IT'S NOT JUST WHAT YOU SAY, IT'S HOW YOU SAY IT
Imagine when a judge calls your case, the opposing attorney approaches the counsel table in a bizarre feathered outfit like the one in the picture. Someone listening to his argument on the radio might hear a brilliant presentation, but you and the judge may find it difficult to give it your complete attention. Content cannot be fully effective if the delivery is distracting.
Similarly, several common writing habits dilute the effect of strong briefs by shifting the reader’s attention from the point the writer wants to make to the way the writer tries to make it. One such habit is the use of clichés, which should be avoided like the plague and never employed in any way, shape, or form. A good rule of thumb is never to use a phrase you have heard more than once before. A brief full of prefabricated expressions shows that the writer’s mind has been on autopilot when she should have been thinking. Readers who conscientiously avoid clichés in their own writing often find them jarring when used by others.
Another is legalisms: each and every, herein, arguendo. These are not meaningful technical terms like rescission or estoppel, but are clumsy ways of expressing the commonplace concepts of all, here, and if. If you would not use such a phrase at a dinner party, you probably should not use it in a brief, either.
Although the English language is continuously evolving, even the most progressive judges may have conservative linguistic tastes. There are trends in written language that some believe have become permissive in formal writing, but as long as your cases are decided by people who may not have accepted those developments, it is better to avoid them. These include contractions (isn’t, don’t), split infinitives (to boldly go), and plural pronouns (they, them, and their) to refer to a single person of indeterminate sex. Some judges employ these devices in their own writing, but others do not, and may see their use as inappropriately casual or careless.
Legal writing is formal writing. With some readers, these usages will not detract from an argument, but there is no situation in which they will help. Do not let trite, careless, or colloquial compositional habits take your judges’ eyes off the ball.