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January 18, 2013

"Is it ‘pleaded’ or ‘pled’?"

The title of this post is the headline of this amusing ABA Journal website piece concerning a linguistic issue with which I often struggle.  Here are parts of the article (which includes a poll):

An ABAJournal.com reader recently questioned the publication’s editorial judgment when a story told of two women who pleaded guilty to criminal charges. “This may be a hanged versus hung question,” said the reader using the name OKBankLaw, “but shouldn’t pleaded in the fourth paragraph be pled?"

That much-debated question is being aired in the Daily Report [available here].  On one side is John Chandler, a senior litigation partner at King & Spalding, who advocates “pled” despite the opinion of the editor of Black’s Law Dictionary. “I know, I know: Bryan Garner says that ‘pleaded’ is the ‘predominant form in American English,’ ” Chandler writes. “But does the guy listen to people talk? Nobody says ‘pleaded.’ ” The shorter form is also favored by readers of Above the Law responding to online polls, he argues, as well as the characters on Law & Order.

On the other side is Brian Boone, a senior litigation associate at Alston & Bird. He labels Chandler’s “everybody says it” claim as hyperbole. Boone cites his own Westlaw search showing the U.S. Supreme Court has used “pleaded” in more than 3,000 opinions and "pled" in only 26 — and in some of those instances the court was quoting others.

I tend to favor "pled" though I never feel confident using that form in formal writing. I would be grateful to hear the views of readers.

January 18, 2013 at 09:09 AM | Permalink

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Here's another conundrum of particular interest for federal sentencing practitioners: What initials do you use for a shorthand reference to the Presentence Investigation Report? A Westlaw search shows that PSR is the preferred acronym in almost all of the Courts of Appeals. But the predominant acronym in the 11th Circuit is PSI. Almost never seen is PIR, which would appear to be the most logical acronym.

Posted by: anon | Jan 18, 2013 10:23:58 AM

I skimmed over the recent Garner article in the ABA Journal. In my former life before the law, I was a theoretical linguist and it is a given in linguistics as firmly followed as evolution in biology that it makes no empirical sense to debate "better" or "worse" as far as variant forms in a given language or across different languages. It is clear that there are multiple ways of communicating ideas and no one language (including English) has any claim to making all the right moves. The same can be said for variant forms like "pleaded" and "pled." Both get the job done and there is no urgent need to select one over the other to avoid irreperable confusion. Language purists like Garner genuinely have the same credibility among linguists that creationists have among biologists. They are entitled to their opinions, but it is disturbing to see the educated public give weight to such counter-empirical hogwash.

Posted by: James Fife | Jan 18, 2013 10:52:02 AM

UK: Pled, US: Pleaded

Posted by: English | Jan 18, 2013 12:46:46 PM

This is a personal pet peeve: "Pled" is the superior usage by any measure in the legal arena. As George Orwell advised in his brilliant essay, "Politics and the English Language," "Never us a long word where a short one will do," and always "use the fewest and shortest words that will cover one's meaning." If you can say the same thing with one less syllable without sacrificing clarity, IMO it's always the right choice.

I'm sad to say a Texan, Bryan Garner, is largely to blame IMO for modern lawyers' use of the awkward and ill-considered "pleaded." In journalism, blame the AP style guide.

Mr. Fife is certainly right that there's "no urgent need to select one over the other," but I see "pleaded" (as it refers to legal proceedings) as part of a broader mangling of the English language to which the legal profession has greatly contributed.

Posted by: Gritsforbreakfast | Jan 18, 2013 12:48:05 PM

As far as actual usage in the American corpus, "pleaded" seems to be the clear winner. Though obviously these data reflect use in both legal and nonlegal sources.

Posted by: Michael Drake | Jan 18, 2013 12:49:59 PM

Anon: I use PSI. I see many of my collegues who used to use PSR now using PSIR.
Lets not get started on the acronyms for drunk driving -- DWI, OMVI, OVI

Posted by: ? | Jan 18, 2013 2:22:44 PM

I have also noticed the use of PSI and PSR to refer to the same thing and wondered about the correct term. I've been asked a few times, and my view--which is worth what you paid for it--is that PSI refers to the investigation itself ("I was assigned a PSI and we need to schedule and interview.") and PSR refers to the document summarizing the investigation ("Did you get your copy of the PSR?"). Rule 32 seems to support those uses as it refers to conducting investigations and submitting reports. But what about resitution--do defendants "pay" restitution or "make" restitution? I've seen it both ways and it seems to matter to some folks...

Posted by: uspo esq | Jan 18, 2013 2:57:19 PM

Personally, I'd prefer that they neither pleaded nor pled, since trials are more entertaining.

Posted by: Bill Otis | Jan 18, 2013 3:01:28 PM

Pleaded!

Posted by: lawdevil | Jan 18, 2013 3:21:17 PM

I wouldn't call Garner a "language purist."

In the entry on this topic in his Dictionary of Legal Usage he notes the adverse commentary on "has pled" and "has plead" and then says: "The problem with these strong pronouncements is that pled and plead have gained some standing in [American English], as the Evanses noted in mid-century.... The variant forms might not be the best usage, but neither can they be condemned as horrible." Seems like a reasonably tolerant view to me. Garner gives his opinion on the preferred form (which is, after all, what I bought the book for) but doesn't condemn those who use the other.

I recommend the dictionary, BTW.

Posted by: Kent Scheidegger | Jan 18, 2013 8:05:20 PM

Kent, I certainly didn't mean to disparage Garner's work generally, just his influential if regrettable choice on this particular topic. (I've got the same beef with Black's, the AP and NYT style guides and most spell checking software.) IMO, "has plead" is always incorrect and I object to his lumping it in with "has pled," which is not only grammatical but more concise, less awkward, and tracks more closely with how lawyers and judges actually communicate with each other face to face. I've never heard an attorney say "I pleaded the case"; it's always "I pled the case."

Posted by: Gritsforbreakfast | Jan 19, 2013 7:31:28 AM

I employ both words but it depends on the sentence structure. I particularly do not employ the word "pleaded" or "pled" if I am in the context of a plea to an offense or a plea for mercy. Nuff said there.
If several people have pleaded the same facts then I would say it that way. If I previously pled some facts then I would use the pled.

If it is facts that I am referencing then I employ the word "alleged" before facts. If I am stating a cause of action then the word "pleading" makes more sense.

It is one thing to say that some defendant "plead guilty" and quite different to say that he "plead the Fifth". He "asserted" the Fifth.

Posted by: Pete Bastian | Jan 19, 2013 7:57:46 PM

Plood.

Posted by: Dizzy Dean | Jan 22, 2013 11:21:27 AM

Interesting thought about idea management going mainstream… I think it’s a byproduct of the information age we’re in…

Posted by: Rift | Feb 18, 2013 12:10:29 AM

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