By Tenielle Fordyce-Ruff

Variety is the spice of life, but not necessarily legal writing.  While we might want our writing to be interesting enough to keep the reader’s attention, and we certainly want our writing to persuade the reader that our position is correct, we likely don’t want it to be too spicy.

As Mark Twain noted: “A powerful agent is the right word. Whenever we come upon one of those intensely right words in a book or newspaper the resulting effect is physical as well as spiritual, and electrically prompt.”[i]

But if we want the power to persuade the reader through our writing, how do we go about it?  While the correct answer is myriad and detailed, the answer for today is through effective word usage.  Using effective words requires us to consider denotation, colloquial language, idioms, not-really-synonymous synonyms, and consistency.

Denotation

Denotation is a word’s definition.  While several words might have similar meanings, words also have a literal or primary meaning.  That primary meaning is the word’s denotation.  Let’s go back to Twain’s choice to use “right word.”  Nobel, proper, suitable, exact, accurate, correct, and even precise are all suggested synonyms for right. Yet none of these words had the correct denotation to work effectively, even though they share certain elements in their definitions.

Let’s try some substitutions to make this concept clear.  I’ll include the substituted word’s denotation after the sentence to help you see why the use of right was the right choice.

A powerful agent is the noble word.
(Noble’s denotation is, “possessing outstanding qualities, superiority.”)

A powerful agent is the proper word.
(Proper’s denotation is, “suitability, respectable, decorous and genteel.”)

A powerful agent is the suitable word.
(Suitable’s denotation is, “adapted to the purpose.”)

None of these words clearly communicates what Twain meant or wanted to emphasize.  So, when you are searching for just the right word or want to create a powerful, emphatic sentence, go beyond just checking the thesaurus and look at the denotation of each word you’re considering.

Colloquial Language

This problem pops up in my writing when I start a piece with a “brain dump” draft.  We use informal expressions and slang all the time when speaking, and when I’m writing to get words on paper and refuse to worry about word choice for a first draft, this type of colloquial language can sneak in.

Yet if we all speak this way, why not write this way, too?  The simple answer is that legal writers write for serious and professional reasons.  Our word choice should reflect the charges of our profession. For instance, even if a criminal defendant were a horrible human, it would be ill-advised to write to the court that he was a bad dude.

Idioms

Readers expect certain words to be used together or to be used in legal writing.  For instance, even though elude and avoid are synonyms, legal writers expect to read avoid liability, not elude liability.  Or, how badly do these sentences jar you?

My client agreed with the contract.
(You expected agreed to, didn’t you?)

The manufacturer wanted to do business without fear for a lawsuit.
(You expected fear of a lawsuit, didn’t you?)

The pro se litigant filled up a legal form.
(You expected filled out, didn’t you?)

When in doubt about idiomatic expressions in legal writing, consider checking a legal usage dictionary. Or if you’re a native English speaker, consider reading the sentence out loud to see if it sounds right.[ii]

Not-really-synonymous Synonyms

This is a type of imprecision that can creep into legal writing through sloppiness and can be especially problematic when discussing how rules work. Consider this:

The plaintiff had to prove the conditions of duty, breach, causation, and damages.  The factor of duty can be proven through. . . .

The problem here is that negligence has four elements. While the reader would likely be able to determine that the writer meant element, the use of condition as if it were a synonym of element will throw the reader for a moment and detract from the power and persuasion of the writing.

Likewise, some writers use prong, part, and step imprecisely or interchangeably when describing tests.  For tests, all parts must be satisfied, only one prong need be satisfied, and the steps must be satisfied in order.

This type of imprecision can also creep in when writers try to make their writing fancier and pick a similar-sounding word that has a very different meaning.

The saline point of this article is to be sure of your word usage.

Yes, this should read: The salient point of this article is to be sure of your word usage.  I don’t think my writing is that salty!

Consistency

Every year I have a student or two who struggle to unlearn elegant variation.[iii]  You might remember this concept from high school: using different terms for the same key point to avoid boring the reader.  While this might hold true for other forms of writing, the legal audience is different.

We have all been trained to carefully read and parse statutes, and in statutory construction, different terms mean different things.  We also tend to apply this idea to other forms of legal reading. Consider this:

Problem solving is one of the most essential skills in life. Regardless of who you are or what you do, you will face obstacles. How you deal with such challenges will often be a determining factor [sic] in how successful you are at life. While problems come in a wide variety of shapes and sizes, this article can give you a rough idea of how to solve one in a general sense.[iv]

The author has used (possibly) three different terms for the same idea.  When you read this, you had to pause to determine whether the author meant obstacles for the same idea as problem, and you had to pause again for challenges to determine if there was one, two, or three different ideas in this short paragraph.

Conclusion

When cooking up your next piece of legal writing, consider carefully how spicy and salty you want the writing to be.  Your reader would likely appreciate a precise piece of writing over one where she has to stop and consider the flavor and meaning of words.

Tenielle Fordyce-Ruff is an Associate Professor of Law and the Director of the Legal Research & Writing Program at Concordia University School of Law. She also serves as the editor for Carolina Academic Press’ state-specific legal research series. You can access all of her Advocate articles at https://works.bepress.com/tenielle-fordyce-ruff/.

[i] Mark Twain, Essay on William Dean Howells, at http://www.online-literature.com/twain/1325/.

[ii] Many idiomatic expresses rely on specific preposition usage with other parts of speech.  A helpful list of the most commonly used pairs in legal writing can be found in Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, & Style for the Legal Writer 280-83 (3d ed. 2009).

[iii] “The phrase elegant variation was coined during the 1920s by Henry Watson Fowler, the British philologist and author of A Dictionary of Modern English Usage (1926). At that time, the word elegant connoted over-refinement. That connotation of elegant is now forgotten, so elegant variation has become a confusing misnomer. Today, gratuitous variation would be more accurate; however, elegant variation remains in wide use.” Joe Roy, Elegant Variation (2) at http://clear-writing-with-mr-clarity.blogspot.com/2010/11/elegant-variation-2.html.

[iv] Joe Roy, Elegant Variation (2) at http://clear-writing-with-mr-clarity.blogspot.com/2010/11/elegant-variation-2.html.