By | 1st November 2011

Ask any group of people if they know the meanings of the words “synonym” and “antonym” and I guarantee a majority will know the definition of both. Ask the same group of people how they would define “contranym” and I am fairly certain you will be met with blank stares.

Rather like English law which is almost impossibly flexible and which accounts for its popularity around the world, the English language is full of words to describe different nuances of the same thing. We may not be able to match the Inuits and their countless words for “snow” but there are many instances in our language where different words describe the same thing.

It makes it all the more amusing when you come across a word which in itself can have two contradictory meanings – a contranym. Examples might be “oversight” or “dusting” or “buckle” or “fast.” And there are a number of others.

An oversight may be something overlooked or something you look over. Buckle can mean fasten or collapse. Fast is quick or fixed/stationary and dusting can be to remove dust or to sprinkle it!

Earwigging is said to come from the old wives’ tale that an earwig could burrow into a person’s head via the ear and poison the brain. However improbable that may seem, there is certainly support for the view that the term was coined in Parliament for the practice whereby members of the governing party would approach the chamber from behind the Speaker’s chair and as they passed by would whisper into the Speaker’s ear. Until the present Speaker, incumbents used to wear a full bottomed wig rather like judges so it was necessary to raise the corner of the wig to expose the ear, hence the term “earwigging.”

So far so good! However, I have recently learned that earwigging is also “to annoy or attempt to influence by private talk.” Further than that it is a legal term unique to the State of Mississippi.

The subject of earwigging is discussed by one James Haltom (associate at Burr & Forman LLP of Nashville Tennessee) in his article “Earwigging the Chancellor Prohibited: A Violation of Legal Ethics“.

It was the subject of a talk by Jim Greenlee, former District Attorney in Mississippi, at the recent LCA conference in relation to the trial of Mississippi attorney Richard “Dickie” Scruggs from which it was clear that under state law the practice of earwigging has come to mean improper ex parte communication, prohibited by Mississippi Chancery Court Rules.

At this stage I can imagine that one or two of you, while fascinated by this discourse into esoteric use of the English language, are beginning to wonder whether it is not time for lunch, so I will be brief.

The sloppy use of language can land you in trouble as I have discovered to my cost, see Spotted flying goats over London, 18th Aug 2011. All the more so, if it is jargon which is merely an example of sloppy language where it is used to confuse and to exclude. Lawyers and technologists are equally guilty of this. It really does not help as jargon only constitutes a terrible interference with understanding.

Regular readers will know that we have a jargon busting A to Z of e-Discovery terms on the right hand side of this blog’s home page and my message is simple. Earwigging may only be forbidden in one State of the Union but the assumption that everyone understands the words you use to describe a process familiar to you but not to the person with whom you are speaking is folly. As Oscar Wilde said “To assume is to make an “ASS” out of “U” and “ME”.

Incidentally, do you know the origin of the word “solicitor”? I think it comes from the Latin “sollicitus” which meant troubled or anxious. From there it was transformed into the verb “sollicitare” to entreat and from there to the French “soliciteur” which meant an agent or instigator and advocate and thence to someone who acts on behalf of others. You can imagine my concern for my continued wellbeing when entering the downtown Amtrak station in Boston at South Street when I was confronted by the warning “No soliciting!”

As you can see jargon can be misleading. Selection of an expert is a strategic decision. To select someone who only engages in jargon is likely to prove to be a poor decision.

Better to win battles by knowing the rules and the cases than by indulging in sharp boy tactics. At least you will know what you and they are talking about and you can safely leave earwigging to the lawyers in Mississippi!