Terminology — lawyer or attorney?

More from usage guru Bryan Garner:

Garner“Garner’s Usage Tip of the Day

lawyer; attorney; counsel; counselor.

The two most common among these, “lawyer” and “attorney,” are not generally distinguished even by members of the legal profession — except perhaps that “lawyer” is often viewed as having negative connotations. Thus one frequently hears about “lawyer-bashing,” but only the tone-deaf write “attorney-bashing” — e.g.: “Attorney-bashing [read ‘Lawyer-bashing’] always will be a popular pastime.” Christopher Smith, “Injury Lawyer May Be Utah’s Best — Bar None,” Salt Lake Trib., 7 Feb. 1994, at A1.

Technically, “lawyer” is the more general term, referring to one who practices law. “Attorney” literally means “one who is designated to transact business for another.” An attorney — archaically apart from the phrases “power of attorney” and, less commonly, “attorney-in-fact” — may or may not be a lawyer. Thus Samuel Johnson’s statement that “attorney” “was anciently used for those who did any business for another; now only in law.” A Dictionary of the English Language (1755).

From the fact that an attorney is really an agent, Bernstein deduces that “a lawyer is an attorney only when he has a client. It may be that the desire of lawyers to appear to be making a go of their profession has accounted for their leaning toward the designation attorney.” Theodore M. Bernstein, The Careful Writer 60 (1965). Yet this distinction between lawyer and attorney is rarely, if ever, observed in practice.

In American English, “counsel” and “counselor” are both, in one sense, general terms meaning “one who gives (legal) advice,” the latter being the more formal term. “Counsel” may refer to but one lawyer {opposing counsel says} or, as a plural, to more than one lawyer {opposing counsel say}.”

Me, I prefer lawyer because it sounds more practical, less Latinate than attorney. Your characters may disagree — Garner does!


From the esteemed Bryan Garner:

Garner“Garner’s Usage Tip of the Day


Journalists often misuse “lawsuit” (one word) for “complaint” (= the paper that is filed to start a lawsuit) — e.g.:

o “In its 18-page lawsuit [read ‘complaint’], Viacom-owned CBS alleged: ‘”Celebrity” was consciously designed to mimic “Survivor” and unfairly trade on its success.'” Meg James, “CBS Sues to Block New ABC Program,” L.A. Times, 7 Nov. 2002, Bus. section, pt. 3, at 3.

o “The allegations in his 144-page lawsuit [read ‘complaint’] read like a Robin Cook novel.” Lynne Tuohy, “Pfizer Trials Called Cruel, Immoral,” Hartford Courant, 6 Dec. 2002, at A1.

The “lawsuit” is the whole process; the document (however many pages long) is only an instrumental part of it.”

Garner on terminology

GarnerGarner’s Modern American Usage is a reference you should all have.

“Garner’s Usage Tip of the Day

judge; justice.

In American English, as a general rule, judges sitting on the highest appellate level of a jurisdiction are known as “justices.” Trial judges and appellate judges on intermediate levels are generally called “judges,” not “justices.”

New York and Texas depart from these rules of thumb. In New York, “justices” sit on the trial court of general jurisdiction (called the Supreme Court, oddly), whereas “judges” sit on the appellate courts. In Texas, “justices” sit on the courts of appeals (between the trial court and the Supreme Court — the latter being the highest civil court, which is also composed of “justices”); “judges” sit on trial courts and on the Court of Criminal Appeals, the highest criminal court.

H.W. Horwill wrote that “‘judge’ carries with it in America by no means such dignified associations as it possesses in Eng. It may mean [in American English] no more than a magistrate of a police court.” Modern American Usage 180 (2d ed. 1944). “Justice” may also denote, in American and British English alike, a low-ranking judge or inferior magistrate, as in the phrases “justice of the peace” and “police justice.””

Talking terminology: “Trespassers will be prosecuted”

“Trespassers will be prosecuted.”

GarnerDo you know Bryan Garner, author of Garner’s Modern American Usage? You don’t? Get thee to his blog immediately. Subscribers get an entry or two a day from his usage manual, a resource every writer should have and rely on, and a quote about language, speech, or usage.

Garner also teaches lawyers how to write better. His books and seminars are popular, but what I count on are his “Law Prose Lessons,” aimed at increasing clarity in legal writing. This one I’m quoting in full, because the distinction he notes is often mistaken in novels and news accounts as well.

“”Trespassers will be prosecuted.” This phrase, which most readers would construe as referring to criminal proceedings, usually expresses an untruth. In most states (Louisiana is a notable exception), trespass to land is ordinarily a tort — not a crime. Although the landowner can sue, the district attorney won’t prosecute. But a trespasser who causes damage, as by trampling crops or breaking windows, can be criminally prosecuted.”

A tort, readers of Books, Crooks & Counselors will recall, is a civil claim asserted by one individual against another, as opposed to a crime, a violation of criminal law, the rules of society as agreed upon by the state or federal legislature and enforced by the prosecutor (sometimes, but not always, called the district attorney), on behalf of society as a whole. So if you go walking or hunting on private property, you won’t be prosecuted by local authorities, although the property owner could sue you. But if you break into a house, expect to be charged with the crime of trespass, and maybe more.

Talking terminology: jail vs. prison

I’m not a peevish woman, not really. But I do have a few peeves—not pet peeves, exactly; dogs and cats make much nicer pets. But there are a few common errors in terminology, on the nightly news and in novels, that get my dander up.

And one of those is jail vs. prison. Both are secure structures holding more people than they were built for. They are both stark and noisy, warm enough but physically chilly. They are not nice places, nor are they meant to be.

OldMTPrisonHere’s the difference: Jails are, for the most part, facilities housing two kinds of people: those accused of a crime and awaiting trial, or those who have already been convicted of a misdemeanor and are serving their time. They are run by counties or municipalities, although in smaller communities, the towns and cities may have nothing more than a holding tank and contract with the county to house their inmates. When the sheriff of a large Montana county retired and became chief of police in a small town 75 miles away, he could be heard cheering loudly “I don’t have a jail! I don’t have a jail!”

Prisons, in contrast, are state and federal facilities housing persons convicted of felonies, violent or otherwise. A few states have licensed privately-run prisons. Like the federal system, a state may have several levels of prisons, housing maximum security inmates in one location, medium in another, and low risk in yet another. Many states have separate prisons for women.

Two exceptions I’ve seen: A state facing particularly serious over-crowding may contract with a county that has empty beds for temporary housing for low or medium risk inmates. As well, the federal marshal’s system often contracts with counties to house defendants pending trial, or between conviction and transfer to a federal prison.

Check your jurisdiction for particulars, but know the basic differences.

(Photo of Old Montana Prison from the Montana State Archives.)

Terminology alert

A recent newspaper story claimed that a family had “won a settlement” in a suit against the Montana Department of Natural Resources and Conservation for damage done to their land by a scorching, and allegedly unnecessary, backfire the DNRC set. The story then mentioned the jury award.

Wait. What was it–a settlement or a jury award? Know your terms! A settlement is a voluntary agreement reached by the parties, to resolve the dispute between them. For example, in an auto accident, the defendant driver–or more likely, his insurance company–pays the plaintiff an agreed-on amount of money. In exchange, the plaintiff executes a written release of all claims against the defendant arising out of the accident. If a lawsuit has been filed, the lawyers sign a joint stipulation to dismiss the case.  In a contract dispute, the terms may be more complex; e.g., a building contractor who sues for nonpayment may get paid, but will also be required to release any liens he filed against the property, and the payment he obtains may be less than he demanded, if the property owner claims that the work was defective. In business litigation, the written settlement agreements can be extensive.

The parties and their lawyers may negotiate the settlement agreement themselves or participate in a mediation or settlement conference, with a lawyer who is not involved in the case serving as mediator or settlement master. The mediator serves as Henry Kissinger conducting shuttle diplomacy–going back and forth between the two sides, conveying offers and demands, offering his or her own evaluation, and helping the parties see reason and find common ground. If a lawyer views the case differently than his or her client does, a skillful mediator may be particularly useful. Settlement conferences are mandatory in many jurisdictions, before trial and on appeal. I’ve served as an appellate mediator many times.

(The criminal counterpart is a plea agreement–which must be approved by the judge.)

Yes, a settlement is a victory of sorts–for all parties–because it buys peace and ends the litigation, but saying a party “won” implies prevailing at trial.

Say that the parties “reached a settlement.”

You’ll be right, and I’ll be happy.