There may be no group of people more acutely sensitive to language usage than attorneys. And for good reason. Words are slippery creatures full of connotations and pitfalls. Choosing the correct verbiage can be the difference between convincing and offending, between a point made or missed. Mark Twain once commented on the significance of word choices: “The difference between the almost right word and the right word is really a large matter. ’Tis the difference between the lightning bug and the lightning.” I read that statement about 15 years ago, and the truth of it has never left me.
In Stephen King’s On Writing, he likewise wrote about the importance of using the right words: “Remember that the basic rule of vocabulary is use the first word that comes to your mind, if it is appropriate and colorful. If you hesitate and cogitate, you will come up with another word – of course you will, there’s always another word – but it probably won’t be as good as your first one, or as close to what you really mean.”
Using the Right Words Matters
But today’s topic is not just a philosophical exercise. Using the right words makes a difference in whether or not a judge takes your point, or whether your demand letter is understood. Consider this statement made in LawyerSmack by Michael Barnett, a felony prosecutor in Kentucky, about the time you have to make an impression on judges:
“The practice of state criminal law is very seat-of-your-pants. Unlike in law school or fancy appellate courts, state trial judges don’t have the time or inclination to read a million cases and suss out the specific differences in each one and try to divine the perfect rule to apply to the case at bar. They kind of wing it in a single hour-long hearing… So the tiny nuances of how different states have applied a particular exception to a constitutional doctrine differently over the decades don’t come into play.”
By and large, the same judges who are hearing criminal matters are also hearing civil cases, and the same rule applies. When you’re writing a motion, keep your audience in mind. Here’s a joke (also relayed to me by Michael Barnett) that further illustrates the point:
A Supreme Court justice, an appellate judge, and a district-court judge are duck hunting together. They’re each squatted in the blind when a bird takes flight.
The Supreme Court justice, being the senior member of the troupe, raises his shotgun. He thinks, “Is this a duck? By comparison to other birds I’ve dealt with before, it certainly could be a duck. But before I take the rash step of pulling the trigger, I should carefully consider the social and environmental policy considerations…”
The duck is long gone.
Another bird takes flight. The appellate judge raises his shotgun and begins taking aim. He thinks, “Is this a duck? I can apply a multi-factor balancing test to make the determination. Obviously, several factors weigh in favor of its being a duck, including its wings, bill, and coloration. But I haven’t heard it quack, and I’m not sure of its diet. And if it’s not a duck, I don’t want to set a precedent that…”
The duck is long gone.
A third bird takes flight. This time, the district court judge raises his shotgun, and **BLAM!**, blows it out of the air. As it’s falling, he thinks, “I sure hope that was a duck.”
The trial judge has a limited amount of time and attention she’s willing or able to devote to your motion. Conduct yourself accordingly, and to borrow from John Mayer, “Say what you need to say.”
Use Direct, Unambiguous Language
Your writing should be easily consumable and as direct as possible. One of the worst things you can do is douse you’re writing in legalese or unnecessarily complicated language. For example, if you’re objecting to the broad nature of a discovery request, you might rightly respond, “Defendant objects to this request because it is not properly limited in time and scope.” Everyone knows exactly what you’re saying. It doesn’t do to object to “the request’s failure to subject itself to temporal limitation.” Everyone will eventually get to what you’re saying, but nobody has time for that.
As for ambiguity, consider the language in a demand letter I received some time ago: “My clients will agree to settle both claims for $20,000.00, independently.” Once we got into the case and took the party depositions, I evaluated the case and made a recommendation to my client. Once I got authority, I attempted to accept the plaintiffs’ settlement demand of $20,000.00. I was immediately rebuffed and informed the demand was not a global demand, but rather each plaintiff was demanding $20,000.00. This, of course, stalled settlement discussions.
Ambiguity isn’t just a matter of words but also sentence structure. The Maryland Court of Appeals made the following statement in Att’y Grievance Comm’n v. Gilbert: “At the threshold, we acknowledge the obvious, that an attorney’s use, and conviction of possession of, cocaine and, indeed, of any controlled dangerous substance, because, as we have held, it undermines the administration of justice, is extremely serious and cannot be condoned.” Commenting on the opinion, attorney Bryan Cox out of Washington, D.C. stated with not a little irony:
I read that as nonsensical because it’s a sentence, which speaks of many things, and contains many commas, and it is very long, because it has many words, indeed, it appears to have very very many words indeed, and that is bad, because when you have that many words, and that many commas, and that many antecedents and ands, and clauses, and so on, it becomes confusing, this is why you should try to speak like Trump, who speaks like a third grader, so that people can understand you, and so that you can eschew obfuscation wherever and whenever and whatever possible.
Wordiness happens. Bad sentence structure happens. Poor word choices happen. But you can minimize these things by realizing that everyone writes crappy first drafts and by proofreading your work. Good writing doesn’t happen by accident. It requires intentionality. But the result is a product that is more effective and decidedly more likely to positively affect the intended audience.
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Photo by Ricardo Faria.