Legal Commentary

Horace and Westlaw

By Eugene Volokh

In the last two days, a colleague and a student asked me two questions (since they know I?m into this sort of thing):

(1) What is ?the correct past tense of the verb ?plead?? (?pleaded? or ?pled?)?

(2) Is it ?correct to write that a jury was ?impaneled? or ?empaneled???

Both questions were referring to legal usage, so I checked the ALLCASES database in Westlaw (after seeing both listed as equivalent in the dictionaries). And the results were:

(1A) text(?pleaded guilty?) & date(= 2010) ? 7664 documents. [UPDATE: te(pleaded % ?pleaded guilty? % ?well-pleaded?) & date(> 4/1/2010) ? 5017 documents; ?%? means ?and not.?]

(1B) text(?pled guilty?) & date(= 2010) ? 8508 documents. [UPDATE: te(pled % ?pled guilty? % ?well-pled?) & date(> 4/1/2010) ? 5573 documents.]

(2A) text(?impanel!?) & date(> 2000) ? 5440 documents.

(2B) text(?empanel!?) & date(> 2000) ? 5543 documents.

So both are fully standard, and I see no basis for labeling either ?incorrect.? As Horace suggested, we must look to ?the will of custom, in whose power is the decision and right and standard of language.? And these days custom is easier to find out than ever, especially if you are an academic blessed with free Westlaw. (Of course, if you?re writing a brief to a particular court, it can?t hurt to determine local custom in that particular jurisdiction; and Westlaw and Lexis can help with that, too.) [UPDATE: ?Well-pleaded,? though, is much more common than ?well-pled,? 6754 to 884 when searching with date(= 2010).]

By the way, I used text() for my searches so that I wouldn?t be influenced by uses in West?s standard digest key number headings, and I used a more limited date range for the first two queries than for the last two because Westlaw won?t return more than 10,000 documents.

Full post as published by The Volokh Conspiracy on November 12, 2010 (boomark / email).