Small Firms, Big Lawyers: 20 Ways to Write Like a Tool
Being a lawyer is like being a member of an elite club, but sounding like a lawyer is sometimes the same as sounding like a "tool." Small firm columnist Jay Shepherd has come up with 20 lawyerisms that do nothing to advance the message lawyers are trying to send, and do, in fact, make lawyers sound like complete tools in their writing.
Ever see Fight Club? Yeah, me neither. The 1999 Brad Pitt movie was more of a cult film than a commercial success, although it did make back its costs. But the movie did have a line that became something of a meme, and was once recognized by Premiere magazine as the 27th greatest line in movie history (which seems dubious, but whatever):
The first rule of Fight Club is you do not talk about Fight Club.
If only lawyers had the same rule.
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You see, being a lawyer is like being a member of an elite club. OK, maybe not as elite as we like to think; there are more than a million members in the US. But elite enough. And the problem is, too many of us are dying to show off to others that we’re members of law club. And one of the ways we do it is by trying to sound like a lawyer when we speak, and especially when we write. This is a problem because sounding like a lawyer is the same as sounding like a tool.
I’ve come up with 20 lawyerisms that do nothing to advance the message you’re trying to send, but instead show that you’re a member of law club. And that you sound like a tool.
How many of the 20 do you use?
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1. Pursuant to. This is the granddaddy of them all. No real person would ever say “pursuant to” in conversation, unless what they really meant was “I’m a lawyer; punch me in the head.” Replace this legalese monstrosity with English words, like “under,” or “following,” or even “as required by.”
2. Numerals in parentheses. Lawyers love to write train wrecks like this: “Mr. Smith has two (2) children from his first marriage.” Really? You think the reader won’t know what you mean by the word “two”? You think adding the numeral helps? You’re wrong. Lawyers have no idea why they practice this fetish. The only reason is that they’ve seen other lawyers do it. It serves zero (0) purpose. Cut it out.
3. Doublets and triplets. It’s not enough for lawyers to say something once. They bizarrely need to repeat themselves. That’s why they send “cease-and-desist letters,” when “cease” and “desist” mean the same thing. They make “last-and-final offers,” because maybe the reader doesn’t really understand what “last” means. Other examples: due and payable; agree and covenant; null and void; give, devise, and bequeath. This is a practice you should cease. And desist. And stop. And so on.
4. Prior to. This is just a fancy way of saying a word that you learned in kindergarten: “before.” What’s wrong with “before”? Do you think that your fanciness impresses people? If so, why don’t you do it all the time? Ask the gate attendant at the airport what time the “jet-powered flying machine” leaves. She’ll probably signal TSA to give you a regroping.
5. Due to. Lawyers love to use this phrase, but they use it incorrectly almost all the time. “Due to” is an adjectival phrase, not an adverbial phrase. It modifies a noun, not a verb or verb phrase. Easy way to remember this: Make sure it’s preceded by the verb “to be.” Incorrect: “The defendant was arrested due to his punching the lawyer in the head.” Use “because of” instead. Correct: “The defendant’s rage was due to his lawyer’s toolishness.”
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6. In the event that. Seriously? WTF is wrong with the word “if”? Are you getting paid by the word?
7. Clearly. Judges hate this word more than any other. Either something is clear or it’s not. Telling me it’s clear doesn’t make it so. It’s like telling someone that the story you’re about to tell is funny. I’ll decide that, thanks. I don’t need your help. When judges see the word “clearly,” they know that what follows will be anything but clear.
8. However (at the start of a sentence). For some reason, lawyers seem to think that you can’t start a sentence with a conjunction. But they’re wrong. And I can prove it. Look in any respectable usage guide and you will find no such grammar rule. Good writers very often start sentences with conjunctions. And they should. Using “however” at the start of a sentence is just a ponderous way to avoid saying “but.”
9. Very unique. “Unique” means “one of a kind.” Something can’t be “very unique,” or “really unique,” or “quite unique”; nor can one thing be “more unique” than another. If it’s unique, then say just that.
10. Shall. Another favorite of lawyers, maybe because they like bossing people around. But “shall” is a terrible word, because people can’t agree on what it means. Sometimes it means “must”; sometimes it means “will”; sometimes it means “agrees to”; and sometimes it means “may.” Because of this wishy-washiness, many lawyers use the word in different ways within the same agreement. In fact, there have been more than 1,300 reported cases discussing the definition of “shall.” It’s not worth the trouble. Use “must,” “will,” or “agrees to” where appropriate, and ban “shall” from your vocabulary.
11. Disinterested. The word even sounds lawyerly, since lawyers are often talking about interests and interested parties. But most lawyers use it incorrectly. “Disinterested” means “impartial,” not “not interested.” If a baseball game bores you, it means you are “uninterested” in its outcome. You’re only “disinterested” if you mean that you don’t have any money riding on it.
12. Comprised of. Those two words never belong next to each other. You mean “composed of.” “Comprise” means “consist of.” The group comprises members, or the group is composed of the members. If you’re saying “comprised of,” you’re doing it wrong. (Update: Several patent-lawyer readers have written to me about this point; some huffishly. “Comprise” is a patent-law term of art, and I probably should have mentioned that. In patent law (and nowhere else), it means something different from “consist of.” But “is comprised of” is always wrong and always bad English, even among patent attorneys.)
13. And/or. This is not English. This is what lawyers do to talk about law club. No one reading a sign that says “no talking or running in the halls” is going to think that talking is prohibited, running is prohibited, but if you talk while running, that’s cool. The “and” is contained in the “or.”
14. Using virgules. What’s a virgule? It’s a slash (/). Don’t use it. Lawyers like to sprinkle it into their prose to mean “or” (see number 13) or “and” (“attorneys/staff”) or “to” (“Boston/Washington shuttle”). (That last example merits an en dash.) And if you think that “he/she” is an appropriate way to avoid sexist language (which is an important goal), then you should add the neuter, too: “s/he/it” — because that’s what your writing will sound like.
15. Said (as an adjective). Said fetish is one of the worst examples of membership in law club. No human talks like that. Use “this,” “that,” or “the” instead.
16. Same (as a pronoun). It’s not a pronoun. It’s a silly thing that lawyers do. (“The parties agree to same.”) Try “it” instead.
17. Hereinafters and parentheticals. Many lawyers think their readers are idiots. They imagine that the judge reading their brief will forget the name of the plaintiff, which is contained in the caption, and then rewritten inches below: “The plaintiff, John Q. Smith (hereinafter referred to as ‘Mr. Smith’), brings this action ….” And yet those same readers somehow manage to get through the sports page without these parentheticals. Only a lawyer would write this: “Red Sox (‘Red Sox’ or ‘Sox’) pitcher Josh Beckett (hereinafter ‘Mr. Beckett’) gave up five (5) runs against the Phillies (‘Phillies’) ….” The only exception is when there might be confusion, such as when there are two Smiths in the story.
18. Overcapitalization. Some lawyers think that terms need to be capitalized up the wazoo. Otherwise, they fear, the client might think that “the agreement” could be some other agreement, instead of the “Agreement” that she’s reading right now. Really? If I asked you what you thought of this Post, would that capital P make it clearer for you? This isn’t German, people. Use capitals sparingly, in proper names and at the start of sentences.
19. ALL CAPS. Don’t do this. Some lawyers think it’s acceptable to use all caps as a form of emphasis. They are unreadable, and they show the reader that you don’t know what you’re doing.
20. Above-mentioned, aforementioned. Again, quit treating your reader like he’s an idiot. He’s going to remember that I mentioned Josh Beckett a few paragraphs ago without my saying “the above-mentioned Beckett.” And “above-referenced” is even worse, because “reference” is really a noun, not a verb.
There are other examples, but you get the idea. If you don’t want to sound like a tool, don’t do these things. It’s like talking about law club.
In fact, it’s a good idea to develop a firm style guide (something you really can’t do at a big firm). If you want an example, email me and I’ll send you the guide we used at Shepherd Law Group. In your email, feel free to tell me how many of the above-referenced twenty (20) lawyerisms you’ve used. I promise I won’t call you (“you”) a tool.
Jay runs Prefix, LLC, a firm that helps lawyers learn how to value and price legal services. Jay Shepherd also spent 13 years running the Boston management-side employment-law boutique Shepherd Law Group. He writes the ABA Blawg 100 honoree The Client Revolution, which focuses on reinventing the business of law, and Gruntled Employees, a workplace blog. Follow Jay on Twitter at @jayshep, or email him at js@shepherdlawgroup.com.
