Professor James Duane has a very short and interesting article up on SSRN about the potential perils of correcting a judge’s mispronunciation during oral argument. He focuses on one recent case where an excellent young lawyer twice corrected a Supreme Court Justice’s mangled pronunciation of “antecedent” simply by later pronouncing it correctly. Duane thinks this was the wrong approach, and counsels lawyers to either mispronounce the word in the same way going forward, or avoid using the mispronounced word altogether for the remainder of the argument.
That seems like odd advice to me. Judges are human beings, and they are not immune from basic mistakes any more than the rest of us.* Were I in the situation of that young advocate, I would be inclined just to use the word correctly the next time. Mimicking the error would seem to call even greater attention to it.
What do readers think? Feel free to weigh in.
* Some judges are more comfortable admitting mild linguistic ignorance (Chief Justice Roberts’ interruption a few years back to ask about the meaning of “orthogonal” comes to mind). But accepting that you mispronounced a word, and that it’s no big deal, seems to me a basic example of judicial humility.
The Interdependent Third Branch 