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Legal Writing

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Ten Ways to Make a Judge Chuckle

Remove These Phrases to Strengthen Your Brief

Many lawyers “advocate” with one of two patterns using “cute” words. I’ve tried to come up with a better modifier than “cute,” but I can’t. The first pattern is the one we looked at last week: The cute adverb at the beginning of a sentence: “curiously,” “incredibly,” “amazingly.” I am forever curious and incredibly amazed that even one lawyer in all 1.4 million of us thinks that these words are advocacy and that using them to open a sentence is smart.

Ditto the second pattern: a short phrase conveying that the writer is dismayed, nay shocked, at how close the other side’s argument sidles up to sheer tomfoolery:

Plaintiff’s argument that the costs were not “paid” approaches the frivolous.

I’ve often wondered at the psychology behind a lawyer writing “approaches the frivolous.” If the lawyer believed her own sentence, she wouldn’t pull the punch at the end by writing “approaches”; she would just write “frivolous,” which is bad enough, because it’s no more than the lawyer’s opinion. But accusing the other side’s argument of “approaching” frivolity makes no sense. These phrases are neither colorful nor clever. Here are two more examples from other briefs:

Attempting to assert violations of due process verges on the ludicrous.

Defendant’s definition is so nonsensical as to border on the laughable.

Not “ludicrous” or “laughable,” mind you, but only “verging” or “bordering” the ludicrous or the laughable. Judges have told me that when they see one of these phrases, it tells them this about the lawyer’s case: She doesn’t have one.

 

But for those of you who just cannot help yourselves from using this other “cute” pattern, I offer the following ten examples (which should be enough to fill any brief), so you don’t have to think so hard to come up with your own; all you have to do is fill in the blanks:
___________________’s ___________________

. . . lurks at the edge of incredulity
. . . .teeters on the precipice of disbelief
. . . . wallows in the proximity of absurdity
. . . . dances a jig on the grave of farce
. . . . flounders in a sea of nonsense
. . . . dangles dangerously above imbecility
. . . . twitters near twaddle
. . . . flutters close to the flame of confusion
. . . . smells suspiciously like a pile of pusillanimity
. . . . must be some kind of practical joke.
 

Wow, this is fun! I now have a greater appreciation for those who write this stuff. These are all mine, but I will extend the copyright to any lawyer desperate enough to want to use them. It’s the least I can do.

 

(Any similarity between the fictitious examples above and those examples found in real briefs is purely coincidental. No animals were harmed in the writing of this Tip.)

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About Gary Kinder

Gary Kinder

WordRake founder Gary Kinder has taught over 1,000 writing programs for AMLAW 100 firms, Fortune 500 companies, and government agencies. He’s also a New York Times bestselling author. As a writing expert and coach, Gary was inspired to create WordRake when he noticed a pattern in writing errors that he thought he could address with technology.

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