12:05, April 13 467 0 abajournal.com

2017-04-13 12:05:05
Should lawyers repeat a justice’s mispronunciation? Take this ‘antecedent’ example

An assistant to the solicitor general had a choice to make when Justice Elena Kagan referred to the antecedent clause of a statute.

Kagan pronounced the word “an-TESS-a-dent,” mystifying spectators in the courtroom, Law.com (sub. req.) reports.

Regent University law professor James Duane was there to observe the arguments with his students. “It sounded like the justice was mentioning some relative named Aunt Tessa Dent,” he wrote in a recent law review article that did not identify the justice. (He wanted to avoid “gratuitous embarrassment,” he explained).

“The pronunciation was so unconventional,” Duane wrote, “that I could not have been the only one in the courtroom who needed to hear the word two or three times before having any idea what the justice was trying to say.”

The unusual pronunciation raised a dilemma for lawyers at oral arguments, Duane said. Should lawyers mimic a justice’s pronunciation, or opt for the more conventional pronunciation?

Ann O’Connell, an assistant to the solicitor general, opted for the latter, pronouncing the word “ant-a-SEED-ent,” according to Law.com.

Duane said he would have repeated the justice’s pronunciation. His article refers to another example in which a lawyer at Supreme Court arguments decided to mimic a mispronunciation, as recounted by legal writing expert Bryan Garner, president of LawProse Inc., in a November 2015 article for the ABA Journal.

The case was Daubert v. Merrell Dow Pharmaceuticals, and then Chief Justice William H. Rehnquist pronounced the litigant’s name “DAW-buhrt,” rather than use the French pronunciation “doh-BAIR.” The lawyer for the Daubert family used the same pronunciation as Rehnquist, and the mispronunciation is now the accepted pronunciation, Garner wrote.