ability to make the distinction by choosing the correct (or best) single word; instead, we have to explain ourselves by using a phrase or even a whole sentence. We lose economy, flexibility, and precision — all qualities that make the difference between skillful, effective, clear communication and fuzzy, uncertain communication (or even, in some cases, no communication at all). And I didn’t even mention all the wonderful choices we lose if we don’t preserve fine distinctions among such related words as rostrum, dais, and pulpit!
A laissez-faire approach to language might dictate a rule whereby we assume that if a distinction is important, speakers and writers of the language will honor it by preserving it in the way they choose their words; and if we don’t try to preserve the distinction between “prone” and “supine” or between “podium” and “lectern,” it must be because they aren’t really that important to us.
But in fact most of us, when speaking, and often even when writing, use our language in a lazy way — not sloppy so much as merely relaxed — and that’s fine because most situations don’t call for more than a casual use of language.
However, sometimes it does matter. If everyone uses “prone” to mean simply “lying down,” the distinction will be lost — not only in casual communication but in formal communication as well. The consequences are that, next thing you know, in a situation in which the distinction is important (in a medical emergency, for example, or in taking evidence for a criminal trial), we no longer trust the single word. We can’t be sure the EMT or innocent bystander or witness or jury really knows what “prone” means, so we resort to a four- or five-word phrase instead. That makes certain that we convey the correct information; but it also makes our use of language more cumbersome, more time-consuming, more burdensome to the listener, less economic and razor-sharp, and consequently less likely to have any impact beyond merely imparting information.
Our business is never just to impart information. Our business is to persuade. Whether we are addressing a judge, a jury, opposing counsel, a client, or a party we are negotiating with, our job is always to present a viewpoint and persuade the listener to understand it, consider it, take it seriously, and — with luck — adopt it as her own. We can’t do that if we use any but the best, clearest, sharpest language. Indeed, the loss of any distinction between meanings of the words in our language, however subtle or esoteric, is the loss of an important tool of our profession, and therefore diminishes us. Never send to know for whom the bell tolls.
L’Envoi
So when I write about “correct” and “incorrect” uses, I don’t mean uses that adhere to some single-minded view of the one and only one meaning that any word is allowed to have. Rather, I mean uses that preserve the ability of the word to communicate with specificity, and to distinguish its meaning from those of other words that may be similar or related.
Then who’s to judge? It always must be the literate, thoughtful writer or speaker, who chooses his words carefully because he knows his audience and because he is passionately dedicated to clear and effective communication. The more that writer/speaker knows about words — their origins, their older and newer meanings, the subtle or not-so-subtle distinctions among them — the better equipped that person is to do the job of communicating — and persuading.
What I try to do in this column is to share some of what I’ve learned from a lifetime of studying and using words. I hope others will share theirs with me.
Robert C. Cumbow thanks Kelly Mann and Doug Ende for calling the Lathrop and Lutz opinions to his attention. Cumbow is a shareholder with Graham & Dunn, Seattle, where he counsels clients in beverage, food, communications, entertainment, and other businesses on trademark, copyright, advertising, media, and alcoholic beverage law. He teaches at Seattle University Law School, and writes and lectures on law, film, and language.
