I got the idea for this column by reading the deposition transcript of an expert witness. In the transcript was a most interesting rendition of a legal term. It was entertaining. Here are a few of my favorite things, to quote Rodgers, Hart and my childhood idol, Julie Andrews, from the malapropism and misnomer catalogue.
This first shining example came from an attorney. He may have misspoken; I would more readily blame the lawyer than the court reporter, who was undoubtedly faithfully taking everything down verbatim and, more to the point, accurately. In any event, this is what it was: “Approximate cause.”
Of course, the intended term was “proximate cause,” the scaffold upon which all negligence cases may eventually hang. If you plug “proximate cause” into Westlaw, you will come up with roughly 82 fintillion hits, and that’s just over the past three months. This concept has been retooled by courts everywhere and is subject to tweaking at will by the creative writers of our profession.
But I prefer “approximate cause,” especially because this more pictorially illustrates the real situation than all of the legal definitions of proximate cause I have heard. Those descriptions could leave the triers of fact asking themselves, “Huh?” as they walk out of the courtroom to contemplate your carefully prepared case. But “approximate cause,” well, anyone could understand that. I think I will adapt it to my next set of proposed jury charges.
On my next vacation, I am going to visit a famous site: “The Statue of Limitations.”
This scenic icon is not, in fact, carved from granite, cast from steel or chiseled out of a marble block. The Statue of Limitations, which is in the shape of a keyhole or needle’s eye, is made of a scientifically wondrous material, which is fabricated by combining marshmallow fluff and the kind of rubber that made Silly Putty do those wonderful things with comic books and your sister’s hair. It is described in brochures as interactive sculpture, meaning that tourists may stretch and manipulate it at will, thus providing a wider or narrower opening of the keyhole or needle’s eye. In my imaginary world, the Statue of Limitations is located in bucolic Bozrah, next to a convenience store.
A practitioner I should most likely be seeing on a regular basis was referred to in court some months ago. My opposing counsel described this expert witness as follows: A “microneurologist.”
I am not sure whether the term refers to the stature of the medical provider, or the size of the brains he either possesses or assesses. Maybe he was thinking of a microbiologist or a macrobiotic luncheon. Perhaps he had recently rented “The Fantastic Voyage” on DVD, and was thinking about shrinking. But I suspect it actually means someone who works on really little brains, especially if I am the patient under examination.
My very favorite misnomer is one which should go down in the annals of the great typographical misinterpretations of all time. This is what the attorney said into the dictating machine: “Loss of consortium.”
This is what appeared on the printed page: “Loss of contortion.”
There could be no more perfect description of the activity for which so many injured significant others and lawfully wedded companions seek compensation for losing. Sanitized by slippery euphemism, “loss of consortium” in and of itself is not really descriptive of the injury claimed. The only individuals with whom one is said to consort are goodfellows, not bedfellows. Almost nobody uses the word “consort” unless it is nuzzled up beside “known criminals.”
The mistaken version is far more accurate, summing up the claimed damages with stunning clarity. It is unquestionably “loss of contortion” about which everyone is, with apologies for my pun, bent out of shape.
Amy F. Goodusky, a former paralegal, rock ‘n’ roll singer and horseback riding instructor, is of counsel to O’Brien, Tanski and Young in Hartford.