Reminder: Don’t Rely on Dictionaries

Here’s my favorite law-conference anecdote:

I’m on a panel. The topic of represents and warrants comes up, as it tends to. Another panel member is unimpressed by what I have to say. As his way of resolving the matter, he asks imperiously that a copy of Black’s Law Dictionary be brought to him, and he proceeds to read aloud the definition of representation. He closes the book. Case closed, game over, apparently. Me, I pick my jaw up off the floor, because I know that a dictionary definition doesn’t begin to resolve the confusion. (Go here for the full gruesome story of represents and warrants.)

I mention that simply because Neal Goldfarb, a litigator who also does linguistics, has made available through this post on his blog his conference paper entitled Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics. Here’s part of the abstract:

As one might expect given the centrality of dictionaries in disputes over word meaning, legal interpretation presupposes a view of word meaning that is essentially the same as the view that is fostered by dictionaries. Under this view, individual words are the basic units of meaning from which the meanings of sentences are built. Word meanings are seen as discrete entities with (in most cases) clear boundaries.

But corpus linguistics and corpus-based lexicography have shown that the reality is different. Clear boundaries between the meanings of different words, or between the different senses of the same word, often do not exist. Drawing lines between different word senses often has an unavoidable element of arbitrariness, as is shown by the fact that the lines are often drawn differently by different dictionaries. These differences raise questions about the validity of legal interpreters’ relying on dictionaries at all, and at a minimum suggest the need for changes in how dictionaries are used.

In other words, dictionaries are word zoos, in which words are considered out of context.

It’s useful for us all to be reminded of the extent to which people do look to dictionaries, and not just litigators. Another example from my world: If people think that best efforts imposes a more onerous obligation than does reasonable efforts, it’s because they have foremost in their minds the dictionary definition of best, “exceeding all others.” That’s hopeless.

If you work with contracts, what’s your alternative to relying on dictionaries? Wherever possible, purge your contracts of obscure legalisms and say whatever you want to say more clearly. (MSCD contains a boatload of specific recommendations.) But that isn’t enough, because plenty of contract disputes involve what seem like benign words, such as computer and offshore. (Similarly, Neal’s article considers what it means to say one is “carrying” a weapon.) You have to be eternally vigilant to the alternative meanings lurking in everyday words.

Want more on dictionaries? See this 2016 post about how some contracts invoke dictionaries, and see this this 2011 post and this 2012 post about how judges use dictionaries.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.