[Eugene Volokh, August 14, 2008 at 6:47pm] Trackbacks
Tortious vs. Tortuous:

A slip I caught myself making, though fortunately I caught it in time. A quick Westlaw search suggests others have made the slip, too.

(At some point, of course, each word may acquire the other word's meaning as an alternate meaning, and the Oxford English Dictionary does suggest there's been some element of that for centuries. But the OED still marks this as an error, which leads me to believe that the slippage is rare enough that, descriptively, it isn't yet standard -- and is in any event likely to needlessly annoy many readers.)

D. Appel:
What's annoying is that Word automatically "corrects" tortious, replacing it with tortuous.
8.14.2008 7:58pm
I think the big problem is MS Word spellchecker:
It recognizes tortuous as a word, but not tortious (at least in Word 2003).
8.14.2008 7:59pm
cirby (mail):
...and in much legal writing, discussion of the first word often becomes the second...
8.14.2008 8:26pm
wooga:
WordPerfect also marks tortious as wrong. So does this text box right here in Firefox 2. Really annoying.
8.14.2008 9:22pm
Anderson (mail):
Lord, "tortuous" seems actually to be the norm in the pleadings that I see -- possibly due to MS Word as D. Appel notes.

Serves lawyers right for not using WordPerfect ....
8.14.2008 9:23pm
Vernunft (mail) (www):
WordPerfect?! I'll stick with real programs.
8.14.2008 10:12pm
Paul G (mail):
Don't forget torturous, meaning long and winding. I hope for the day when a client or opponent does something that is a legal wrong requiring compensation, that physically hurts, and that is winding. Then, the opening sentence of the brief will be: "The defendant's actions were tortious, tortuous, and torturous." Someday.
8.14.2008 10:31pm
blog fiend (mail) (www):
A quicj Westlaw search. And cheap, too, for a law professor. That would have cost a law firm $200.

Not criticizing. Just pointing it out. It's amazing the information you can get hold of when money's not an issue.
8.14.2008 10:31pm
D-Day:
Ugh. Learned this one the hard way in the first week of my first job out of law school when Word autocorrected it.

Maybe wouldn't have been so bad if the partner hadn't been a former high school English teacher. But she was, and oh, it was bad.
8.15.2008 3:04am
D-Day:
Ugh. I learned this one the hard way in the first week of my first job out of law school when Word autocorrected it.

Maybe it wouldn't have been so bad if the partner hadn't been a former high school English teacher. But she was, and oh, it was bad.
8.15.2008 3:09am
John Burgess (mail) (www):
Blog Fiend: Your complaint falls as seed on stone. What do you imagine a non-lawyer, non-academic will be charged for such a search?

I know that Nexis/Lexis wants to charge me $3,000/mo. for access only to their media databases.
8.15.2008 3:14am
Simon Dodd (mail) (www):
I have a suspicion that a lot of the criticism Justice Thomas got for the McMillan dissent arises from a similar mistake by readers who either didn't notice or didn't appreciate the difference between tortious and torturous...
8.15.2008 10:14am
Stevethepatentguy (mail) (www):
1) Open a new word document
2) Type tortious
3) Hit the space bar
4) Watch the auto-correction happen
5) Mouse over tortuous to see the blue bar
6) Left click on the blue bar
7) Click on "Stop Automatically Correcting 'tortuous'"

Problem solved.

MS Word will also turn 'n-' into a typographer's 'n-dash --' which is very annoying when writing about nitrogen containing compounds.
8.15.2008 11:21am
DiverDan (mail):
The mistake of using "tortuous" or "torturous" instead of "tortious" is really very common, and has been around a long time - I remember laughing over this when I was just a summer clerk, in 1981, long before every lawyer had his own desktop computer with either Word or Wordperfect (which, contrary to the opinion of Vernunft, is FAR superior to Word in so many respects that Word continues to exist and thrive ONLY because of the dominant market position of Microsoft). The funniest mistake I think I've seen in a pleading was in a medical malpractice case where the patient had a heart attack during a heart catheterization; the plaintiff's counsel (or his associate or word processor) accused the doctor of "negligently cauterizing" the patient's heart. We DUH - I would think it would be negligent for ANYONE (other than maybe a torture professional or cruel executioner) to cauterize someone's heart.
8.15.2008 3:15pm
Proud to be a liberal :
You can add "tortious" to your dictionary. This problem just shows that a person cannot mindlessly use spellcheck but instead must review each and every change to see if it is right! (Also, spellcheck will only get words that are not words but will not identify words that are used incorrectly -- thus, I've seen "crapcakes" instead of "crabcakes."
8.15.2008 3:16pm
Bruce:
I'm guessing that the percentage of people who add words to their word processor dictionaries is extremely low, whether through lack of knowledge or time.
8.15.2008 3:29pm
Fred the Fourth (mail):
Diver Dan,
Actually, my daughter recently did a project testing a machine designed to do exactly that. Cauterize a heart, that is. In vivo, no less.
(OK, not the *whole* heart, just a tiny fistula in the wall separating the left and right ventricles.)
8.15.2008 3:44pm
James Fulford (mail):
Tortious is something you can be sued for, tortuous something twisty, (an argument or a winding road) and torturous means painful. They're all from the same root, the Latin for twist, since a tort is something gone awry, or twisted, and twisting was a form of torture. ( In the form of arm-twisting, it still is.)
8.15.2008 11:25pm
Bill Lever (mail):
"Tortious, tortuous and torturous" is even more fun than the basic test of "affect, effect" and (for those who have not learned the difference) "impact".
8.16.2008 12:14pm