New York Personal Injury Law Blog » Legal Writing


January 12th, 2010

Why Use Orthogonal?

A confluence of two events:

Last week, wordsmith extraordinaire Bryan Garner twitted this little gem of a quote:

“Some of the worst things ever written have been due to an avoidance of the ordinary word.” — Henry Bett

Fast forward to yesterday, and in the US Supreme Court, University of Michigan law professor Richard Friedman was arguing the Constitution’s Confontation Clause and used “orthogonal” to signify propositions that are extraneous or irrelevant to each other.

Don’t feel bad if you don’t know what the word means. Neither did justices Roberts or Scalia, and probably several others. Prof. Friedman was forced to explain, and thereby detracted from his argument. He sheepishly confessed, “That is a bit of professorship creeping in, I suppose.”

And that’s called being too smart by half, where there is such a desire to prove you’re smart that you lose your audience. And that’s just dumb.

A well-made argument, like a well-written brief, shouldn’t make make people work to figure it out. It should come easily and naturally, and lend itself to being received while having the feet up on the coffee table with a drink at hand.

More at Volokh from Orin Kerr, who has a transcript of the exchange, and who notes that the Supreme Court has never used the word “orthogonal” in a written opinion. Nor is it likely to, I might add, in my lifetime.

Update: Scott Greenfield also wrote about orthogonal this morning, with a contrary view:

Did it distract from his point? Sure, though the point that the argument he was challenging was tangential was hardly difficult to follow. Did it eat up time? Obviously, though not much. Did it break the tension, allow Friedman to relax as he moved forward and create an endearing moment that will enhance Friedman’s likability and hence credibility to all wings of the court. You bet.

Eugene Volokh seems to agree that use of orthogonal was a distraction.
Update – 1/25/10 – And the verdict is in: Orthogonal does not appear in the decision.

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