It will come as no surprise to our readers that I was an insufferable know-it-all as a child (not anymore though, no-sir-ee). My parents were thus inclined to send me away to visit my grandparents for a couple weeks each summer. The idea was that I would tire myself out and be less bothersome when I returned.
It was a pretty cool place all told, and I wiled away many an hour catching snakes and throwing rocks at things. There wasn't much to do when it got dark, however, except to read over the mountain of old Readers' Digests.
(Eds. note -- what a weird concept "it's a magazine for people who read! Next lets get cooking on that food for people who eat.")
Like every red-blooded child of the plains, my favorite column was "it pays to enrich your word power" which focused on common usage errors and contained a smattering of 20-point Scrabble words. I vividly remember the day the column was about the distinction between i.e., and e.g. Being 7, I hadn't ever heard anyone use either abbreviation. But I knew that if I just bided my time for long enough, I would get my chance to strike.
10 years later, my social studies teacher finally tripped up, and - Bam! I got detention and a pretty significant glare, but I still look back on it with fondness.
So, I was pleased as punch earlier this year when Judge Andrews issued his opinion explaining the proper use of "waive" and "forfeit," and noting that many practitioners used the former to incorrectly refer to situations where an argument was inadvertently omitted. For months I have been gleefully correcting this usage in briefs and adding increasingly smug comments ["technically, its just a sparkling forfeiture"].
But alas, time makes fools of us all. This week Judge Andrews issued another decision noting that there is a dispute between the Federal Circuit and the Third Circuit about the proper usage of "waiver:"
Plaintiffs’ motion thus advances arguments that have been waived . . .
I say “waived” because that is the language the Federal Circuit has used. Recently, it has become clear that the Third Circuit would use the word “forfeited” for the same concept.
Genzyme Corporation et al v. Novartis Gene Therapies, Inc., C.A. No. 21-1736-RGA, at 6 and n.8 (D. Del. Jan. 12, 2024) (Mem. Order).
Such is the pedant's curse.
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