July 23, 2019

Legal Writing Pro: Avoid These Clichés Like the Plague

1. An Apple a Day

Example: “The State prosecuted the astronaut on a more serious charge because it wanted a second bite at the apple.”

Don’t distract your reader with an imaginary fruit salad. Instead, explain why your opponent shouldn’t get what it wants: “The State added a new charge only because the court rejected its first bail request.”

2. Giant Ball of Twine

Example: “Her state tort law claims were inextricably intertwined with Medicare regulations.”

Popular variations: inextricably linked and inextricably connected.

Don’t get stuck in the tangled web. Instead, emphasize why the connection matters: “Unless the provider violated Medicare regulations, Plaintiff’s state tort claims must fail.”

3. Your Eminence

Example: “Dr. Smith’s resume demonstrates that she is eminently qualified to opine on damages.”

Have you ever heard of an expert who is qualified, but not eminently so? I didn’t think so. The same goes for such expressions as eminently reasonable and eminently clear. Just stick to the facts: “Mary Smith is qualified to testify because she has a doctorate in economics and has testified in 24 other federal antitrust cases.”

4. Slip Sliding Away

Example: “If the Court allows large punitive damages in this case, it will head down a slippery slope.”

When I was in law school, my contracts professor challenged us to get through our entire course without once using the phrase slippery slope. We held out for just two days before someone slipped. In its place, just explain the danger of not doing what you want: “If the Court allows large punitive damages here, Defendants will be forced to pay many times for the same claim.”

5. Bald Faith

Example: “Plaintiff’s conclusory allegations and bald assertions cannot withstand scrutiny.”

I’m convinced that some of us lawyers develop keystrokes for these couplets. Is any allegation not conclusory? Is any assertion not bald? Judges tell me that these predictable pairs are like fingernails on the chalkboard. Better to focus on what makes the assertions so bald: “Although Jones claims promissory estoppel, he cites no facts to suggest that he relied on Smith’s alleged promise.”

I’ll stop now so I don’t go down a slippery slope of my own. But if I’ve opened Pandora’s box here and you think clichés are the Achilles’ heel of legal writing, please send me more of these tempting truisms—either the ones you love to write or the ones you hate to read.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

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