May 16, 2018

Language Lab

Keith Fisher

As both a practitioner and a law professor, I have noticed over the years how careless lawyers and law students are with language. That carelessness manifests itself in misused words, misspellings, and rampant errors of grammar and punctuation.

Why should you care? Here is the reason: The English language supplies the tools of our profession. Language skills are therefore of critical importance to the ethical obligation of competence. With them, you are better able to communicate, and paying attention to this subdiscipline enhances your ability to concentrate and deploy your language skills to great effect in legal practice. Furthermore, people—including colleagues and the client population—will judge you by, among other things, the way you present yourself in both spoken and written discourse.

Language Lab is a new feature that will appear periodically in Business Law Today. This column will address common errors in grammar, usage, spelling, and punctuation. Comments and suggestions for future columns are heartily welcomed.

Bi-annual/Biannual

The first time I saw the word “bi-annual” (or biannual—both spellings are in use), I thought it was either a typo or a malapropism. It has found its way into the modern lexicon, however, and is defined somewhat confusingly (if not precisely contradictorily) to mean both twice a year and once every two years. At best, therefore, this neologism is ambiguous.

For lawyers, that will not do. We require precision in communication. Imagine interpreting a contract containing this word. What would you say is the intent of the parties?

Early in my career, a senior partner with superb transactional and semiasological skills (no, that’s not a typo; look it up!) told me, “When drafting a document, if you do your job properly, it will never end up in court.” To be sure, he was a product of a less litigious time than our own. But even if in these days, when frivolous claims proliferate, a document you drafted should end up in court, you want to be sure that the trier of fact construing the document does not have any uncertainty about its meaning.

So what does this “bi-” prefix do to the word “annual”? Does it operate like “bifocals”? “Bilateral”? “Bisexual”? “Bicameral”? “Bifurcated”? “Bilingual”? “Bi-coastal”? Some of these refer to two objects; others to one.

According to the dictionary definition, “bi-annual” (or “biannual”) are regarded as interchangeable with “biennial” and “semi-annual,” but these are not equivalencies. Treating them as such may be all right for marketing departments but not for lawyers. (Indeed, I would urge even marketing departments to avoid misusing these words because doing so might end up being costly).

The solution is simple: Avoid ambiguity! If you wish to indicate with a single word something done twice a year, use the word “semi-annual”; if you mean to indicate something done once every other year, use “biennial.” The same principle applies for “semi-monthly” (which means twice a month) and “bimonthly” (which, properly used, means once every two months, although here again the dictionary definition is ambiguous).

So if you have a septic field at your house that you need cleaned once every two years, do not sign a contract with the septic cleaner dude that says “biannual,” unless you are willing to see his smiling face and write him a check twice each year (that is why he is smiling)!

Bye-bye, now.

Keith Fisher

Principal Consultant and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.