Writing on Writing: Toxic Words
by Scott P. Stolley
Bryan Garner, the preeminent legal-writing scholar, has said: “If you approach your own writing mercilessly, your readers are sure to be merciful.” So, for example, you should be merciless in eliminating words that may impede the court’s comprehension.
Even more importantly, you should mercilessly eliminate what I call toxic words. These are words that, when used incorrectly or indiscriminately, can damage your case or your professional credibility. The following words are often toxic and should rarely, if ever, be used in a brief.
Disingenuous—I cringe when I see this word in a brief. It gets thrown around too freely, seemingly without knowledge of its meaning. Many lawyers seem to think that to be disingenuous is to be inconsistent or contradictory.
But the word means something much worse. One dictionary defines disingenuous as “not straightforward or candid.” Synonyms for disingenuous include deceitful, deceptive, dishonest, misleading and untruthful.
So, when you say that the other side is being disingenuous, you are doing more than accusing them of being inconsistent. You are effectively calling counsel a liar. That is a serious accusation that should almost never appear in a brief.
If your opponent is being inconsistent or contradictory, just say that. If you think worse of your opponent, then say something like “The defendant misunderstands the facts,” or “The plaintiff misreads the case law.” You can point out that your opponent is wrong without accusing them of lying.
Specious—This word is a close cousin to disingenuous. It means “having superficial appeal but false.” So it does not necessarily accuse counsel of lying. But it comes close, especially when you consider that some synonyms for specious are bogus, deceptive, fake, fallacious, misleading and phony.
Overall, it is best to avoid this word, since it is potentially too accusatory. And, because many people don’t understand its meaning, it makes sense to avoid the word anyway.
Clearly—It is common to see briefs with statements like “Clearly, the defendant is wrong,” or “Clearly, that is not the law.” It is ironic, but the statement that follows “clearly” is usually not clear. What follows is usually some conclusory, ipse dixit statement that is subject to question.
So the word “clearly” weakens your argument. The same is true of its allies: obviously, undeniably, plainly, patently, undoubtedly and incontestably. You are better off omitting those words. Your writing will be stronger, because courts reflexively question what follows when they see “clearly” or its allies.
Woefully—It is not unusual to see a brief containing a statement such as “The appellant’s statement of facts is woefully inadequate,” or “The appellee’s analysis is woefully off the mark.” Used in this way, “woefully” is almost always hyperbole. Worse, it is hyperbole that calls attention to itself, because something about that word naturally captures a reader’s mind.
Experts uniformly caution against any hyperbole in legal writing, as it is prone to weaken your argument. That goes double for hyperbole that calls attention to itself.
Other examples of hyperbolic phrases are blissful ignorance, grievous error, especially egregious, utter fallacy, utterly wrong and completely unsupported. How do you avoid such hyperbole? The best solution is to omit the adjectives and adverbs. Let the nouns and verbs do your talking.
He—You ask: How can this male personal pronoun be toxic? Answer: Precisely because it is male, it excludes the female.
So if you write “When a judge enters a judgment, he must do so in writing,” you are guilty of sexist writing. This is toxic because it automatically offends some percentage of both the male and female populations.
Some have suggested that a solution is to use contrivances such as he/she or s/he. These are abominations to be avoided. Even worse is s/he/it. Think about how that would be pronounced.
A better solution is to rewrite the sentence to avoid gender (“Judges must enter judgments in writing”), to include both genders (“When a judge enters a judgment, he or she must do so in writing”), or to use a plural pronoun (“When judges enter judgments, they must do so in writing”).
The Court must . . . .—This phrase is acceptable when you are telling the court something routine—such as that the court must follow a certain standard of review. But it can become toxic when you are telling the court how it must rule. Courts usually resist being told that they have no option but to rule a certain way. As with the other toxic words, this is not the best way to endear yourself to the court.
Scott P. Stolley is the leader of the Appellate Practice Group at Thompson & Knight LLP in Dallas. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. He can be reached at firstname.lastname@example.org.