Four Ways to Harness the Power of Words in Your Legal Writing
Learn how to use the power of words to your advantage in your legal writing.
Words are free. It's how you use them that may cost you.
Rev. J Martin
There's a carefully-guarded secret among judges and senior attorneys. It's a secret you won't often hear them mention out loud, lest they hurt your feelings. But nearly all of them are in on it.
The secret is that your bad legal writing goes in the trash.
Tossing your brief may seem harsh. When I have this talk with my law students, they certainly think so. But can you blame your readers? If it's a judge, they have 300-plus cases on their docket. Drowning in briefs and motions and exhibits—if your brief isn't worth reading, why would they?
Briefs can go bad in many ways, but usually, it starts with the words. Many are dull, flimsy, or flat. In a word: Boring. And the sentences bury their points in piles of needless nouns, descriptors, and glue words, with the reader shouldering the work of sorting the useful from the useless. The combo of boredom and denseness convinces the reader that their time will be better spent tracking down the answers on their own.
But while the wrong words can tank your brief, the right ones can transform it into something powerful: A vehicle to change the minds of even your most skeptical readers.
I've talked about a magical method to pare down your sentences to the words that matter—content word editing. This simple technique is popular and works. But we talked only about cutting the excess, not how to improve the words themselves.
So I thought I'd share some methods for polishing up your words. But before going there, consider a few principles that prop up these methods—straight from cognitive science.
First, we need our readers to remember what we write. And we are working uphill. We all hear about studies showing that readers retain only a tiny fraction of what they read. Imagine how true that is for our legal readers, who are harried and distracted to begin with. One way to make our words memorable is to use ones that will be easy to visualize. By one study, words that created visual images were retained over 50% better than blander versions. Another helpful principle is to remember the power of narrative: People think in stories and remember in stories. So words that tell vivid narratives stick better.
Second, our writing should be easy to process. Fluency refers to how easy it is for your reader to process your writing. It helps your reader get wrapped up in your voice and shut out the distractions and skepticism. Simple and familiar words—and transitions—are just some of what makes your writing fluent.
Third, persuasion works best when it's subtle. People don't like being told what to think. So you're better off choosing words that lead your reader to a helpful perspective—but without forcing them into it.
Let's see how we can put these principles to work in our words.
Nouns to Remember: Familiar, Short, and Specific
As Stendhal said: "Only great minds can afford a simple style." Simple words are usually the best ones. They are easier to read and easier to process. Why did President Lincoln's best speeches use the shortest, simplest, and most familiar words? In the Gettysburg Address and Second Inaugural Address (widely considered to be his two best), nearly 75% of Lincoln's words have a single syllable. That style works.
To achieve this easy reading: Prefer words with few syllables, words that are familiar, and words that are specific rather than vague. This explains why so many people cite the following Justice Roberts passage as among their favorite pieces of legal writing:
This passage is full of the simple and familiar: "a lone man on the corner," and "cash handed over." And Justice Roberts opts for specific words over vague ones. So rather than say that the officer made "many" drug busts, Roberts says he made "fifteen, twenty" of them.
To write like this, prefer the shorter, more familiar, and more specific.
Go with Shorter, More Familiar Words
Try opting for shorter versions of words—and versions that will be more familiar to your reader (not words that we read only in judicial opinions and financial reports). Below are a few examples.
"Money" or "cash" instead of "funds"
"Pay" instead of "remunerate"
"About" instead of "regarding" or "with regard to"
“After” instead of “subsequent to” or "thereafter"
"Do" instead of "accomplish"
"Gave" instead of "accorded"
"So" instead of "accordingly"
"Next to" instead of "adjacent to"
"Allow" instead of "afford"
"Say" or "said" instead of "expressed" or "statement"
“Here” instead of “instant case”
“Also" instead of “furthermore” or “additionally”
"Some" or "many" instead of "a number of"
“Shows" instead of “demonstrates”
“Fire” instead of “terminate"
"To" instead of "as a means of"
Go with specific words over vague ones
Lean towards the specific and away from the vague. Specific words are easier to visualize and remember. Of course, sometimes you'd prefer to take the spotlight off a word or idea—if that's the case, by all means, go with the nebulous. But otherwise, stick with the specific. For example:
"The brawl" instead of "the incident"
"Stole $500" instead of "theft of funds"
"Three broken ribs" instead of "serious injuries"
"The police's search" instead of "the underlying act"
"Remember last year's stock price dip" instead of "Remember the event that happened last year"
Verbs That Move: Visual, Active, and Targeted
Verbs are the engines of our sentences. Their potential to create imagery and engagement is profound. And harnessing their power is a cornerstone of great writing.
Cut Bland "State of Being" Verbs; Prefer Active and Visual Verbs
The "state of being" verbs tell your reader little, save that you "are" or that something "is." The verb is silent, letting other words do the work. Here are several:
We can rev up our writing by simply looking for chances to replace these silent verbs with more visual, active ones. I put together a list of hundreds of concrete and active verbs to give you some inspiration.
Check out how Justice Holmes does it. Instead of using bland verbs like most lawyers:
Justice Holmes uses concrete and active verbs that move:
Here are some other great examples of lawyers and judges nixing bland state-of-being verbs for better ones.
Judge Jennifer Dorsey:
Judge Carlos Bea:
Judge Jay Bybee:
Or take two passages from the Obergefell decision.
First, Justice Kennedy:
Now Justice Roberts:
Don't worry about replacing every one of your state-of-being verbs, but figuring out when a state-of-being verb ~~is the culprit~~ creates a problem—and finding a better, more powerful verb to replace it—~~is what~~ will make you a better writer.
Pick Verbs That Will Evoke Targeted Images
Simply using more active and visual verbs will strengthen your writing. But to take your writing a bit farther, become comfortable with the subtle effects you can achieve by selecting one verb over another.
This first example is the bland "state of being" version we shouldn't prefer. The second is active because at least you see the man moving. But the third version is an example of a targeted verb—a verb meant to evoke a specific image (Note: Several of the above examples, like "unraveling," are targeted verbs that match up with the content).
Here's another set of examples:
And one more:
If you don't believe there are enough verbs to evoke just the right image you're looking for, peruse your options for our first verb above, "walk":
Turn Nominalizations Into Verbs
Always look out for nominalizations, also known as Zombie Nouns. These are verbs in nouns' clothing, often ending in -ion.
The court made a determination on three of the counts.
The court resolved three of the counts.
The cases are not in agreement on this point.
The cases disagree on this point.
Descriptors That Disappear: Subtly Use Descriptors and Only When They Help
Nothing bogs down your writing like excessive descriptors. Please: Let nouns and verbs do the heavy lifting. Too many adjectives—and especially adverbs—trigger your readers' skepticism, slow down the pace, and disrupt your fluency. There is a reason that Stephen King and other great writers urge us to kick these.
After all, as A.A. Patawaran points out:
This is a perfect example of descriptors bogging down the writing:
Excising those descriptors and focusing on strong nouns and verbs cuts clutter and hones the points. Consider this example, courtesy of Justice Kagan:
Or take this snippet from another federal brief:
Much more effective without the descriptors:
Same with these samples, also from federal filings:
This case is the absolute epitome of a big corporation attempting to insidiously and vexatiously hurt a smaller one.
This is a case of a corporate giant bullying a small business.
The plaintiff sustained horrible and repeated injuries.
The plaintiff snapped three bones in his arm, twice.
Courts move as quickly as possible to review motions.
Courts review motions within days.
The lawyers presented a thorough and exhaustive defense.
The lawyers mustered every argument they could.
That's not to say that you should never use descriptors. They can be a force for good. For one, descriptors occasionally convey important information that the nouns and verbs can't muster on their own. But on those rare occasions when a descriptor will help—choose carefully. Empty intensifiers, like "very," "really" and "clearly," rarely add anything worthwhile. Good descriptors will convey something useful.
In the example below, by using the word "explicitly," the court is pointing out that a prior case put something down in writing:
And sometimes a brilliant descriptor can pack a wallop, if used sparingly and artfully:
Sometimes descriptors can also help distinguish:
Replace Long, Boring Transitions with Fresher Ones
The best transitions are the ones you never notice. They do their guiding work, but they also contribute important information as a good citizen of the sentence. The abrupt, repetitive transitions that many lawyers use are often useless—simply telling the reader that "something" happened rather than delivering any helpful information about how concepts or thoughts connect to one another. Take this example from a state supreme court filing:
These empty transitions are verbose and do little to increase your writing's logical flow. Legal writers sometimes forget that the skill of transitioning between sentences and topics is not a matter of simply sprinkling in transition words.
Consider using (1) shorter transitions, (2) fresher transitions, and (3) transitions in different forms—like beginning your sentences with helpful context that explains how the next thought connects up with the prior one. And don't just insert transitions blindly: Sometimes a sentence doesn't need a transition because the connection is obvious. Look at some select Justice Kagan transitions (not an "additionally" or "moreover" within sight):
Here is a great example of each transition tactic at work. First, poor transitions:
VMI attracts some applicants because of its reputation as an extraordinarily challenging military school. The math program is a very challenging part of the school and key to why it is so successful. The plaintiff points out that discriminatory policies exist in the math program, which benefit only males. In 1990, the United States sued the Commonwealth of Virginia, alleging that VMI violated the Equal Protection Clause of the Fourteenth Amendment by benefiting females unfairly.
VMI attracts some applicants because of its reputation as an extraordinarily challenging military school. One of the school’s tough programs, the math one, is key to its success. But this math program discriminatorily benefits only males.” That discriminatory program spurred the United States to sue the Commonwealth of Virginia for violations of the Fourteenth Amendment.
Courts apply a two-pronged test to determine feasibility. If a defendant fails to submit adequate evidence he fails to meet the first prong of the two-pronged test.
Courts apply a two-pronged test to determine feasibility. The first prong is not met if a defendant fails to submit adequate evidence.
Here are some other examples of smooth transitions that don't rely on the plodding "additionally":
There’s no jurisdiction here. Setting that aside…
Be that as it may…
For example…for one…for another…
So there you have it: Four strategies for powering up the words in your legal writing. Give them each a try to take your writing to the next level.
Write.law co-founder Joe Regalia combines his experience as both practitioner and professor to create exciting new ways to teach legal skills. Learn more about Joe