Grammar Grinch

HAROLD, HELP!

Evidently, I wandered into good territory with my last Grammar Grinch article on homophones, near homophones, and just generally confusing words. The feedback I received from you lovely readers is that we all struggle with them. Harold Pinkley, Jr. was even kind enough to send me a list he’s been keeping over the years – and some were news to me!1 So in the spirit of keeping our language crisp and brilliant, before I retire this column, I bring you some of Mr. Pinkley’s inspired notes.2

Comprise—Compose

Comprise means to contain or include. Compose means to combine or make up. So according to dictionary.com, a pie comprises 8 slices, but 8 slices composes a pie. Well, right off the bat, it’s safe to safe I’ve been using that one wrong. Anyone else?

Meritorious—Meretricious

Yikes. Here’s a situation where you definitely don’t want to use the incorrect word. Meritorious is deserving of reward and praise. On the other hand, meretricious could not be more different, defined as deceptive and without value.

Emolument—Emollient

We love emolument. It’s a noun that indicates tips, salaries, or other profits made from employment. Emollient, again, is not even remotely the same. As a noun and verb, it pertains to an object or the act of moisturizing or relieving dryness. In a figurative sense, it is something that eased a process that had stalled, according to wordsmith Kathleen W. Curry.

Perspicuous—Perspicacious

“As adjectives, the difference between perspicuous and perspicacious is that perspicuous is clearly expressed, easy to understand; lucid. Perspicacious is (figuratively) of acute discernment; having keen insight; mentally perceptive.”3 I get it, but I can’t say I’m going to be speaking either of these words out loud anytime soon!

Eminent—Imminent—Immanent

Eminent: Someone or something that stands out above the others. Imminent: something that is happening soon. Immanent: Being within the limits of possible experience or knowledge. None of which should be confused with Eminem, recent Rock & Roll Hall of Fame inductee.

Pore—Pour

We all know pour, whether it’s our child’s bottle of milk or our bottle of wine. Pore, however, is to gaze intently or to meditate/reflect steadily. Such as said child poring over the Amazon toy catalog?

Flout—Flaunt

To flout is (1) to show contempt for or to scorn, or (2) to contemptuously ignore (especially rules or conventions). To flaunt is to exhibit or parade (something) in an ostentatious manner.4 I feel like a goose flouts and a peacock flaunts.

Assent—Ascent

Ascent is a noun meaning the act of rising upward. Think of it like the c in ascent is symbolic for climbing. Assent is a verb meaning to agree with or approve of something after careful consideration.

Broach—Brooch

Broach (verb) is to introduce a new subject into discussion. A brooch is a piece of jewelry help with a pin or clasp (often associated with your grandma5). After the will is ready, perhaps don’t immediately broach the subject of the brooch.

Complacent—Complaisant

Complacent is smug and self-satisfied. Complaisant is willing to do something to please another. However, they both derive from the Latin word complacere, meaning to please.

Defuse—Diffuse

Defuse is quite literal. It’s to remove the fuse from something. Diffuse, as both noun and verb, relates to the spreading of something or making it less concentrated. The SWAT teams diffuses the situation by defusing the bomb.

Disinterested—Uninterested

Disinterested is important to us lawyers. It means without a vested interest. Uninterested, however, is not showing interest.

Allude—Elude

If you allude, you indirectly reference something. But to elude, you evade, or escape perception or understanding.

Allusion—Illusion

Both come from the Latin word ludere – to play. Allusion, as above. Illusion may be defined as a misleading image presented to the vision, a perception of something objectively existing in such a way as to cause misinterpretation of its actual nature, or the state or fact of being intellectually deceived or misled.

Stationary—Stationery

Stationary is not moving or changing. Stationery helps us with that ‘e’ instead of ‘a’, meaning writing materials – think l‘e’tter.

Waiver—Waver

Waiver is another ever-so-important legal word. (1) intentional relinquishment of a right or privilege, (2) a dispensation, and (3) a deferment. Waver is less exciting. (1) to move unsteadily back and forth, (2) to vacillate, or (3) to tremble in sound. Don’t let your client waver about the waiver.

Censor—Censure

To censor means to remove, block, or interfere with the communication of another. However, censure is a word that gives everyone with a law license pause. To censure is to find fault with and criticize as blameworthy. As we know, it’s sometimes done publicly. Another yikes.

Fortuitous—Fortunate

Fortuitous is by chance or accident. Fortunate is lucky. But let’s be honest – fortuitous is more fun to say.

Duplicative—Duplicitous

Duplicative means repetitive or the same thing, again. Duplicitous, on the other hand, refers to being two-faced or deceptive.

My many thanks to Harold for his great list. Also, if you are a gin drinker, he has a great recipe for a real treat that I believe is called an Oxford Comma. I’ll let him share the recipe.

GRAMMAR GRINCH By: Sarah M. Booher

SMB Law (with Harold Pinkley, Jr.

University of Tennessee)

1 I’ll let you try these from his notes on your own: continual/continuous/constant, formulaic/formulistic/formalistic, and virulent/virile. 2 All definitions from mirriam-webster.com unless otherwise noted. 3 https://wikidiff.com/perspicuous/perspicacious. 4 https://grammarist.com/usage/flaunt-flout/ 5 For the record, when you google brooch, 1001 photos of Queen Elizabeth come up, so maybe more associated with her than your grandma.

BILL & PHIL’S GADGET OF THE MONTH By: Bill Ramsey

Neal & Harwell

By: Phil Hampton

METAVERSE: SUPER HIGHWAY OF THE FUTURE, OR ONLY A HI-TECH DEAD END?

For those of you who have attended this year’s Bill & Phil Show (and I know there aren’t many of you), we have been speaking about the Metaverse all year because the topic is so “trendy.” In fact, the theme of this year’s Bill & Phil presentation was entitled “Are You Ready for the Metaverse?” It has been a very fun topic for us, but we are not sure where this whole Metaverse thing is going. We have been following the progress of the Metaverse (or lack thereof) all year. At this point, we are still not sure what impact, if any, the Metaverse will have on society in general, or, more specifically, on the practice of law . . . at least in the foreseeable future.

Consequently, we thought that, at this time, we should provide our view of the present and future impact of the Metaverse on the practice of law. So here it is . . .

What Exactly is the Metaverse?

Wikipedia describes the term “Metaverse” as follows: “In futurism and science fiction, the Metaverse is a hypothetical iteration of the Internet as a single, universal and immersive virtual world that is facilitated by the use of virtual reality and augmented reality headsets. In colloquial use, a Metaverse is a network of 3D virtual worlds focused on social connection.” (That is so simple and clear, isn’t it?) Wikipedia goes on to point out that the term actually originated in a 1992 science fiction novel written by Neal Stephenson entitled “Snow Crash.” Matthew Ball, a tech author and thought leader, has been a leading voice on the emergence of the Metaverse and has written extensively on the subject on his eponymous website matthewball.vc and in a recently released book, “The Metaverse And How It Will Revolutionize Everything.”

Recent interest in Metaverse development is influenced by a concept called “Web3,” which is supposed to become a decentralized iteration of the Internet. If you will remember, so far, we have had basically Internet version one (or Web1), which was nothing more than a development by ARPA (Advanced Research Projects Agency) of the Department of Defense in the 1960s. The technology continued to develop into the 1960s and into the early 1980s. Then, in 1989, an English computer scientist, Tim Berners-Lee at CERN (the European Organization for Nuclear Research) developed a prototype of the World Wide Web, which was initially visioned as a document management system. Beginning in 1981, however, the technology was released outside of CERN, and it began to spread beginning late in 1991. In fact, the technology spread like wildfire and developed into what we now know as the World Wide Web and really, what we know of today, as the Internet. Today’s Web is referred to in a shorthand way as “Web2”, being distinguished by dynamic sites with user-created content, such as social media sites, videosharing apps, etc. Many view the Metaverse as the natural progression from Web1 to Web2 to Web3.

Nevertheless, the concept of Web3 or the Metaverse still seems very vague and ill-defined. In its present incarnation, the Metaverse is primarily a space for online video games, entertainment, and marketing. Multiplayer online games such as “World of Warcraft,” “Minecraft,” “Fortnite,” and the game creation platform “Roblox” are presently the major players in the “Metaverse” as it presently exists. In addition, superstars like Travis Scott, Justin Bieber, and Ariana Grande have held virtual events on the Metaverse with significant success. For example, Travis Scott’s appearance on Fortnite has been attended by nearly 28 million people. In fact, Nashville’s own Soccer Mommy has recently promoted her new album by hosting three days of events and a concert on Roblox. And, the Brooklyn Nets, an NBA team, has created the “Netaverse” that has provided a virtual broadcast of their games, so you could watch it as if you were at the court.

Of course, as most of you know, some of the biggest players in the tech world are becoming involved with the Metaverse. The most extreme example is Facebook. Facebook has now changed its name to “Meta” (short for “Meta Platforms, Inc.”) with Mark Zuckerberg asserting that the Metaverse is the future of technology and the future for his company. Unfortunately, it is not working out so well for Meta so far. Last year, Facebook had a market cap of over one trillion dollars, and now the company is worth $560 billion. Meta CEO Zuckerberg has warned that the technology necessary to enable the Metaverse is still 5 to 10 years away. Stockholders may not be that patient. Microsoft is also dabbling in the Metaverse. It acquired Activision Blizzard, which has technology that is the cutting-edge development platform for interactive and entertainment products that are the foundation of the Metaverse. Microsoft paid $70 billion for the company earlier this year, not a small purchase. Apple is also dipping its toe into the Metaverse, but in typical Apple fashion, it is being much more cautious and deliberate in its involvement. Apple is rumored to be developing its own proprietary set of goggles or glasses that can be used to interact in the 3D world of the Metaverse. It remains to be seen how far Apple will venture into this wild, wild virtual wilderness.

Suffice it to say, the Metaverse is still being built and will remain “under construction” for some time in the future. Currently there are several “worlds” in the Metaverse such as Otherside, Decentraland, the Sandbox, and so on. To date, 1.9 billion dollars’ worth of “land” has been sold in the Metaverse (and remember, this is all “virtual real estate”). There are night clubs, mini-golf facilities, shopping malls, poker lounges, and even a Sotheby’s Auction House. Other businesses include: Google, Facebook, Microsoft, Amazon, Apple, IBM, Chase Manhattan Bank, Adidas, Nike, and the list goes on and on.

Clearly, there is a lot of money and capital being poured into the Metaverse; but what effect will all this “virtual development” have on the practice of law?

Present and Future Impact of the Metaverse on the Practice of Law

As might be expected, in an effort not to be outdone, many large law firms (and some smaller ones) are buying “office space” in the Metaverse. ArentFox Schiff is in the Metaverse as are the DLA Piper Global Law Firm, Kirkland & Ellis, and several others. Morgan & Morgan even has a television spot seeking clients who have been injured in the Metaverse.

Many legal pundits assert that law firms should be investing in the Metaverse. Some argue that by having an office in the Metaverse, lawyers

will have a chance to increase their exposure to potential clients and reach them in new ways. They will have an advantage in handling Metaverserelated legal issues; and it’s a chance for a law firm to look really cool and cutting edge.

Migration into the Metaverse may take quite some time, however. Traditionally, the law and law firms have always lagged a step or two behind developing technology. Law firms and the law typically react to tech changes rather than getting out in front of them. There are many issues to be raised about transacting business and operating in the Metaverse. There is almost no established law relating to the Metaverse; and, in fact, there is little known about how the Metaverse works, and how it will work in the future.

Still, there are many opportunities for law firms such as creating so-called “smart contracts” that are self-executing contracts based on certain established parameters. There are opportunities for decentralized autonomous organizations (DAO). These are emerging corporate-type entities that do not have a central governing body. In fact, Tennessee has just legalized the creation of such entities in this State.

Lawyers that become familiar with the Metaverse, its technology and operation, can provide legal advice to those that are interested in purchasing space in the Metaverse, and how to protect digital assets, digital intellectual property, and other such transactional-type work for those that are participants in the Metaverse.

There are many opportunities for using the Metaverse in the litigation world as well. For example, an attorney can meet with a potential witness in the Metaverse in a way that is very realistic and looks like the potential witness and the lawyer are together in the same space. There can be virtual office meetings between and among attorneys preparing for trial in the Metaverse that will make it much more interactive and realistic. Depositions, expert witness testimony, and so forth all can be much more realistic and interactive even though the participants will be in remote locations.

The proof in trials, especially in criminal cases and accident cases, can be much more realistic. The jurors can be taken to a virtual world where the parties recreate their concepts of what events took place in a much more realistic manner. In fact, a Florida attorney (who is representing a person accused of attempted murder using a Dodge Viper to attack someone) filed a motion with the court to put “jurors in the driver’s seat through the use of the latest technology—virtual reality goggles.” The proof would be put on by requiring the jurors to wear virtual reality goggles while considering the expert testimony of an accident deconstructionist. (What would Jim Neal and Jack Norman think of this?)

In the Future, will Lawyers be Required to Participate in the Metaverse?

No pun intended, but “the jury is still out” on the Metaverse itself, much less the use of the Metaverse in the practice of law . . . much less lawyers’ involvement with it. Theoretically, the Metaverse would be a great place to interview witnesses and prepare for trial. It would be a great place to recreate reality for a trial. It would be a great place to have new and exciting areas and modes of practice.

However, as is evidenced from the discussion above, the Metaverse is not “ready for primetime.” It certainly is reliant upon large amounts of error-prone technology. And, the legal rules in the Metaverse are very ambiguous. Normal rules may not apply. It is very, very complicated, and there is not that much opportunity for a law practice in the Metaverse at this time.

Moreover, the practice of law has always relied on true, human interaction . . . empathy for one’s client; direct confrontation of adversaries; and skillful, in-person advocacy. It is hard to see how any of those things can be present in the Metaverse absent the creation of some sort of new virtual presence technology. This technology is still in its embryonic stages, and there is no prediction regarding whether it will live up to all of the hype it is presently receiving. Certainly, Meta (formerly Facebook) has had experience in its efforts in the Metaverse that has almost been devasting. Only time will tell whether the future holds a place in the Metaverse for the practice of law on a daily basis.

LEGAL UPDATE, continued from page 15

forensic technology continues to advance, and accordingly, the avenues of post-conviction relief will continue to evolve.

1 Barnes v. State, No. M2022-00367-CCA-R3-PC, LEXIS 438 (Tenn. Crim. App. Sep. 30, 2022). ² Id. at *1. 3 Id. at *7. 4 Id. 5 Id. 6 Id. 7 Id. (citing Tenn. Code Ann. §§ 40–30–401 through –413). 8 Id. at 2-3. 9 Id. 10 Id. at 2-3. 11 Id. 12 Id. at 2. 13 Id. at 3. 14 Id. at 4. 15 Id. 16 Id. at 3. 17 Id. at 4. 18 Id. 19 Id. 20 Id. 21 Id. at 5. 22 Id. at 6. 23 Id. (quoting Tenn. Code Ann. § 40–30–403). 24 Id. at 8-9 (quoting Tenn. Code Ann. § 40–30–404). 25 Id. 26 Id. at 9. 27 Id. at 9-10. 28 Id. at 10. 29 Id.