October 3, 2022

Volume XII, Number 276


October 03, 2022

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Simply Impress Your Friends: Professional Ettiquete (Video)

I know this will come as quite a shock to many, but my tendency toward bookishness goes way back.

Yeah, who knew?

When I was little I used to love one of the features in Reader's Digest called "It Pays To Increase Your Word Power."

I used to sit with a pencil and paper and try to learn the fifty cent words, then use them in every day conversation.

But now that I'm grown, I come to find out that it does not pay to increase your word power. In fact it pays to do quite the opposite: keep it simple. Very simple.

After the jump some legit research and another look at what makes good writing good in the Supreme Court of Texas.

When are fancy words not so good? Almost always as it turns out. What could be more simple or more powerful than, "Mr. Gorbachev, tear down this wall." Four words, each one syllable. You know which wall. You know what ought to be done. As it turns out, the command and the tide of history were irresistible.

What if, instead, President Reagan had said something like:

Mikhail Sergeyevich Gorbachev, unobstruct this portcullis. Even further, dismantle this edifice.

He might have, if he had legal training. Thankfully, he did not. Fancy is not so good.

As it turns out, if you want to look smart, if you want to pack a persuasive punch, keep your words simple. The research proves it.

Someone turned me onto a paper called:

Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly

The researchers took college admission essays, fancied them up with big words, presented them to research subjects, and then asked them what they thought. The complex texts did not make the author seem more intelligent. The opposite was true. The applicants with gussied up essays were more likely to be rejected. They missed their persuasive goal.

Good legal writers, just like good writers anywhere, know and practice this. Look again at the first three sentences of In re E.R. that I posted on last week. A perfectly accurate way to begin that opinion would be:

The constitution guarantees due process when the state invades a protected interest, such as when it seeks termination of parental rights. Due Process requires, inter alia, notice and an opportunity to be heard. Moreover, said notice must be provided in a fashion such as is reasonably contemplated to be received by the persons whose interests are at stake.

Legally speaking, there is nothing wrong with those sentences. But compare them to what Chief Justice Jefferson wrote. My "fancy" and erudite version isn't nearly as good as:

When the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures. The most basic of these is notice. If the State cannot deliver notice in person, it may try other means that will likely reach the parent.

 Not only is the Chief's version shorter, the jargon is gone. The words are simple, and an abstract legal issue is made concrete and practical:

  • instead of the euphemism "termination of parental rights," you get the plain spoken "sever permanently the relationship between a parent and a child"--real consequences for a real person in this real case.
  • Instead of "due process" you get "fundamentally fair procedures"--the bottom line test of due process.
  • Instead of a formulaic recitation of elements you get "notice" that will "likely reach the parent."

All through the first year of law school, they told me I needed to learn how to "think like a lawyer." True enough, but don't forget how to communicate like a human. I've used the Churchill quote before, but In re E.R. reminded me of it again: "Short words are best and the old words when short are best of all."

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume II, Number 203

About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...