Let’s Banish Some Words

By Jane Salem, staff attorney, Nashville

When you grow up the daughter of an English teacher, alongside six siblings who all earned a degree in one form or another in English … well, you become a grammar nerd, whether or not you like it. If my older brother, the retired college English professor, saw what I just wrote, he’d get out the red pen and flag the “or not” part of “whether or not,” scolding me that the last part is redundant.

So we’re a weird family. Lots of families have treasured holiday traditions. One of ours has always been discussing the past year’s banned words.

We were raised in the Midwest, and a college one state away in Michigan pioneered the concept of compiling overused words that are often nonsensical, too. Yes, I’m talking about Lake Superior State’s Annual List of Banished Words. This year, the family discussed this list and groaned communally by videoconference. It felt just as cathartic as if we were all together.

This year marks the 45th year for Lake Superior State. It’s middle-aged, just like me, but I’m older. The latest list doesn’t disappoint, with some truly ubiquitous and annoying words and phrases. From “OK, Boomer,” to its opposite, “Those darn millennials!” “I mean” and “totes,” as in “I mean, I totes want to ban these words, right?!” “Literally” also made the list. Most of the time when people use that word, they don’t mean it literally. And the number one nominated phrase for 2020? “Quid pro quo.” Although its heyday came and went pretty early in the year.

That’s Latin. Sometimes lawyers use Latin phrases in their legal briefs. They also occasionally use fancy, multisyllabic words dating back to Common Law England.

I’m here to ask that you please reconsider that habit.

The Court of Workers’ Compensation Claims follows “The Redbook: A Manual on Legal Style.” It’s written by one of my legal writing heroes, Bryan Garner, who dedicated an entire chapter to “Stuffy Words and Legalese.” It’s perhaps my favorite chapter, along with the comma rules section (that’s an entirely different blog post).

The stuffy words chapter explains, “A lawyer should keep in mind that the purpose of communication is to communicate, and this can’t be done if the reader or listener doesn’t understand the words used.” Further, “The trend today is toward plain language and away from the stuffiness and jargon-laced prose that  characterized so much legal writing in the past.”

Yes! (Although exclamation points tend to be overused, too. Garner says they are “rarely justified.”)

We see a lot of stuffy words in briefs and other pleadings. It doesn’t affect how the judges rule on your cases. They consider the essence of your arguments, regardless of whether you use big words and Latin, and apply the facts to the law to reach their decisions. They communicate those decisions in plain language as much as possible.

This is done because: A) the judges are trendy, and Garner says plain language is a trend. B) The judges put their pants on one leg at a time (I know, clichés are bad, too). C) Approximately 40 percent of litigants in the Court are self-represented. D) All of the above.

I’ve seen the following in cases within just the past month.

  • “Premises considered…” What does that mean anyway?
  • “The Employee’s Prayers for Relief include…” That’s kind of dramatic. Just tell us what you want.
  • “In the instant case…” This reminds me of instant coffee, which is yucky. How about “this case?”

In sum, at least in our Court, feel free to loosen up with your language. Go ahead; make a resolution to use less legalese in 2021. Say what you need to say in plain English. The Court and opposing parties, especially the unrepresented, will appreciate your simplicity, and it’s very freeing to forget some of what you were taught in law school.

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