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The
Corporate Counselor
SUMMER 2013
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Published by
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RANDOM ACTS OF CITATION
AND OTHER PERILS OF
DICTIONARY-ITIS
By Richard H. Nakamura
Morris Polich & Purdy LLP
Banned. Belittled. Beloved. Such is the
confusing, love-hate relationship we have with the
reference book whose authority is impressed upon
impressionable young minds – the dictionary.
Now long past our tender years, we as lawyers
trade in the content of dictionaries. We string
words together in our contracts, our briefs, our
cross-examinations and closing arguments. And
when stuck, we turn to the dictionary. Courts do it.
Jurors do it. Everyone does it.
But are all dictionaries created equal? Not quite.
Some are esteemed; others less so. It’s a fair guess
that few lawyers are equipped to distinguish among
the competing brands of Webster’s, Random
House, Oxford, etc. An even smaller universe may
be aware of the rich history of lexicography and its
lessons for today’s legal practice. This article is a
very small and humble step toward closing those
gaps. Completeness and certitude are not its goals;
rather, the intent is to change the state-of-mind, to
foster an appreciation of the complexities and
nuances attending a citation to a dictionary, to
unlearn what we dutifully learned about the
dictionary.
We’ll take three small steps. First, to whet the
appetite, a quick look at contemporary moments
where the dictionary was the news. Just to get
the juices flowing. Next up, a look at the
dictionary’s standing in today’s courts. Lastly,
some tips. The bullet points are unabashedly
cribbed from a book that within months after its
publication last year was popping up as authority
in opinions from the California Courts of Appeal
and the California Supreme Court. So hang on.
We’re about to jump onto a learning curve that’s
definitely off the beaten track.
Say What ? Say Swahili?
Dictionaries matter. And Samuel Johnson’s
groundbreaking, 1775 work, A Dictionary of the
Corporate Counselor/Summer 2013 1

English Language is widely credited with making that
happen. 1 To Johnson, however, a lexicographer was “a
harmless drudge.” 2 Today, the work of the dictionary writer
may still be drudgery, but not harmless.
In 2010, a school district in Riverside County, California,
yanked Merriam-Webster’s 10th Collegiate Dictionary
edition off classroom shelves after a parent complained that
a child discovered the dictionary’s sexually graphic –
actually, rather clinical –
Morris Polich & Purdy LLP
Los Angeles Office
1055 West Seventh Street, 24th Floor
Los Angeles, CA 90017
Telephone: 213.891.9100
Fax: 213.488.1178
Website: www.mpplaw.com
The lawyers at Morris Polich &
Purdy LLP work with clients on a
national basis, representing clients’
interests in every state and many U.S.
possessions. MPP has offices in Los
Angeles, Irvine, San Diego, San
Francisco and Las Vegas, and a
wealth of international affiliations.
The Firm has a distinguished
representation in appellate advocacy,
and has served as appellate counsel
in over 100 published appellate
opinions. Eight are landmark
decisions from the California
Supreme Court.
up is not readily ascertainable.
definitions of oral sex. The
dictionary reportedly was in
the reference section of
fourth and fifth grade
classrooms, then removed
until a committee could
determine if it was “age
appropriate.” The dictionary
eventually returned to the
classroom, but students were
given permission slips so
that parents who did not
want their children
consulting Webster’s could
opt for an alternative. 3 The
title of the alternative
dictionary was not reported.
Webster’s 9th Collegiate –
the edition published before
the Riverside County
kerfuffle – had appeared on
the New York Times weekly
best seller list 195 times. 4
Whether that record
continued with Webster’s
10th after the oral sex blow
There is rich historical irony here. The dictionary’s
namesake deliberately excluded vulgar terms from his book .
Webster, according to one respected lexicographer, “omitted
fart and turd, for instance, and any term having sexual or
excretory meaning. He maintained an abhorrence of
indelicate words throughout his life and never entered them
in his dictionaries.” 5 The objecting parents in Riverside
County must have been channeling Noah Webster.
Parents are not the only group to have taken aim lately at a
dictionary. So have prison officials.
In 2001, the warden at Pelican Bay State Prison issued a
memorandum barring inmates from using publications
written in Swahili, Nahuatl, Runic or Celtic because those
languages were reportedly being used by inmates to pass
coded messages. The ban included dictionaries written in
those languages. Pursuant to this policy, an inmate was
denied access to Teach Yourself Swahili. His civil rights
claim was dismissed because prison officials were entitled
to qualified immunity. 6
As lawyers, however, our forum is neither the school
yard nor the prison yard. What does the law make of
the dictionary?
Do As We Say, Not As We Do.
We have a federal Dictionary Act. Set forth at 1 U.S.C.
§§ 1, et seq., the Dictionary Act contains a limited set
of default definitions for words both neutral and
controversial, i.e., vessel and vehicle; and marriage. 7
Congress amended the Dictionary Act last year. As of
this year, an insane person no longer includes a lunatic
– federally speaking. 8 Marriage is a work in progress.
But what of the dictionary in general?
Noah Webster wanted his squeaky-clean dictionary
endorsed by the Supreme Court. Chief Justice John
Marshall rejected the offer. 9 The latent hostility lives
on.
“Lexicographers,” declared one California Court of
Appeal, “are not generally the authors of our laws. If
they were, perhaps blind reference to dictionary
definitions of a statute’s terms would adequately
substitute for the process of judicial interpretation. As
it is, however, dictionaries can only aid in the
determination of the Legislature’s intent in the
enactment of a law.” 10 The California Supreme Court
was more direct: “To seek the meaning of a statute is
not simply to look up dictionary definitions and then
stitch together the results. Rather, it is to discern the
sense of the statute, and therefore its words, in the legal
and broader culture.” 11
Actions, however, may speak louder than words.
Despite repeated warnings from courts “not to make a
fortress out of a dictionary,” 12 their use of the dictionary
as an interpretive aid is on the rise. Scholars point out
that through the 2000-2001 and 2009-2010 terms of the
United States Supreme Court, the Justices referenced
dictionary definitions to define nearly 300 words or
phrases. 13 In contrast, in the quarter century between
1958 and 1983, the Court cited dictionaries an average
of five times per Term. 14
Five times per Term? Today’s Court meets and beats
that benchmark in a single opinion. In 2011, one
opinion looked to three different dictionaries to define
of, and two more dictionaries to define retain. Board
of Trustees of Leland Stanford Junior Univ. v. Roche
Molecular Systems, Inc. (2011) 563 U.S. __, 131 S.Ct.
2188, 2196-2197. 15 Last year, the Court cited a dozen
dictionaries to help it decide whether interpreter
included someone who translates written documents.
Taniguchi v. Kan Pacific Saipan, Ltd. (2012) 566 U.S.
__, 132 S.Ct. 1997, 2002-2003. 16 If that’s not a
fortress, what is?
How did the Court choose which dictionaries to use?
As Kirchmeier and Thumma point out, today’s court
2 Corporate Counselor / Summer 2013

“continues to use dictionaries at a high rate with little
guidance for parties, lawyers or others regarding when to
turn to dictionaries, which dictionaries to use, and how to
use dictionaries.” 17
So What’s A Lawyer To Do?
What are the rules? Is there a list of “citable” and “noncitable”
dictionaries? A lexicographic “A” list and “B”
list? Perhaps – but it’s tucked away, easy to miss.
Law review treatments on lexicography and the law tend to
run long. Scaling the Lexicon Fortress, for example,
weighs in at over 220 pages. Among non-legal
publications, even a general lexicographic treatment can be
taxing – Landau’s discussion, in paperback, runs 310
pages, excluding the extensive notes. Discerning the “in”
and “out” dictionaries from these texts can indeed be
drudgery.
But in February of 2013, the California Supreme Court
cited, for the first time, Reading Law: The Interpretation of
Legal Texts by United States Supreme Court Associate
Justice Antonin Scalia, and noted author and lecturer on
legal usage, Bryan A. Garner. 18 Otherwise innocuous, the
California Supreme Court’s citation to Reading Law was
notable for several reasons.
First, Reading Law had been published only seven months
earlier. Within three months of its publication, however,
California Courts of Appeal were already conferring
citation status upon Reading Law. 19
Second, the authors of Reading Law are still alive. Very
much alive – with one author a sitting associate justice on
the nation’s highest court, and the other a prolific lecturer
and speaker on legal usage. These are full-throttle,
American lawyers. As contemporary authority, it does not
get much more contemporary than this.
And last, but by no means least, Reading Law contains an
Appendix titled, “A Note On The Use Of Dictionaries.” 20
The Note delineates five “primary principles” about using
a dictionary in legal analysis. The principles merit a full
quotation:
“The primary principles to remember in using dictionaries
are these:
“• A dictionary definition states the core meaning of a
term. It cannot delineate the periphery.
“• Because common words typically have more than one
meaning, you must use the context in which a given word
appears to determine its aptest, most likely sense.
“• You must consult the prefatory material to understand
the principles on which the dictionary has been assembled.
The ordering of senses provides a classic example.
Although many people assume that the first sense listed in a
dictionary is the ‘main’ sense, that is often quite untrue.
[footnote omitted] Some dictionaries list senses from oldest
in the language (putting obsolete or archaic senses first) to
newest. Others list them according to current frequency.
Using a dictionary knowledgeably requires a close reading
of the principles discussed at
the outset.
“• Dictionaries tend to lag
behind linguistic realities –
so a term now known to have
first occurred in print in
1900 might not have made
its way into a dictionary until
1950 or even 2000. If you
are seeking to ascertain the
meaning of a term in an 1819
statute, it is generally quite
permissible to consult an
1828 dictionary.
“• Historical dictionaries,
such as the Oxford English
Dictionary (20 vol.; 2d ed.
1989; updated online) or the
out-of-print Century
Dictionary (12 vols.; last
revised 1914) are the most
reliable sources for historical
terms. But they are often
least useful for very recent
shifts in meaning.” 21
At last. A PowerPoint-like
slide to guide one’s use of a
dictionary. So crisp. So
American. And so hard to
obey.
Richard Nakamura works
with general counsel and
trial attorneys throughout the
country on appellate matters.
As the leader of MPP’s
Appellate Practice Group, he
specializes in the
unaccredited specialties of
simplicity, persuasiveness
on the merits, and always
keeping the court in mind.
He can be reached directly at
(213) 417-5335 or at
Rnakamura@mpplaw.com.
When’s the last time you
consulted the prefatory material of a dictionary to determine
how multiple definitions were ordered? It does make a
difference. For example, The American Heritage
Dictionary, 2d College Edition (1982) presents “the most
prevalent, contemporary sense or meaning of a word first,
with the other shades of meaning following logically from
this current, central concept.” 22 In contrast, Webster’s New
World College Dictionary, 3d Edition, takes the opposite
approach, arranging the senses in historical order, beginning
with word’s earliest sense. “Thus, the most common
present-day meaning of a word may appear near the end of
an entry.” 23
Reading Law also gives us what Scalia and Garner believe
are “the most useful and authoritative [dictionaries] for the
English language generally and for law.” 24 Their list is
broken into 50-year time spans, and begins with the period
1750-1800 and ends with the period 2001 to the present.
(Continued on page 6)
Corporate Counselor/Summer 2013 3

By: Roberta Kass
Associate General Counsel, Vice President
and Corporate Secretary
BreitBurn Energy Partners
Dear Fellow Corporate Counselors:
I hope you have all enjoyed this summer. The
Corporate Law Departments Section doesn’t meet
in August, and we use it to relax and give some
thought to the year ahead and the many goals we’ve
set for the Section for the coming year. We’re
looking forward to providing the Los Angeles
community of in-house practitioners with a variety
of educational, social and networking events in
2013 and 2014. Looking ahead, here are the
highlights of our planned activities in 2013 and
2014.
Institute for Corporate Counsel: December 3rd
one day seminar to be held at the California Club in
downtown Los Angeles. This collaboration
between the Section and the University of Southern
California Gould School of Law is now in its 32 nd
year. It is a premier event for in-house and outside
counsel to learn about legal developments, discuss
issues from their respective practices, and meet new
and known colleagues in the legal and business
communities in Los Angeles. The Institute
continues with its theme of “Developments in Law,
Politics and Business.” Some of the featured
speakers will be former Governor Pete Wilson,
California State Assembly Speaker John Perez and
L.A. City Attorney Mike Feuer. They will be on a
panel discussing the Past, Present and Future of
California and Los Angeles. In addition, the
panelists will include over 20 top counsel, including
former members of the Solicitor General’s Office,
the general counsel from Sourcefire, Toyota Motor
Sales, U.S.A. and the University of Southern
California, in house counsel from Flextronics
International, Occidental Petroleum Corporation
and U.S. Bank and L.A. Superior Court Judge
William Highberger. For more information, please
go to http://law.usc.edu/cle/icc/.
4 Corporate Counselor / Summer 2013
Corporate Roundtable 2014: The Corporate
Roundtable provides an opportunity for a smaller
group of general and senior in house counsel to
discuss trending legal issues and topics. The four
sessions in 2014 will be held Wednesday
evenings: January 15, January 29, February 12
and February 26 at the Los Angeles Athletic
Club. Each
evening will
begin with a
networking
reception,
followed by
dinner and
discussion.
The 2014
program is
still being
developed,
and we
welcome
hearing your
suggestions for relevant topics. The 2013
Corporate Roundtable was ably chaired by June
Baldwin, (SVP, General Counsel, Corporate and
Legal Affairs at KCETLink) and provoked lively
discussions on IP Strategy, Social Media and the
Foreign Corrupt Practices Act. Thank you to
each discussion leader and all those who
participated in the 2013 Corporate Roundtable.
Outstanding Corporate Counsel Award
(“OCCA”) Dinner: Spring 2014, with location
and honoree to be announced. This is the
Section’s major dinner event. Each year we
honor a leader of the in house Los Angeles legal
community. Our 2013 honoree was Sam
Fernandez, Senior Vice President and General
Counsel of the L.A. Dodgers, and the dinner was
a resounding success. Special thanks go to the
Chair of the 2013 OCCA dinner, Stefan Lawrence

(Senior Counsel, Wells Fargo & Company), Co-
Chair, Kathleen Paralusz (Senior Counsel, Northrop
Grumman Corporation) and all the members of the
Section’s Dinner Committee. It was great to have so
many of you at last year’s dinner, and we hope you
will join us in 2014 at the Section’s largest event.
Please enjoy a few photos on page 7.
Annual Meeting: The Annual Meeting of our
Section will be held in the late spring, and will give
our members and guests a chance to meet and
socialize in an interesting and fun venue. We held
the 2013 Annual Meeting at the Wells Fargo
Museum and were enriched by the remarks of Juan
Colato, the Museum’s curator. Thank you to
Executive Committee member Cheryl Vigna for
organizing the event.
I’d especially like to recognize and thank Randy
Morrow, for cheerfully editing The Corporate
Counselor for many years, and Bruce Carpenter who
served on the Executive Committee for twenty-three
years and wish him the best for his retirement from
the practice of law. Lastly, thank you to Gail
Coleman, our Program & Event Administrator, for
her tireless support of the Section.
We are always looking to improve our Section and
its relevance to our members. Please let me know if
you have ideas about how the Section can better
serve the needs of the in-house bar.
Best regards,
Roberta E. Kass
2013-2014 Chair, Corporate Law Departments
Section
rkass@breitburn.com
Editor:
Stefan S. Lawrence, Esq.
Wells Fargo & Company
333 South Grand Avenue, Suite 1040
Los Angeles, CA 90071
(213) 253-7420
Stefan.S.Lawrence@wellsfargo.com
The Corporate Counselor
If you are interested in submitting an article for consideration for a future edition of
The Corporate Counselor or would like to be on our mailing list, you may contact the
Editor for details.
Interested in Serving on the Section’s Executive Committee?
If you are an in-house counsel and are interested in being
considered for the Section’s Executive Committee, or if you
would like to bring to our attention someone in-house whom you
believe might be interested in serving on the Section’s Executive
Committee, please send your or the person’s name, contact
information and short bio to our Section’s Secretary, Stacey Olliff
(stacey.olliff@fandango.com), or to our Section Vice Chair,
Stefan Lawrence (stefan.s.lawrence@wellsfargo.com)
Corporate Counselor/Summer 2013 5

(Continued from page 3) 8. Pub.L. 112-231, § 2a, December 28, 2012, 126 Stat. 1619.
Along the way, we are treated to the authors’ views on certain
dictionaries. Webster’s Third New International Dictionary, 9. Looking It Up: Dictionaries and Statutory Interpretation (1994)
published in 1961, is to be “used cautiously because of its 107 Harv. L.Rev. 1437, 1438 n. 6.
frequent inclusion of doubtful, slipshod meanings without
adequate usage notes.” 25 Not on the list but called out early in 10. People v. Heffner (1977) 70 Cal.App.3d 643, 651.
the appendix is the 1980 edition of the Oxford American
Dictionary. That dictionary, in Scalia’s and Garner’s view, is
“unscholarly.” 26
11. State v. Altus Finance, S.A. (2005) 36 Cal.4th 1284, 1295-1296.
Among lexicographers, “that book is known
to have been hastily put together by two editors on short notice,
and very much on the cheap.” 27 If you prefer less pungent
criticism, Landau calls the OAD a “modest and flawed work”
that has “taken a step backward in lexicography.” 28 The OAD
1980 edition still gets favorable citations. 29
So beware. There is, as one SNOOT put it, a “seamy
underbelly” to American lexicography full of “ideological
strife and controversy and intrigue and nastiness and fervor on
a nearly hanging-chad scale.” 30 So far, that has been an
irrelevant battle for the lawyer or judge looking to cherry-pick
a definition from the multitude of offerings. That may – and
should – change.
If you must turn to a dictionary, choose carefully; if you must
choose among senses within a definition, choose those
carefully as well. Leave the pedantic flubdub to the academics.
___________________________________
1. M. Adams, What Samuel Johnson Really Did, Humanities,
October 2009, available at http://www.neh.gov/
humanities/2009/septemberoctober/feature/what-samueljohnson-really-did
2. S. Johnson, Dictionary of the English Language (1775).
Lexicographer: “a writer of dictionaries; a harmless drudge,
that busies himself in tracing the original, and detailing the
signification of words.”
3. Dictionary definition raises ruckus at Menifee school, LA
Times, January 26, 2010, at http://articles.latimes.com/2010/
jan/25/local/la-me-dictionary26-2010jan26 ; Banned dictionary
to return to Riverside County school, LA Times, January 27,
2010, at http://articles.latimes.com/2010/jan/27/local/la-medictionary27-2010jan27;
http://latimesblogs.latimes.com/
jacketcopy/2010/01/school-district-pulls-dictionaries-for-oralsex-definition.html
4. Merriam-Webster, Inc. v. Random House, Inc., (S.D.N.Y.
April 4, 1991), 1999 WL 50951, *2.
5. S.Landau, Dictionaries: The Art and Craft of Lexicography
59 (1989).
12. The quotation is from Judge Learned Hand’s opinion in Cabell
v. Markham (2nd Cir. 1945) 148 F.2d 737, 739 [“But it is one of the
surest indexes of a mature and developed jurisprudence not to make
a fortress out of a dictionary; but to remember that statutes always
have some purpose or object to accomplish, whose sympathetic and
imaginative discovery is the surest guide to their meaning.”]
13. Kirchmeier and Thumma, “Scaling the Lexicon Fortress: The
United States Supreme Court’s Use Of Dictionaries In the Twenty-
First Century,” 94 Marq. L.Rev. 77 (2010).
14. “Looking It Up: Dictionaries And Statutory Interpretation,” 107
Harv.L.Rev. 1437, 1438 (1994).
15. Of defined by reference to Webster’s Third New International
Dictionary 1565 (2002); New Oxford American Dictionary 1180
(2d ed. 2005); and Webster’s New Twentieth Century Dictionary
1241 (2d ed. 1979); Retain defined by reference to Webster’s New
Collegiate Dictionary 980 (1980); and American Heritage
Dictionary 1109 (1969).
16. American Heritage Dictionary 685 (1978); Scribner-Bantam
English Dictionary 476 (1977); Random House Dictionary of the
English Language 744 (1973); Oxford English Dictionary 416
(1933); Concise Oxford Dictionary of Current English 566 (6th ed.
1976); Chambers Twentieth Century Dictionary 686 (1973);
Black’s Law Dictionary, 954, 953 (rev. 4th ed. 1968); W. Anderson,
A Dictionary of Law 565 (1888); 1 B. Abbott, Dictionary of Terms
and Phrases Used In American or English Jurisprudence 639
(1878); Ballentine’s Law Dictionary 655, 654 (3d ed. 1969);
Webster’s Third New International Dictionary 1182 (1976); 12,000
Words: A Supplement to Webster’s Third 15a (1986).
17. Scaling the Lexicon Fortress, supra, at p. 78.
18. Apple, Inc. v. Superior Court (2013) 56 Cal.4th 128, 137, citing
Scalia and Garner, Reading Law: The Interpretation of Legal Texts
(2012).
19. Don Johnson Productions, Inc. v. Rysher Entertainment (2012)
209 Cal.App.4th 919, 934 (Second Appellate District, Division
Five); Grossman v. Park Fort Washington Association (2012) 212
Cal.App.4th 1128, 1133 (Fifth Appellate District).
6. Nelson v. Woodford (N.D.Cal., March 2, 2006) 2006 WL
571359, aff’d, (9th Cir. 2007) 249 Fed.Appx. 529.
7. 1 U.S.C. § 3 [vessel]; § 4 [vehicle]; § 7 [marriage].
6 Corporate Counselor / Summer 2013
20. Reading Law at pp. 415-420.
21. Reading Law, at pp. 418-419.
22. The American Heritage Dictionary, 2d College Edition,
Introduction 6 (1982).

23. Webster’s New World College Dictionary, 3d Edition,
“Guide to the Dictionary” xiv (1997).
24. Reading Law, at p. 419.
25. Id. at p. 422.
26. Id. at p. 75.
28. Landau, supra, at p. 347.
29. See, e.g., Traxler v. Entergy Gulf States, Inc. (Texas
Supreme Court 2012) 376 S.W.3d 742, 747.
30. D. Wallace, Tense Present: Democracy, English and the
Wars over Usage (April 2001), Harper’s Magazine. SNOOT
is Wallace’s acronym for Syntax Nudniks Of Our Time.
27. Id. at p. 415.
Wednesday, April 25
6 — 8 p.m.
801 South Grand
Hosted cocktails, beer, wine
& hors d’oeuvres
Invite a fellow in-house attorney
SPACE IS LIMITED—REGISTER NOW!!!
Corporate Counselor/Summer 2013 7

Welcome New Members
Brandi R. Steege
Mindspeed Technologies, Inc.
Brandt Ulisses Mori
SBE Entertainment Group
Chris Wallraff
International Lease Finance Corporaition
Christina Margeauz Zabat-Fran
St. John Knits Inc.
Jeffrey Jason Howell
Chicago Title Company
Joseph M. Hekmat
Eva Care Group
Liz Bush
Advanced Bionics
Marybeth Heydt
Wells Fargo & Company
Michael Paul Rasch, Jr.
Law Offices of Michael P. Rasch, Jr.
Ray C. Kim
Nations Direct
Robert Aicher
The American Society for Aesthetic Plastic Surgeons
Shireen Enayati
Westfield LLC
Steven H. Nagareda
LegalZoom.com, Inc.
Vijay Charles Bakhru
Dex
8 Corporate Counselor / Summer 2013