Over the weekend, W. Virginia Chief Justice Beth Walker tweeted out a list of words that are banned from her opinions. It’s a good list, and one that all lawyers should note, as these words don’t belong in briefs either.
I’ve written before about crappy legal writing, from both the bar and the bench. It’s not that concise writing will necessarily win your client’s case but that at least your arguments can be appreciated. Far worse than writing a losing argument is writing an argument that isn’t even read because it makes the eyes glaze over.
Lawyers are (in)famous for cluttering our letters and briefs with pretentious, and wholly unnecessary, language, thereby distracting from the point.
A good quote to keep in mind is this gem that legal guru Bryan Garner tweeted out many years ago:
“Some of the worst things ever written have been due to an avoidance of the ordinary word.” — Henry Bett
A simple and favorite example from Garner of cluttering language is the humble transmittal letter that says, “Enclosed please find…” as if the recipient must go hunting for something.
My personal favorite are the openings to attorney affirmations that declare the writer is “duly admitted” to practice law. Is there any other kind of admission to practice other than duly?
Without further ado, these are the words that CJ Walker has banned, and with a follow-up of a few additional suggestions that came in response via Twitter. Rather than seeing that list buried in the billions of other Twitter messages, I preserve them here for easy access.
And now some others from her commentariat:
- duly
- utilize
- at bar
- impacted
- heretofore
- the undersigned
Since the function of an advocate it to tell a story to engage the reader and persuade, and the use of the stilted legalese distracts from that goal, the conclusion should be obvious. But, for some reason, it continues on.
These discussions inevitably stray from good writing through the avoidance of unnecessary jargon (which is not at all the same thing as necessary jargon), to pet peeves. “Impacted” is a bog standard English word that happened to come up on the Wheel of Peevery. As for “utilize,” while it often is simply a prolix synonym for “use,” the two words don’t convey precisely the same range of meaning. See the note at https://www.merriam-webster.com/dictionary/utilize.
I am reminded of the time a professional career adviser critiqued my resume for using “effect” as a verb. I pointed out that “effect” in fact has a sense as a verb that is entirely different from “affect,” and that I had used it correctly. The critique stood, on the grounds that there was a decent chance the person reading the resume didn’t know that, and would trash can it because of the supposed mistake. Point taken. I changed it.
“clearly”
“including, but not limited to”
“i.e.” when meaning “e.g.”
I use “herein.”
I can’t speak highly enough about Dreyer’s English. I’m working on a program for the Westchester County Bar Association on writing, and thus putting a large target on my back.
“including, but not limited to”
While this phrase is redundant and formulaic, I will occasionally use a stylistic variant to stress the point that my summary of injuries includes only the most significant one(s):
“Including (but not limited to)…”
i don’t see anything wrong with “per” since it is a faster way of saying “as stated by” or “as stated in”. otherwise i hereby approve this testament to linguistic brevity and, moreover, the indisputably important focus it provides on clarity of writing, lack of redundancy, and overall emphasis on economy of language. heretofore.