As lawyers, we get to debate some of the most pressing questions of our time: The limits of Congress’s commerce power. The reach of the Due Process Clause. “Pleaded” versus “pled.”
Yes, you read that right: There is a bitter, friend-splitting debate raging among lawyers about whether to use “pleaded” or “pled.” (For our part, we almost ended up at Weehawken over the row.) Both words get a lot of play in legal writing. We think that it’s time for one usage to rule them all—but we disagree about which word to send to the dustbin. Chandler always uses “pled.” Boone always uses “pleaded.” The gloves are off.
But first, some context. We (Chandler and Boone) appreciate good writing, including a conversational tone. We both detest legalese—our jargon detectors go off when we see “herein,” “instant case,” or “prior to.” Neither of us starts sentences with “However”—”But” is better. But on pleaded-pled we disagree.
Here are our competing views:
(The minority view—or as Boone calls it, the “you’ve-watched-too-many-episodes-of-Law & Order” view):
Use “pled.” Boone needs to get out more—”pleaded” may seem fine on paper, but lawyers chuck the word when they head to court. A lawyer arguing a motion to dismiss doesn’t say, “They haven’t pleaded scienter.” He says, “They haven’t pled scienter.”
I know, I know: Bryan Garner says that “pleaded” is the “predominant form in American English.”1 But does the guy listen to people talk? Nobody says “pleaded.” Everybody says “pled”—and not just the good folks on Law & Order. “Pled” just sounds better to the ear.
Twice, legal tabloid/blog Above the Law has asked its readers which they prefer—”pleaded” or “pled.”2 Twice, strong majorities chose “pled.” Check Westlaw or Lexis, and you’ll find that judges use “pled” more often than “pleaded.”3
Moreover, it’s not like “pled” is the legal-writing equivalent of texting’s “OMG”—heck, even Edmund Spenser used “pled” way back in 1596.4 And Michael Quinion, the famous British etymologist and writer who runs the website World Wide Words, describes “pled” as the American strong-verb form of the past tense of “to plead.”5
How many briefs and opinions have you read in which the author used “plead” as the past tense of “plead”? Somebody heard “pled” and believed—incorrectly—that “plead” is like “read” (a word that keeps the same spelling in its past-tense form) or “lead” (which is only pronounced “led” when it is Pb on the Periodic Table of Elements). That error will wane when more writers embrace “pled”—”pled” can’t be mistaken for the present-tense “plead.”
Boone can wield a pen, but on this one, he’s stuck in the past. Use “pled.”
(The majority view—or as Chandler calls it, the Garner-groupie view)
Use “pleaded.” Chandler slips into hyperbole when he says that “everybody says ‘pled.’” That, of course, isn’t true. In fact, every legal and journalistic writing guide from the last 100 years has said that “pleaded” is the better choice.6 And for good reason: “Pleaded” better captures the past-tense-ness of the event.7
Don’t believe me? Ask the Supremes: A quick Westlaw search reveals that the Supreme Court has used “pleaded” in over 3,000 opinions, “pled” in only 26—and in some of those 26 opinions, the Court was quoting someone else when it used Chandler’s pet word. Or ask rock-star circuit Judges Richard Posner and Frank Easterbrook: With only rare exceptions, they use “pleaded,” not “pled.”
Mind you, Posner and Easterbrook are the opposite of stuffy writers. They write in a conversational, almost folksy tone—using contractions and colloquialisms to great effect.8 So using “pleaded” is not a matter of being “stuck in the past,” as Chandler says. It’s a matter of being careful.9
Chandler can turn a phrase, but on this one, he’s watched too much TV. Use “pleaded.”
So there you have it. We’ll leave it to you to decide who has the better of the argument.10
But whatever you do, don’t use “plead” as the past tense of “plead.”11 That’s just wrong.
1 Garner’s Dictionary of Legal Usage, 682 (third edition, 2011).
3 Eugene Volokh also has run the Westlaw and Lexis numbers and has confirmed that “pled” gets more hits: http://www.volokh.com/2010/11/12/horace-and-westlaw/.
4 See Evan Jenkins, “Pleaded Guilty: A Modest Plea,” in Columbia Journalism Review, at http://www.cjr.org/resources/lc/pleadguilty.php.
5 See World Wide Words Newsletter, Saturday 11 April 2009.
6 See, e.g., Garner’s Modern American Usage 682 (third edition, 2011) (favoring “pleaded” and collecting a number of sources that do the same); The New York Times Manual of Style and Usage 263 (first revised edition); The Associated Press Stylebook, 215 (2011).
7 Above the Law’s David Lat has made the same point: http://abovethelaw.com/2008/01/a-random-friday-poll-pleaded-or-pled/.
8 For a great discussion of Posner’s and Easterbrook’s writing, check out Brian J. Paul’s “Toward a More Impure Writing Style: The Opinions of Judge Posner and Chief Judge Easterbrook and What the Bar Can Learn From Them.” It’s available at http://www.icemiller.com/pdf/judge_posner_and_chief_judge_easterbrook_and_what_the_bar can_learn from_them .pdf.
9 “Careful speakers use pleaded.” Frank H. Vizetelly, A Deskbook of Errors in English, 167 (1906) (quoted in Garner’s Modern American Usage at 682).
10 Readers may register their view on the Daily Report‘s Web poll at http://www.surveymonkey.com/s/ZF22FCD .
11 We can provide examples of offending opinions and briefs upon request.
Ask the Supremes: A quick Westlaw search reveals that the Supreme Court has used “pleaded” in over 3,000 opinions, “pled” in only 26—and in some of those 26 opinions, the Court was quoting someone else.
Brian Boone is a senior litigation associate at Alston & Bird and, as he likes to say it, is a more handsome, conservative John Chandler. John is a Democrat. Brian is a Republican. Both love crack writing. John Chandler is a senior litigation partner at King & Spalding and a fellow of the American College of Trial Lawyers.