Recently, as I was scrolling through Facebook, I saw a link to a list that piqued my interest: “Lake Superior State University’s 43rd Annual List of Banished Words.”[1] It turns out that Lake Superior State University has been publishing this list every year since 1975, and over 900 words are now on the master list. The 2017 List of Banished Words (and a few phrases) includes unpack (a “misused word for analyze, consider, assess”); impactful (“a frivolous word groping for something ‘effective’ or influential’”); and drill down (“instead of expanding on a statement”). These were among hundreds of words submitted by “word-watchers” who “target pet peeves from everyday speech, as well as from the news, fields of education, technology, advertising, politics, and more.”[2]

The Lake Superior State list prompted me to wonder what words might make the cut if “word-watchers” in our field created a List of Words Banished from Legal Writing. I can easily think of a few sure bets; here I’ll list my Top Five.

5. Importantly (and its wordier equivalent, it is important to note that). Presumably, you would not be including a statement in your document if it were not important. And prefacing a statement with the word importantly doesn’t confer importance on it.

4. Arguendo. This word is perhaps the most overused Latin phrase in legal writing, followed closely by inter alia. Latin words and phrases are almost never necessary; the English equivalents work just as well (e.g. for the sake of argument, among others). Using Latin terms can even be dangerous; as Justice Antonin Scalia and Bryan Garner put it, “the judge who does not happen to know the obscure Latin phrase you have flaunted will think you a twit.”[3]

3. Baseless. This word (and others like it, such as disingenuous and specious) are often referred to as “attack terms.” They may suggest that the writer is making a moral judgment about the integrity of opposing counsel, and they annoy judges

2. Said (when used as an adjective). “As an adjective to designate a noun that has been mentioned before, this word is no more precise than this, that, these, those, and the. All it really does is make the text smell legal.”[4]

1. Clearly. As Bryan Garner explains, we should avoid “[e]xaggerators like clearly, along with its cousins (obviously, undeniably, undoubtedly, and the like). Often a statement prefaced with one of these words is conclusory, and sometimes even exceedingly dubious. As a result—though some readers don’t consciously realize it—clearly and its ilk are weasel words . . . [that] may reassure the writer but not the reader. If something is clearly or obviously true, then demonstrate that fact to the reader without resorting to conclusory use of these words.”[5]

So what about the words and phrases on Lake Superior State’s 2017 List of Banished Words? Should they be banished from our legal writing? I’ve often heard terms like unpack, impactful, and drill down in oral advocacy, but I’ve always considered them off limits in formal legal writing. But a quick Westlaw search revealed quite a few recent opinions containing these terms. Here are a few examples:

“[T]he inconsistencies between the declaration and excerpted portions of Vogel’s deposition testimony are not clear; indeed, Defendant makes no effort to unpack the alleged inconsistencies.”[6]
“Lone Eagle’s sudden choice to no longer seek a mistrial demonstrates how impactful the hearsay statement was.”[7]
“The court drills down as far as necessary ‘to unravel fully the citizenship of the entity before the court.’”[8]

Still, because most of the opinions containing these terms have been issued within the last few years, I advise proceeding with caution when it comes to using them in formal legal writing; many judges and other legal readers may still look with disfavor on such terms. My go-to legal writing style manual, The Aspen Handbook for Legal Writers, supports this cautionary approach to using trendy or made-up words. “Although English is an evolving language, do not use a word before it has evolved into an entry in a standard dictionary.”[9] And coincidentally, the first term on the Handbook’s list of words and expressions to avoid is impactful. Other entries on the list include incentivize, tasked (as in, We were tasked with finding a solution.), and effort (when used as a verb, as in, We efforted the project.).

So, fellow “word-watchers,” what words or phrases would you like to see banished from legal writing and why? I’ll collect your nominations, and at the end of this year, I’ll publish our own list: “The North Carolina Bar’s 2018 List of Banished Words.” I’m sure it will be very impactful.

Laura Graham, Director of Legal Analysis, Writing & Research, is a professor of legal writing at Wake Forest University School of Law, where she has taught for 19 years. She welcomes email from readers at [email protected].

[1] For the complete LSSU list, see https://www.lssu.edu/banished-words-list/. At this site, you can submit your own nominations for words and phrases you’d like to see included on the 2018 list.

[2] Id.

[3] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (1st ed. 2008).

[4] Wayne Scheiss, Ten legal words and phrases we can do without, Legalwriting.net (June 2, 2008), https://law.utexas.edu/faculty/wschiess/legalwriting/2008/06/ten-legal-words-and-phrases-we-can-do.html.

[5] Bryan A. Garner, Garner’s Modern American Usage: The Authority on Grammar, Usage, and Style (3d ed. 2009).

[6] Vogel v. Winchell’s Donut Houses Operating Co., LP, 252 F. Supp. 3d 977, 982 (C.D. Cal. 2017).

[7] United States v. Lone Eagle, 3:15-CR-30050-01-02-RAL, 2015 WL 8875630, at *3 (D.S.D. Dec. 14, 2015).

[8] Giroux v. Heartland Tech. Partners, LLC, No. 13-cv-00939-RBJ, 2013 WL 5477612, at *1 (D. Colo. Oct. 1, 2013).

[9] Deborah E. Bouchoux, The Aspen Handbook for Legal Writers: A Practical Reference 92 (4th ed. 2017).

March 7, 2018/by NCBARBLOG