Choose your words precisely.
Two words can be synonymous without being interchangeable or equally suited to a particular sentence.
Although most legal-writing advice focuses on concerns unique to attorneys — organizing legal arguments, capitalizing “court” correctly, and so on — writing well about the law requires, above all, writing well. To write excellent briefs, attorneys must pay attention to the building blocks of prose: sentences and the words they contain. The best briefs reflect their authors’ meticulous command of language.
The default rule: choose the simpler word.
If an idea can be communicated equally well in two ways, lawyers should choose the more concise and straightforward way unless they have a good reason to do otherwise. The best legal writers cultivate a plain-language style that is, as stylist Jacques Barzun put it, “simple and direct.”
Given the importance of clarity and readability in litigation writing (and most other professional writing contexts), this three-step formula should guide your default word selection:
Delete the word if you don’t need it. Be concise.
Use the word that most precisely conveys your meaning.
If several words are equally suitable for conveying your meaning, choose the simplest word available. (A word is relatively “simple” if it is common and short.)
A preference for straightforward and easy-to-follow prose doesn’t give writers all the answers, though. Any general guidelines such as “use plain language” should be overridden as warranted by each particular sentence and text: if the apt word is “misrepresent” rather than “lie,” write “misrepresent.”
Challenge your initial word choices when you revise.
Always challenge your first-draft word choices. The words that came to mind when you were drafting are often not those that most precisely communicate your meaning, and some words may be poor fits for the sentences in which they are used.
Attorneys’ first drafts usually need trimming and simplification — superfluous words should be deleted, unnecessary legalese or jargon should be replaced with plain-language substitutes, and so on. But sometimes the best word is not the shortest or most common word available. Confident writers with well-trained ears instinctively vary their vocabulary to write prose that is interesting and evocative.1
The plain-language philosophy should not be understood as requiring attorneys to cut themselves off from the riches of English vocabulary. Every word has its own nuances, connotations, sounds, idiomatic links to other words, and other characteristics that might justify selecting that word over another. Here are some variables that can affect a skilled writer’s choice of words:
Semantic variables (variables affecting meaning)
Meaning. Words typically have nuanced shades of meaning; many words are approximate rather than exact synonyms. Rather than thinking of synonyms as equivalents, it may help to think of them as occupying the same neighborhood of meaning. Consider the approximate synonyms rough and uneven. Variations in the height of a line may make the line uneven without making the line rough. Rough connotes a state of being unfinished or unpolished, while something can be uneven by design (as with uneven bars, a gymnastics device).
Connotations. A word’s meaning includes not only its denotations (core meanings), but also its connotations (what the word suggests or implies besides its core meanings). Words with overlapping definitions can activate different mental connections in readers. Compare commerce to intercourse.
Vagueness or level of abstraction. Some words encompass broad concepts that can take many physical forms, while others are specific. Compare, from vague to specific: vehicle, truck, 18-wheeler. Note that the word vehicle can theoretically encompass both monster trucks and go-karts. Use the most specific word available for your purpose, and beware of unwanted vagueness or ambiguity.
Associations, including synonyms, antonyms, and collocations. A word may trigger associations with synonyms, antonyms, or related words. For example, the word juicy may activate the ideas of moist and dry. Collocations — pairs or groups of words that tend to appear near each other — can also cause their component words to be linked in readers’ minds. Examples of collocations include jury and trial, unfair and competition, or breach and contract.
Usage. Special rules and idioms often make certain words more acceptable than others in particular contexts. For example, nonlawyers often misuse the term guilty (which applies to convicted defendants in criminal cases) for liable (which applies to defendants in civil cases).
Allusions. Some words suggest literary or cultural allusions. Consider the terms sin and blasphemy, which are associated with religion. They may seem out of place or suggest irony or sarcasm if the writer does not intend a religious meaning.
Sentiment. Some words sound “positive,” like warm, while others sound “negative,” like cold. Compare intervention (positive) and meddling (negative). Although some words carry an obvious positive or negative sentiment, others are subtler. Consider the approximate synonyms coarse and rugged. Coarse has a negative sentiment, as it can be used to describe a rude or unpolished person. Rugged has a positive sentiment, as it calls to mind the praiseworthy trait of resilience in the face of hardship.
Length. All else equal, longer, multisyllabic words are harder to read; they take slightly longer to visually process and decode. Traditional readability tests such as the Flesch–Kincaid Grade Level test consider average word length as a variable making some texts more difficult than others.
Frequency and difficulty. Readers recognize high-frequency words more quickly than low-frequency words, making them easier to process. Compare, in decreasing order of frequency and increasing order of difficulty: talk, conversation, discourse, colloquy.
Sound and rhythm. English has around forty-four phonemes. A word’s sound is determined by its phonemic sounds and its rhythmic pattern of accented and unaccented syllables. Word sounds can also interact with each other to create effects such as consonance and assonance (repeating consonant and vowel sounds).
Erudition or stuffiness. Compare the plain-language help to the stuffier assist, or the modern request for relief to the archaic prayer for relief.
Level of formality. Compare, in increasing order of formality: tell a whopper, fib, lie, deceive, misrepresent.
Ryan McCarl (LinkedIn) is the author of Elegant Legal Writing (U. Cal. Press 2024), a founding partner of Rushing McCarl LLP, and an adjunct professor at LMU Loyola Law School. The Elegant Legal Writing book is now available for preorder. For more writing tips, subscribe for free to the Elegant Legal Writing blog:
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Lest this point be misunderstood: attorneys, especially those who lack confidence in their writing skills, should err on the side of clarity and simplicity. Novice writers often fall into vocabulary-related traps such as using words improperly because they haven’t mastered the word’s nuances and idiomatic links; writing sentences that draw attention to themselves because they suggest a strained effort to be “literary” or “sophisticated”; and committing the blunder of inelegant variation (more commonly referred to by H.W. Fowler’s term “elegant variation”), in which the writer, rather than referring to a single concept by a single term (allowing the reader to follow the thread of reasoning), varies the term for variation’s sake.