Some Thoughts on Jargon
Some Thoughts on Jargon
Think Like a Lawyer, Don't Write Like a Victorian One
This article was originally published in the Cleveland Metropolitan Bar Journal in March 2022 and is reproduced here with the permission of the Cleveland Metropolitan Bar Association. The full issue of the journal as well as previous issues can be found here.
Many lawyers enter law school and law practice with a touch of imposter syndrome — at least, I did. Do I really deserve to be here? Will I ever be able to spot issues as quickly as the partners do? Will I ever understand International Shoe?
In the face of that anxiety, adopting legalisms and jargon offer a way to fit in: the comfort of familiar forms and a way to say, “I know the secret handshake.” That most of the cases in casebooks are decades old — from a time when flowery writing and flaunting vocabulary was in vogue — doesn’t help. These opinions leave the impression that, to belong, a lawyer must adopt foreign languages, run-on sentences, and opaque phrasing.
But legalese and jargon don’t suggest confidence; they often betray insecurity and lack of experience. The best legal writers strive to make their briefs understandable to lay readers as well as practitioners.
How do they do it? Here are a few simple suggestions:
Omit Needless Words (Especially Adjectives and Adverbs)
The writing guides are unanimous on this point: Howard Zinsser (“We are a society strangling in unnecessary words”); Strunk and White (“Omit needless words”); even George Orwell (“If it is possible to cut a word out, always cut it out.”). But what words are needless?
For one thing, empty modifiers like “clearly” or “very” add nothing to your point in 99.9 percent of cases. For another, adjectives and adverbs more generally are often redundant; they can be replaced by more vivid nouns or verbs. For example, replace “yelled loudly” with “raged” or “ranted.” Or replace “extremely cold” with “frigid.”
Using active voice also helps: It takes fewer words to say “Bob kicked John” than “John was kicked by Bob.” In general, though, it is a matter of proofreading and asking if there is a more concise way to make your point.
Avoid Latinisms
Lawyers like law Latin, but even they often must look it up. Cut out the middleman and state canons of construction in plain English (with the Latin in parenthesis if you must). Drop Latin logical operators like “a fortiori,” which beyond being unnecessary also carry the risk of being misused. And so on.
Unless there is no English alternative —as with habeas corpus or res judicata — there is really no reason to exhume dead tongues for a legal brief.
Prefer Simple Words to Pretentious Ones
Heretofore (just cut it), thereto (there), hereto (here), prior (before), subsequent (after), previous (before), promote (push), constitute (make up), individual (person), liquidate (trash, destroy). All these words — and many, many others — have shorter, simpler alternatives (see parentheticals for examples). Use them.
Eschew Stale Phrases
Finally, lawyers sometimes snatch a clever turn of phrase from something they read (usually a judicial opinion) or reach for a stale cliché to make their briefs more “colorful.” In general, don’t. Clever phrases, like “Congress doesn’t hide elephants in mouseholes” or clichés like “make a mountain out of molehill” are overused.
That said, if you can think of an analogy that is specific to your case and aids in understanding, you should use it.
Or as Orwell wrote in Politics and the English Language: “A newly invented metaphor assists thought by evoking a visual image ....” But “worn-out metaphors which have lost all evocative power ... are merely used because they save people the trouble of inventing phrases for themselves.” He also helpfully cites several examples to avoid, including “take up the cudgel for” and “toe the line.” In fact, if you have a few minutes, the whole essay is worth a read.
Conclusion
In short, the first rule of good brief writing is: Good legal writing is just good writing.
Law school introduces us to a new way of thinking and looking at the world. Those skills are critical, not least of all because they are how we earn a living. But remember: law school isn’t designed to train good writers. For that, we must look elsewhere.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
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