There are plenty of pronunciations practitioners can disagree on -- voir dire, for example, stare decisis, or even choate. Then there's antecedent, usually said with the emphasis on cede, as in 'ant-a-SEED-ent.' But not by Supreme Court Justice Elena Kagan.
Justice Kagan pronounced the word 'an-TESS-a-dent,' like precedent, during oral arguments in 2015, according to Regent University law professor James J. Duane, raising the question of how attorneys should respond to a judge's unusual pronunciation. Do you play along, adopting their emphasis or inflection, use the contrary pronunciation, or correct them outright?
Going Along With a Judge's Cacoepy
Professor Duane notes that the general rule is to go along with a judge's pronunciation, or at least a justice's. The chief example comes from Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court case on expert testimony. You probably pronounce the name as 'DAW-buhrt' and you have Chief Justice Rehnquist to thank for that. During oral arguments in the case, the Chief Justice treated the litigant's name as though it rhymed with Robert.
But the name is French in origin. It's meant to be pronounced doh-BAIR (like a French Robert). Rehnquist had gotten it wrong. So, how did Daubert's Supreme Court counsel react? He went along with it. That's the reason we don't pronounce the case with a French inflection today.
Not Everyone Is Afraid to Correct a Judge
Not all Supreme Court lawyers are so deferential, however. When Justice Kagan (Duane declines to name the justice directly, but you can hear Justice Kagan make the unusual pronunciation here, around the 48-minute mark) asked about the last
Aunt Tessa Dent antecedent rule, the Assistant Solicitor General didn't adopt the unorthodox pronunciation. Duane, who was watching oral arguments with his students, recalls:
In her response to that question, the Assistant to the Solicitor General -- who turned in an otherwise exceptional performance arguing the case, and was clearly the best advocate to appear before the Court in either case that morning -- gently corrected the justice by saying, not once but twice, "ant-a-SEED-dent." Although I appreciated the clarification for the benefit of my students, the contrast was conspicuous.
Duane used the pronunciation as a teaching moment. He had never contradicted a judge's pronunciation, he told his students. "I would instead either mimic the judge's mistaken pronunciation, or simply not use that word in my answer." When that wasn't possible, he'd work around the word, rather than risk offending someone who could decide his case.
Still, one wonders if the justices are so thin skinned that they couldn't withstand a bit of diversity in the inflection and intonations before them. These are, after all, people who have to listen to certiorari being butchered just about every day.
So, how would you respond to a judge's unorthodox pronunciation? Let us know below.
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