Appellate Practice

Should lawyers repeat a justice's mispronunciation? Take this 'antecedent' example

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Corrected: An assistant to the solicitor general had a choice to make when Justice Elena Kagan referred to the antecedent clause of a statute.

Kagan pronounced the word “an-TESS-a-dent,” mystifying spectators in the courtroom, (sub. req.) reports.

Regent University School of Law professor James Duane was there to observe the arguments with his students. “It sounded like the justice was mentioning some relative named Aunt Tessa Dent,” he wrote in a recent law review article that did not identify the justice. (He wanted to avoid “gratuitous embarrassment,” he explained).

“The pronunciation was so unconventional,” Duane wrote, “that I could not have been the only one in the courtroom who needed to hear the word two or three times before having any idea what the justice was trying to say.”

The unusual pronunciation raised a dilemma for lawyers at oral arguments, Duane said. Should lawyers mimic a justice’s pronunciation or opt for the more conventional pronunciation?

Ann O’Connell, an assistant to the solicitor general, opted for the latter, pronouncing the word “ant-a-SEED-ent,” according to

Duane said he would have repeated the justice’s pronunciation. His article refers to another example in which a lawyer at Supreme Court arguments decided to mimic a mispronunciation, as recounted by legal writing expert Bryan Garner, president of LawProse Inc., in a November 2015 article for the ABA Journal.

The case was Daubert v. Merrell Dow Pharmaceuticals. Then-Chief Justice William H. Rehnquist pronounced the litigant’s name “Dow-bair,” as if it were a French name, rather than use the litigant’s pronunciation, “Daw–bert.” The lawyer for the Daubert family used part of Rehnquist’s pronunciation, referring to the name Dow-bert,” according to

Last paragraph corrected at 3:50 p.m. on April 14 to reflect change in cited story.

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