Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, August 18, 2019

Elegant variation: Spicing up some lawyerisms

Rarely does the 'Little Summer' linger until November, but at times its stay has been prolonged until quite late in the year's penultimate month.

-H.W. Fowler, sharing some elegant variation

Lawyers repeat themselves. A lot. We just can't help it. Our briefs star only a handful of characters and events--and we need to write about them down to the nitty details. So, yes, we keep repeating "the plaintiff alleges" for six pages straight. 

That doesn't mean we like it. Hammering on those same words, over and over, doesn't sound good. But as you've probably discovered: Swapping out repeated words for new ones is tricky business. You might just make things confusing because now your reader starts wondering: "Is this the same thing she was talking about before? Or something new?"

And let me also say: if you need to decide between repeating yourself or confusing your reader--repeat away. I can't imagine any good ever coming from confusing your reader. The distraction turns into minutes of flipping through pages, double-checking what means what.

That's precisely my suggested yardstick to you: If you find a repeated word too close to its doppelganger, ask whether freshening it up with some variation will bring any risk of confusion or distraction. If so, you have your answer. Don't swap in a new word just for the sake of variation if the costs aren't worth it.

So none of this:  

The lawyer filed his motion in the District of New York. The court ruled on the papers the next day. The filing was granted. 

The problem here is that shot-gunning different nouns for the same item--this close together--makes your effort at variation obvious. You also make your reader second-guess whether each is a different thing. 

For repeats this close, alternating in some unambiguous pronouns are usually the best bet:

The lawyer filed his motion in the District of New York. The court ruled on it the next day. The motion was granted. 

The answer to obvious repeats is often the same answer to any other clunky sentence--try rewriting the sentence from the ground up. You will nearly always find a better way to shift things around so that the repeated word doesn't even need to be said any more: 

The defendant moved to dismiss in the District of New York--and won.

But if you need to repeat a word and can vary without confusion, do consider diversifying.

Take dialogue tags. These are words that signal someone said something. We lawyers not only use these--but also what you might think of as argument tags: words that signal what someone argued.

Our legal writing is full of he “argues” this and she “claims” that. You don’t need to stick to these same tags to avoid confusing your readers. There are endless fresh words to use instead. And many of them can target imagery and emotions.

For argue, depending on the context, you could try "assert," "maintain," "insist," "profess," "declare," "urge," "deflect," "interject," "campaign for," "contend," "volunteer," "advocate," "postulate," and the list goes on. And this works for any repeated bland word. So if you repeat "admit" a lot, try spicing up with a "confess," "agreed" or "concede."

Look at this paragraph, which is from a real brief (I changed the names and what was taken). Notice the repetitive words and forms used to introduce what the party claims: 

Emily Park argues that she never saw who stole the cookie.  She further argues that the cookie just ‘disappeared.’ Park additionally argues that this vanishing cookie entitles her to damages. Park argues that her milk may have been stolen. She claims that the milk thief and the cookie thief are one and the same.  Park argues that this thief be brought to justice.

Now look what happens when we make these same words diverse in form and substance: 

Emily Park says that she never saw who stole the cookie.  The cookie, according to her, just ‘disappeared.’ Park claims that this vanishing cookie entitles her to damages, and potentially punitive ones.  Park also believes that her milk may have been stolen. She maintains that the milk thief and the cookie thief are one and the same. Park insists that this thief be brought to justice.

Another option for this problem of constantly writing about who said what is to simply let your reader know that a few sentences or paragraphs are all an argument or claim by a particular party or actor: 

Emily Park’s argument is as follows. She never saw who stole the cookie.  The cookie just ‘disappeared.’ This vanishing cookie entitles her to damages, and potentially punitive ones.  Her milk may have been stolen, and the milk thief and the cookie thief are one and the same. This thief be brought to justice.

Numbers require a final mention. Numbering reasons can be a powerful tool. But watch the problem if we stick to the “no elegant variation” rule here:

First, the plaintiff loses on jurisdiction. First, she has claimed no...

Second, the plaintiff fails to state a claim. First, she failed...   

You don’t need to keep using the word “first” to avoid confusing the reader about what “first” means. So diversify. For example:

To begin, the plaintiff loses on jurisdiction . . .

The plaintiff’s first misstep is … 

Go spice up your words. 

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here

https://lawprofessors.typepad.com/appellate_advocacy/2019/08/elegant-variation-spicing-up-some-lawyerisms--1.html

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