Monthly Archives: April 2013

For goodness sake, stop torturously misusing tortious and tortuous!

Dear friends:

The Scribe finds torturous the frequent misuse of tortious and tortuous—so let’s clear up the confusion once and for all.

Wrongful conduct that leads to tort liability is tortious, e.g.,

  • Defendant allowed her dog to bark at plaintiff as she walked on the sidewalk.  Those tortious acts startled and harmed the plaintiff by causing her to toss and turn all night.

A twisting, looping path (or anything else that is full of twists and turns) is tortuous, e.g.,

  • The climbers followed a tortuous path to the top of Mt. Thielsen.
  • The long and winding road that leads to your door, is tortuous.  (Alternative lyrics to the classic Beatles song.)

Sadly, when reviewing pleadings and other documents, the Scribe finds sentences like this:  “Plaintiff properly alleges a claim for tortuous interference with economic relations.”  In fact, plaintiff does not properly allege a claim for tortuous interference.  There is no such thing (although inelegantly pled claims are often tortuous); wrongful conduct is tortious, not tortuous.  That’s why the law recognizes a claim for tortious interference—not tortuous interference (which would be interference with my effort to complete this paragraph, for example, and is not compensable).  So even though Microsoft Word doesn’t contain the word “tortious”—and prompts you to convert “tortious” to “tortuous”—ignore Word’s mistaken prompt and add “tortious” to your dictionary. 

(By the way, something that is torturous involves torture.)

That is all for now …

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What is a negative pregnant?

This week we discuss negative pregnants (sometimes referred to as pregnant denials).  A negative pregnant is a denial that seems to only deny part of an allegation—while implicitly admitting another part, e.g.,

  • I did not beat my wife last night.  (Implicitly admits that I beat her on other occasions.)
  • Plaintiff will not move for default against your client on April 3, 2013.  (Implies that the plaintiff will move for a default on any other day, just not on April 3.)

As you can see from these examples, negative pregnants are ambiguous at best, and at worst can result in a harmful admission.  So carefully look over your denials and make sure that you’re not implicitly admitting something that you don’t intend to admit.

That is all for now …

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