Defending the dictionary

I'm an appellate geek. I don't think this confession comes as a shock to anyone. I like arguing the law, not facts. I like sussing out what statutes and jury instructions really mean. I really believe that the difference between unless and until is huge and that it matters whether a statute says a or any. I'm also a bit of a dictionary geek. I consult the dictionary on my desk multiple times a day. I have the dictionary app on my phone and iPad. I think carefully about my word choice and regularly look to the dictionary to help decide which word I most want to use.

So I took note of this story in the NYT about the rising use of dictionary citations in Supreme Court decisions. Adam Liptak, some quoted scholars, and many commenters seem to think this is a really bad thing.

I must confess, I'm not sure I understand the brouhaha. I have cited the dictionary in at least two briefs. Once really was to make a point about the difference between "a" and "any." I had to make a point that the word choice made by the legislature mattered. We have to do that in almost every case, haggle over specific words. If the legislature doesn't specifically define a term, we are to presume the word has its commonly understood meaning. (Naturally, the legislature did not include "a" and "any" in its definition section...) So if I can't go to a dictionary for that, where am I supposed to go? I can't just assert that a word means what I want it to mean; I have to cite authority for my position. And on that particular word choice, Black's Law Dictionary wasn't particularly helpful, as that book is not in the business of defining basic words like articles.

I do understand Liptak's concern about cherry-picking from dictionaries. He notes that justices have cited 120 dictionaries. I would like to know if that 120 treats different editions of Webster's as separate dictionaries, though. When I cite, I look at multiple dictionaries, always the most commonly-used dictionaries. And, of course, my adversary is free to consult other dictionaries to find definitions that might disagree with the ones I have offered. It only hurts my case if I avoid a definition that includes a nuance harmful to my position. Instead, I would make my best case for why that definitional nuance doesn't mean my client isn't entitled to relief.

If I have to cite dictionary definitions, it stands to reason that courts have to consider them. Isn't consulting a dictionary preferable to creating a definition out of whole cloth?

In the law, words matter. Often little words you wouldn't think matter can make a big difference. The difference between "a" and "any" meant the difference between my client having 2 convictions or 1, so, no, it wasn't just nitpicking. Where would I have found my answer for that if not the dictionary? I did find a case from another state that supported my argument, but guess where that state's court had turned to help find its answer? A dictionary. And I don't understand why anyone would have a problem with that.

What say you? When the legislature and case law is silent on the meaning of a word, where should a lawyer or a court look if not to a dictionary? What am I missing about why citing the dictionary is bad or lazy or somehow intellectually lacking?

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