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The article below has been republished in full courtesy of Law360, written by Jenna Ebersole
Every dog has its day, but not every cliche has a place in your next filing. Legal writing can be so cliche-ridden that we decided to go the extra mile and bring you another installment of expressions that are as clear as mud. Although rules are meant to be broken, experts say pausing to swap out an overused phrase may take just two shakes of a lamb’s tail and significantly improve your prose. “Writers may be tempted to rely on cliches found in their legal research,” said Jennifer Murphy Romig, an instructor at Emory University School of Law. “As a new attorney handling a motion, I proudly quoted a binding opinion that the matter should be decided on a ‘case-by-case basis.’ The judge shot back, ‘Every case is decided on a case-by-case basis! Tell me something helpful for this particular case.'” Here are five legal cliches that are just the tip of the iceberg. “Like the Fox Watching the Henhouse” Although foxes and henhouses may accurately illustrate a situation, familiarity breeds contempt when attorneys use trite phrases. Instead, experts say, draw an original picture. George Orwell hit the nail on the head when he criticized the use of simile, metaphor and other figures of speech often seen in writing, said Annette Torres, a professor at the University of Miami School of Law. Instead, Torres advised, lawyers should heed examples like Chief Justice John Roberts, who in Alaska v. EPA wrote that identifying the best technology for controlling air pollution would be the same as asking different people to choose the “best” car. Roberts’ analogy invited his colleagues and others to apply personal experience — choosing a car — to understanding a state's competing priorities when choosing clean-air technology, Torres said. “A carefully crafted analogy will help demystify a complex legal argument,” she said. But other writers instead fall into the habit of using phrases such as opening a “can of worms” or “the floodgates.” “Such lazy writing suggests a lack of interest or intellect, or both, that will likely cause the reader to question the writer’s credibility,” Torres said. “If you find yourself using a tired phrase as a placeholder when drafting a brief or memorandum of law, be sure to edit or delete it before declaring your document final. Reframe the thought. Strive for originality.” “Second Bite at the Apple” Attorneys can fall further down the slippery slope of cliche when reaching for a metaphor with a strained connection to the facts or argument being presented. Torres said if an opponent is seeking a rehearing, leave to amend or another second chance, the “second bite at the apple” metaphor is problematic. “The court will undoubtedly appreciate a compelling argument based on precedent, not a hackneyed phrase that bears no meaningful relationship to governing law,” she said. Some cliches — such as opening a “Pandora’s box,” thinking “outside the box” and leaving “no stone unturned" — are just too tired, other attorneys and professors said. At some point, even if a phrase is meaningfully connected to the circumstances, it may not land with its audience. Elizabeth G. Yeargin, a partner in the Ohio-based firm Brouse McDowell LPA, said some attorneys may just be trying too hard at sounding colloquial. “[They’re] trying to connect with an audience and sound like an average Joe, when really it just kind of comes across as lame,” she said. “This Honorable Court” While judges continue to expect a certain level of deference, some writers may take the formality a little too far. Sprinkling a document with “honorable court” and other praises may set the reader’s teeth on edge. “Flattery gets you nowhere,” said Jack Metzler, an attorney who published the U.S. Supreme Court’s internal style guide. Still, Metzler, who works for the Federal Trade Commission but said he wasn’t speaking for the FTC, emphasized that the issues that plague legal writing are also bigger. “I would love it if all lawyers get past that remedial part and start getting to the part of their writing where they can worry about being truly persuasive,” he said. Yeargin said she doesn’t necessarily see cliches as a common problem in legal writing and that flattery may actually be a good thing. The key for using formal phrases is to know your audience. “I think it depends on the judge or court you’re in front of because some of them are very particular: 'That’s the way you address me,'” she said. “You kind of have to play that game of figuring out who you’re talking to.” “The Instant Case” At times, attorneys may be too rushed to keep a critical eye and instead be tempted to use boilerplate that has survived through the decades. Using “instant” is one such example, Metzler said. “Just add justice!” he said. Stock phrases like “by and through the undersigned counsel” describe something obvious and could just as easily be cut, Torres said. “Needless verbiage undermines the lawyer’s opportunity to provide a clear and interesting introduction,” she said. Even an attorney short on time should work to become a “rigorous self-editor” and occasionally take a few minutes to read the writing of someone who is highly respected, Torres said. “There’s always something you can learn reading a good piece of legal writing,” she said. “Further Your Affiant Sayeth Naught” — Or “Not” Legal writing can lend itself to fanciful phrasing even when it might be antiquated and unnecessary. In the case of “further your affiant,” attorneys often supply different endings: “naught” and “not.” But regardless of the final word, said Metzler, “the lack of anything further sayeth this by itself.” Joseph Kimble, a professor emeritus at Western Michigan University's Thomas M. Cooley Law School, said the critical issue is to avoid the most tired cliches. Some lesser-used expressions might be harmless, but others are ineffective or may overstate the issue. And cliches are just a small problem when it comes to good legal writing, he added. “Shorten the paper, make it clearer, make better connections, make it more coherent, cut the legalese, cut the ‘pursuant to’ and ‘prior to’ and all the ‘-here,’ ‘-there’ and ‘-where’ words,” he said. “And none of the old formalisms.” In some cases, though, it might be best not to throw out a signature phrase with the bathwater. Yeargin said one colleague characteristically sets up background information, though not in his formal writing, with: “First there were the dinosaurs.” “And you know it’s him,” she said.
This article has been republished in full and is courtesy of Law360. For the latest breaking news and analysis on energy industry legal news, visit Law360 today.