Five Habits to Break in 2016

Still in resolution mode? Let me add five to your list.

1. “Have you seen such contract? I can’t find it anywhere.”

Even among lawyers who claim to have sworn off legalese, the addiction to “such” often endures. Fight it this year.

So not “The FTC found that such collection and use practices were proof that the company’s misrepresentations were misleading,” but “The FTC found that those collection-and-use practices were proof . . . .” And embrace “this,” “that,” and “these” as well.

2. There are many good reasons to cut “there is.”

You might remember when Donald Rumsfeld, who was speaking about the Iraq War, explained that “there are known unknowns” and “there are also unknown unknowns.” The Defense Secretary’s pontifications worked well for him, spawning a documentary, an operatic spoof, and even the title of his memoir.

But “there is” constructions don’t work nearly as well for lawyers and judges. Most of the time, they just take up space and make the reader have to wait too long to find out what the sentence is about.

So notThere are three reasons why these terms are unfair to Buyer,” but “These terms are unfair to Buyer for three reasons.”

3. It is unlikely that you need to write “it is likely that.”

English has two “dummy,” or “empty,” subjects.

The first is “there,” which I just discussed. And the second is “it.” Not “it” the pronoun, as in “Did you see The Force Awakens? I really liked it,” but “it” the empty subject, as in “It is probable that I will go see that movie soon.”

You can edit the above to “I will probably go see it soon.” The same goes for millions of lawyers’ sentences.

So not “It is likely that the Third Circuit will affirm the district court,” but “The Third Circuit is likely to affirm the district court.”

4. “Furthermore, Seller additionally wants further assurances.”

Let’s also make 2016 the year of “and” and “also.”

Many lawyers and judges reflexively report every item in a list after the first with an “Additionally,” “Moreover,” or “Furthermore.” Because those transition words are long, require a comma, and frontload your sentences, they slow down your prose.

So after “The court found that plaintiffs had not established a duty,” not “Additionally, the court found that plaintiffs had failed to prove damages,” but “The court also found that plaintiffs had failed to prove damages.”

5. “Your argument is so speciously baseless that it’s preposterous and, arguably, egregious.” 

As anyone who has judged moot-court competitions can tell you, piously overheated rhetoric requires no skill. And at all levels of the legal food chain, self-righteous attacks turn readers off as well.

Many lawyers understand this point in theory but then try to sneak in a personal exemption. “No, you don’t understand, my opponent’s arguments are truly so preposterous and specious that I am obliged to point it out!”

Resist that temptation. In fact, here’s my final proposed resolution for 2016: When you feel like writing “preposterous,” “baseless,” or “flies in the face of reason,” go ahead and do so. But then delete the language as if you had written it in an angrily drafted email. Now add some reasoned analysis. Show the reader how your opponent is wrong, even if your reader and your opponent are one and the same.

Just remember, self-serving bombast can give you a temporary rush, but leaving hot rhetoric in your final drafts would be, well, egregious. In closing, moreover, it is unlikely that there will be any further pronouncements on such matter, at least from me.

Here, by the way, are Five Habits to Make this year.