June 02, 2021 Feature

Diction: How to Choose the Right Word (and Why)

Hon. Robert E. Bacharach
wosephjeber/iStock/Getty Images Plus

wosephjeber/iStock/Getty Images Plus

Improve the clarity and memorability of your legal writing by using simple language, avoiding redundancies and legalese, and ensuring proper word usage.

Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word (ABA 2020) is a unique book on legal writing. It draws on lessons from the field of psycholinguistics, which involves the study of how the human brain processes and stores language. For over a century, psycholinguists have studied how quickly or slowly we read particular types of passages, how the human brain filters written language, and how the brain stores certain information for recall. But the book is not an academic foray into science. The book uses these scientific principles to show how attorneys, judges, and law students can improve the clarity and memorability of their legal writing. The book illustrates these lessons with examples from accomplished advocates, judges, and orators, such as FDR, Churchill, and Martin Luther King Jr.

In this excerpt, Judge Bacharach addresses diction. Mark Twain once quipped: “The difference between the almost right word and the right word is really a large matter—’tis the difference between the lightning-bug and the lightning.”1 Given Twain’s admonition on the important task of selecting the right words, Judge Bacharach provides guidance in this excerpt from Legal Writing.

Using Simple Language

Longer words are generally harder to remember than shorter ones.2 So to facilitate understanding, use simple, easily understood language. Stephen King, the famed novelist, cautioned against the needless use of big words:

One of the really bad things you can do to your writing is to dress up the vocabulary, looking for long words because you’re maybe a little bit ashamed of your short ones. This is like dressing up a household pet in evening clothes. The pet is embarrassed and the person who committed this act of premeditated cuteness should be even more embarrassed.3

For example, many writers unnecessarily use words in the first column when an easily understood synonym in the second column would fit equally well:

Avoid | Prefer

Accede to | Allow

Accentuate | Stress

Acquiesce | Agree

Approximately | About

Actuality | Reality

Beneficial | Helpful

Component | Part

Conceal | Hide

Conjunction | Together

Consume | Eat or Drink

Demonstrate | Show

Disburse | Pay

Erroneous | Wrong

Evince | Prove

Exclusively | Only

Furnish | Give

Pursuant to | Under

Reimburse | Repay

Needless use of big words leads to frustration and negative perception of the text and the author.4

Elegant Variation

Many traditionalists vary their language to avoid repetition. For example, if traditionalists use the word “factor” in one sentence, they would use a synonym (like “consideration”) in the next sentence.

But what happens when you read a statute? If the legislature used two synonyms, wouldn’t you suspect some subtle difference in what the legislature is saying?5 Many readers encounter the same quandary when reading briefs or opinions that use different terms for the same thing. To avoid that quandary, use the same word when referring to the same thing. Doing otherwise has been cast pejoratively as “elegant variation.”6

Avoiding Redundancies

When talking, we often use word combinations that are redundant. For example, we might tell someone that “it’s just my personal opinion.” If we omit the word “personal,” nothing would be lost. If we express an opinion, of course it’s our personal opinion, so the word “personal” is redundant. You should ordinarily avoid redundancies to create leaner, stronger sentences.

Common redundancies are:

  • (a period of) 12 weeks
  • (and) thus
  • (any and) all
  • (close) scrutiny
  • (covenant and) agree
  • due (and payable)
  • each (and every)
  • (null and) void
  • part (and parcel)
  • (future) plans
  • off (of)
  • merge (together)
  • never (before)
  • (past) experience
  • (actual) fact
  • (place of) abode
  • emergency (situation)
  • (final and) conclusive
  • advance (forward)
  • (at the time) when
  • (end) result
  • (general) public
  • return (back)
  • the reason (why)
  • assemble (together)
  • (completely) surround
  • depreciate/appreciate (in value)

Replacing a Phrase with a Word

To excise unnecessary words, you can sometimes replace a phrase with a word:

  • the reason for = why
  • as of the time that = when
  • as to = about, on, or with
  • despite the fact = though
  • make an appearance = appear
  • in the event that = if
  • on a daily basis = daily
  • at such time as = when
  • be abusive of = abuse
  • be in attendance = attend
  • effectuate service = serve
  • initiate a lawsuit against = sue
  • put on a performance = perform
  • the question as to whether = whether
  • in a belligerent manner = belligerently
  • prior to = before
  • it is possible that = may

Avoiding Legalese and Latin

Centuries of legal development generated terms sounding legal but lacking any real meaning. We call these terms “legalese.” If legal writing is intended to communicate or persuade, legalese serves only to impede communication or persuasion.7 Common examples are:

  • above captioned
  • aforementioned
  • aforesaid
  • comes now
  • forthwith
  • hereafter
  • hereby
  • herein
  • hereinafter
  • hereof
  • hereto
  • hereunder
  • hitherto
  • inasmuch as
  • in reference to
  • thereby
  • therein
  • thereto
  • to wit
  • whereas
  • whereby
  • wherein
  • whereof

Like legalese, Latin terms generally impede communication. Legal briefs are intended to persuade; judicial opinions are intended to explain. Rarely is legal writing designed to impress. So why use Latin when a simple English word is more readily understood? As a result, you should almost always avoid these Latin terms, using the substitute marked in parentheses:

  • arguendo (for the sake of argument)
  • infra (below)
  • inter alia (among other things)
  • sub judice (under judicial consideration)
  • supra (above)
  • vel non (the existence of an issue for determination)
  • viz (namely)

Clichés and Vogue Words and Phrases

Some phrases are repeated so often that they lose whatever meaning they once had. Some examples:

  • bottom line
  • brave as a lion
  • diamond in the rough
  • honing a skill
  • in the nick of time
  • misses the mark
  • old hat
  • time will tell

Avoid these overworn phrases.

Also avoid words and phrases reflecting current fads rather than time-tested definitions. Sometimes these are pejoratively called “vogue words and phrases.” Examples are:

  • interface
  • cost-effective
  • downside
  • downsize
  • dynamic
  • proactive

Referring to Parties and Other Entities

Acronyms. Acronyms are commonplace and some are universally recognized. For example, we can assume that readers know what we mean by FBI, IRS, or US. But FEHB? Not so much.

Perhaps to avoid the tedium of retyping long names, attorneys and judges often use the first letter of each word in a given name, “defining” that word in a glossary or in a parenthetical accompanying the first use of the name. This practice forces the reader to skip back and forth from the “definition” to wherever the reader is in the document. Don’t make readers go backward in a document. When they go backward, you have unnecessarily hindered the progression of your argument. So avoid unfamiliar acronyms.8

Does this mean that you always need to repeat long names? Not at all. If you are referring to the Defense Base Closure and Realignment Commission and there are no other commissions discussed in your document, use the full name the first time and then call it the Commission. No one will be confused.

Parties’ names rather than their litigation status. Many attorneys refer to parties by their role in the litigation: “plaintiff,” “defendant,” “petitioner,” “respondent,” “appellant,” or “appellee.” Sometimes this practice is useful. For example, if there are many parties joined as appellants, referring to all of them by name may tire both you and the reader. But wherever feasible, refer to parties by their names rather than their litigation roles. Names are easier for the reader to remember and less likely to create confusion.9 Some advocates use names for their clients but not for their adversaries, hoping to avoid personalizing them in the judge’s eyes. Resist this practice. The judge wants only to remember who the parties are. Helping the judge remember the parties does not personalize them, but it does help the judge understand what you are trying to communicate. Isn’t that what you want?

Usage

Effective communication requires close attention to the proper use of words. Some words are often misused, distracting the reader for at least a moment.

A or an. Use “a” before a word beginning with a consonant sound (including “y” and “w” sounds); use “an” before a word beginning with a vowel sound. For example, you would write “a European” because it starts with a “y” sound. But you would write “an MSW degree” because “MSW” starts with an “em” sound.

Ability or capacity. “Ability” is qualitative; “capacity” is quantitative. The fellow standing at the elevator has great intellectual ability, but the elevator has the capacity to hold only seven people.

Accrue. This is always an intransitive verb (meaning that the verb does not require an object to complete its meaning). The definition of “accrue” is to accumulate or to come to someone as a benefit. With this definition, the verb does not take an object. So you could say: “Wealth and power will accrue to the middle class.” But you could not say: “The middle class will accrue wealth and power.” In this sentence, “wealth and power” would serve as the object of the verb “accrue.” This sentence is incorrect because “accrue” never takes an object.

Adequate or sufficient. “Adequate” is qualitative; “sufficient” is quantitative. You should thus use “adequate” when referring to an item’s quality; use “sufficient” when referring to something’s quantity or size.

Affect and effect. To affect means to influence; to effect means to bring something about. You may affect (influence) the course of history or effect (bring about) a revolution. But you could not effect the course of history.

Afterward or afterwards. Both spellings are correct, but the preferred spelling in the United States is without the “s.” (In the United Kingdom, the “s” is usually included.)

Allege or contend. Use “allege” when saying something before it has been proven. Use “contend” when stating a position.

Alot or a lot. “Alot” is not a word. It should be two words: “a lot.”

Among or between. Use “between” when referring to a specific relationship involving two things. Use “among” when referring to a looser relationship within a group. For example, say: “He stood between home plate and the pitching mound.” And use “among” in this sentence: “Among the seven of us, we saw four different movies.”

Anticipate or expect. To anticipate something is to prepare for the possibility that it might occur. To expect something is to think that it will take place.

Apt or likely. “Apt” is used for things in general. For example, you could say “Summers are apt to be hot.” Use “likely” when referring to specific things. An example: “The mailman is likely to come today.”

As or because. Use “as” to compare, such as “The subsidiary filled orders as quickly as the parent company had asked.” “Because” signals causation: “The subsidiary filled the orders because the parent company had asked.”

As such. This is a prenominal phrase, meaning it is a word or part of speech preceding a noun. The word “such” requires an antecedent. So do not use “as such” as a synonym for “therefore.”

Assure, ensure, or insure. If you assure someone, you promise something or make a statement with confidence. If you ensure something, you express certainty about it. If you insure something, you obtain coverage from an insurance company.

Attain or obtain. To attain something means to achieve it. To obtain means to acquire something.

Beside or besides. “Beside” means “next to.” “Besides” means “except” or “also.” For example, you could say: “The borrower would not take anything besides money for his trouble.”

Blatant or flagrant. To be blatant is to be conspicuous. An act is flagrant if it is conspicuous and performed with arrogant disdain.

Compare (to/with). If you compare something to another, you are referring to their similarities. Comparing something with another is to identify differences.

Center around. The center is a discrete point, so never say that something centers around a thing. But something can center on a thing. If something goes around something, say that it revolves around (not centers around) the thing.

Comprise. The word “comprise” means “include” or “contain.” As a result, nothing can be comprised of something. To determine whether you are using “comprise” properly, mentally substitute the word “include” or “contain.” For example, consider this sentence, which properly uses the word “comprises”: “The Wiretap Act’s definition of ‘interception’ comprises packet-switch technology as well as circuit-switch technology.”10 We know that this usage is proper because we can mentally substitute “includes” or “contains” for the word “comprises.” It would have been incorrect to say instead: “The Wiretap Act’s definition of ‘interception’ is comprised of packet-switch technology as well as circuit-switch technology.”

Consider (as). If followed by a noun, say “consider” rather than “consider as.” For example, the “as” is incorrect in this sentence: “The willingness to take a lie-detector test is considered as strong evidence of innocence.” But you can use “as” when it is followed by a participial phrase, such as “The horse’s gallop would be considered as trotting in most other mares.”

Continual or continuous. Something is continual if it recurs often; something is continuous if it never stops.

Different. When you are comparing like things, say “different from,” not “different than.” For instance: “California is different from Montana.” When comparing things that are not alike, use “than”: “California lawyers are different than they used to be.”

Dual or duel. “Dual” is an adjective meaning “two.” “Duel” refers to two-way combat.

Due to. “Due to” means “attributable to” and is used solely to modify a noun. It is correct to say: “Due to complications occurring while the surgery was underway, Levin developed corneal edema . . . .”11

Farther or further. Use “farther” when referring to actual distance. An example: “It is farther to Dallas than to San Antonio.” Use “further” when discussing something figuratively, like “The court declined to further extend the doctrine.”

Feel badly. This phrase is incorrect. Say “feel bad” instead.

Findings or conclusions. A finding refers to a determination of fact; a conclusion refers to a determination of law.

Fewer or less. Use “fewer” when referring to countable items; use “less” when referring to volume or an amount.

Finalize. Using this as a synonym for “finish” is jargon.

Forgo or forego. To forgo something is to waive it. To forego something is to go before it. For example, you could say: “In light of the foregoing, we should prevail.” Or you could say: “She decided to forgo an objection.”

Historic or historical. Something is historic if it transformed history; “historical” refers to something “of history,” such as a historical society.

Home or hone. When nearing a location, you home in on it, not hone in. To hone something is to sharpen it.

Imply or infer. To imply something is to implicitly express something; a reader might infer something by drawing a conclusion from the statement.

Irrespective or irregardless. “Irregardless” is not a word and contains a double negative (the prefix “ir-” and the suffix “-less”). The correct term is “irrespective.”

Lay or lie. “Lay” means to put something somewhere. “Lie” means to recline. “Lay” requires an object, as in “now I lay me down to sleep.”

Like or as. Use “like” to precede a noun that is not followed by a verb: “She runs like the wind” (noun, no verb). Use “as” to precede a noun that is followed by a verb, such as “She operates her business as a veteran (noun) would operate (verb) it.”

Loathe or loath. If you detest something, you loathe it. If you are reluctant to do something, you are loath to do it.

Phase. Use “phase” when referring to a stage in transitioning or developing. Don’t use “phase” as a synonym for “topic.”

Principal or principle. “Principle” is a noun referring to a rule. A principal is a person represented by another, a head official, or a capital sum. The word “principal” can also serve as an adjective meaning “main.”

Reticent or reluctant. The word “reticent” means “reluctant to speak.” The word “reluctant” is broader, meaning “unwilling to act.”

That or which. Use “that” for a restrictive phrase and “which” for a nonrestrictive phrase. A restrictive phrase limits the meaning of a noun; a nonrestrictive clause does not. Say “He brought a knife, which was identified as contraband.” Or you can say: “He brought a knife that his cellmate had furnished.”

Toward or towards. Both spellings are correct, but the preferred spelling in the United States is without the “s.”

Torturous or tortuous. Something is torturous if it causes torture; something is tortuous if it entails twists and turns.

Verbal or oral. Something is verbal if it consists of words; something is oral if it is said aloud.

Where. The word “where” refers to location and should not be used in place of “when,” “if,” or “that.”

Who or that. When referring to a person, use “who.” Reserve “that” for inanimate objects.

Who or whom. The word “who” is correct when used as a subject; use the word “whom” as an object. An example: “Who is knocking at the door?” The word “who” is correct because it is the subject performing the action of the sentence. Another example: “I take the pencil to the teacher, for whom I have the greatest respect.” The word “whom” is correct because it is the object of the preposition “for.”

Notes

1. Letter from Mark Twain to George Bainton (Oct. 15, 1888), in George Bainton, The Art of Authorship: Literary Reminiscences, Methods of Work, and Advice to Young Beginners 87–88 (1890).

2. Yellowlees Douglas, The Reader’s Brain: How Neuroscience Can Make You a Better Writer 140 (2015).

3. Stephen King, On Writing: A Memoir of the Craft 117 (2010).

4. See Lawrence M. Solan, Four Reasons to Teach Psychology to Legal Writing Students, 22 J.L. & Pol’y 7, 15–19 (2014) (discussing studies showing that a reduction in “processing fluency” leads to negative reaction to the text and the author).

5. See, e.g., United States v. Maria, 186 F.3d 65, 71 (2d Cir. 1999) (“As a general matter, the use of different words within the same statutory context strongly suggests that different meanings were intended.”).

6. Richard C. Wydick, Plain English for Lawyers 69–70 (5th ed. 2005); Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer 102 (3d ed. 2009).

7. See Robert W. Benson & Joan B. Kessler, Legalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing, 20 Loy. L.A. L. Rev. 301, 301 (1987) (conducting an empirical study and concluding that appellate judges and their research attorneys had “rated the passages in legalese to be substantively weaker and less persuasive than the plain English versions”); accord Sean Flammer, An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain Language, 16 J. Legal Writing Inst. 183, 198–204 (2010).

8. See Bryan A. Garner, Garner’s Modern American Usage 3 (2003) (“Abbreviations are often conveniences for writers but inconveniences for readers.”); see also U.S. Court of Appeals for the D.C. Circuit, Handbook of Practice and Internal Procedures 43 (as amended through Dec. 1, 2018) (“[P]arties are strongly urged to limit the use of acronyms.”).

9. See David M. Howcroft & Vera Demberg, Psycholinguistic Models of Sentence Processing Improve Sentence Readability Ranking, in 1 Ass’n for Computational Linguistics, Proceedings of the 15th Conference of the European Chapter of the Association for Computational Linguistics 958, 961 (Apr. 3–7, 2017) (stating that in a 1972 study by Keenan and Kintsch, “propositions involving a proper name were generally recalled better than similar propositions involving, e.g., a common noun”).

10. United States v. Szymuszkiewicz, 622 F.3d 701, 705 (7th Cir. 2010) (Easterbrook, C.J.) (emphasis added).

11. Levin v. United States, 568 U.S. 503, 510 (2013) (Ginsburg, J.) (emphasis added).

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Hon. Robert E. Bacharach is a federal court judge for the United States Court of Appeals for the Tenth Circuit, where he has served since February 2013.