Above the Law

Confusing these terms is a persistent error in legal and other writing.

Forego traditionally means “to go before; to precede in time or place.” But it’s most common in the participial forms foregone and, less often, foregoing.

    Ex.:  The outcome was a foregone conclusion.
    Ex.: In an effective brief, the discussion flows from the foregoing statement of facts.
    Ex.: The agenda states that the secretary’s report will forego the board’s vote. (Rare.)

Forgo means “to do without; to pass up voluntarily; waive; renounce.”

    Ex. He will forgo the claim to the property if Smith settles before the trial starts.
    Ex.: Don’t forgo the opportunity to persuade the judge on the first page of your brief.

Here’s a good way to remember the distinction: think of fore as in before (things in sequence), and think of forgo’s resemblance to forget (a common reason that things are not done). One of the most common errors in legal and other writing is the use of forego where forgo is meant. For example:

  • “[T]he record does not indicate the degree of counsel’s awareness or, more important, whether the decision to forego [read forgo] presentation of such evidence was premised upon strategic or tactical concerns.” Commonwealth v. Hughes, 865 A.2d 761, 814 (Pa. 2004) (forego used for forgo four times).
  • “But the eye-popping purchase price offered . . . raises fears that to recoup its investment, Clipper would forego [read forgo] its subsidies and attempt to raise rents, eventually forcing out many of Starrett’s 14,000 tenants.” “Protecting Affordable Housing,” N.Y. Times, 18 Feb. 2007, § 14, at 11.

How common is the misuse? It’s so common that modern dictionaries list forego as a variant of forgo. In 1983, the President’s Commission for the Study of Ethical Problems in Medicine used it in the title and throughout its report “Deciding to Forego Life-Sustaining Treatment.” It wasn’t changed when the report was updated in 2006.

The opposite mistake — misusing forgo for forego — is less common:

  • “Based on the forgoing [read foregoing] authorities, we hold that the allegations … state a cause of action … .” Garrido v. Burger King Corp., 558 So.2d 79, 83 (Fla. Dist. Ct. App. 1990).

Forewent and forwent are the past-tense forms, foregone and forgone the pastparticiples. A foregone conclusion is a predictable result (the conclusion “went before” the question because everyone knew the answer before the question was posed). But be careful not to use foregone when forgone is intended {the lawyer explained that her client had foregone [read forgone] settlement of the claim by refusing to respond to the creditor’s calls and e-mails}.

We hope that the foregoing discussion will help you forgo any confusion.

Sources:

Garner’s Dictionary of Legal Usage 371-72 (3d ed. 2011).
Eric Partridge, Usage and Abusage 122 (1982).
R.W. Burchfield, The New Fowler’s Modern English Usage 306 (3d ed. 1996).
Merriam-Webster’s Collegiate Dictionary 490-91 (11th ed. 2011).

Thanks to Jeffrey R. Babbin for suggesting this topic.

Bryan A. Garner, President of LawProse Inc., is the most prolific CLE presenter in the U.S., having trained more than 150,000 lawyers and judges. His book — most prominently Black’s Law Dictionary and Garner’s Modern American Usage — have been cited as authority by every state and federal appellate court, including the highest. For more about him, go to www.lawprose.org. To follow him on Twitter: @bryanagarner.

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