Legal Writing: Word Choice

January 8, 2013

Legal WritingEvery good lawyer knows that persuasion begins with framing the issue, and framing the issue begins with effective word choice. But many lawyers don’t realize, or occasionally forget, just how effective good word choice can be—or worse, they misunderstand what it means to make effective word choices. They think, for example, that labeling an act as “extremely egregious” will help the court to understand just how terrible the act was. But every good writer knows that good writing means showing, not telling—and adverbs and adjectives are all about telling.

In other words, adverbs and adjectives are not a sign of good persuasive writing. If you find yourself using adverbs or adjectives to get your point across, then you’re probably making bad word choices. Why? Because adverbs modify verbs, and adjectives modify nouns—and if your verbs and nouns need modifying, then they probably aren’t the best verbs and nouns you could be using.

So how effective can simple nouns and verbs be? Take the following three sentences:

  1. The man struck the girl.
  2. The father spanked the child.
  3. The guard subdued the thief.

Note how none of these sentences uses adverbs or adjectives—and none of them is ornate in its vocabulary (i.e., we don’t have to pull out a thesaurus to write these sentences). But put yourself in the shoes of the judicial reader—a decision-maker who must ultimately pick a side in the given conflict. The reader who knows she must pick a side, after reading each of these sentences, is going to be nudged one way or the other.

Most reasonable people, after reading sentence #1, will side with the girl. Why? Because we think of a “man” as older, bigger, and stronger than a “girl”—and because the verb “struck” sounds aggressive and violent. The “girl” sounds like a victim, and reasonable people tend to sympathize with victims.

Conversely, most reasonable people, after reading sentence #3, will side with the guard—because a “guard” has official status and moral authority, and a “thief” has done something wrong. The verb “subdued” also sounds like a neutral, appropriate way for a guard to handle a thief. It sounds like the guard is doing his job, and reasonable people tend to support this. (We might feel differently if the sentence said the guard “struck” the thief, because then the thief might start to look like a victim.)

Sentence #2 is different: reasonable people can (and do) disagree about whose side to be on, after reading this sentence. I’ve conducted this exercise in countless writing classes, and invariably about 99% of the class is on the girl’s side in sentence #1, about 99% is on the guard’s side in sentence #3, but the class splits down the middle over sentence #2. Why? Because we have conflicting feelings about spanking our kids—which means we’re apprehensive; we’d like to know more about the situation, in sentence #2, before we pick sides.

How does this apply to our legal writing? Well, first we have to recognize that all three of these sentences can be describing the same factual scenario. In simple terms, three different witnesses could describe the same event in these three ways. No hyperbole. No adverbs or adjectives. No thesaurus. Just simple statements of fact: this is what happened.

“X did ___ to Y.”

Yet, depending on which version of the facts is presented, the reader who must pick a side will be nudged to side either with X or with Y. In other words, by making simple changes in word choice, we can nudge the judicial reader to switch sides.

That’s how effective good word choice can be.

Now, some of you are asking, “Why include sentence #2?” Well, because sometimes we want the reader to be more apprehensive, or to refrain from judgment. Maybe we want to emphasize the complexity or ambiguity of the situation. This can be particularly effective if the decision-maker is already predisposed to side against your client, for example. It might not be possible, through mere word choice, to nudge the reader into switching sides—but maybe you can encourage the decision-maker to reconsider that predisposition, by showing that the scenario is more ambiguous than it previously seemed.

And all of this can be done subtly, with the right nouns and verbs.

But be honest and accurate. Word choice is a writing tool, and that means it’s also a lawyering tool, but as lawyers we are bound by a code of ethics and professional responsibility. You should try to use word choice effectively, to argue vigorously for your client—but don’t get carried away. The last thing you want to do is misrepresent the facts or the law, because that won’t encourage the judicial reader to do anything in your favor.