Search This Blog

Monday, June 2, 2014

Words Not to Use?: Some Good and Bad Suggestions

I came across this article by Jeff Haden in Time yesterday evening, where Haden lists off words to avoid. The article itself is a few weeks old, but LexisNexis tweeted about it today, adding its own advice that practitioners avoid these terms in legal briefs:

Some of the words on Haden's list are certainly words to avoid. Words like "literally," and "irregardless" are terms that should generally be avoided. But the list contains a numerous other words that lawyers should use in certain contexts. And failing to include some of these words could leave an attorney in a bad place.

For example, "arbitrate" is one of the words on the list. Why this word should be avoided is unclear. Haden writes:

Arbitrate appears in many contracts. An arbitrator is like a judge; she hears evidence, reviews documents, etc, and then makes a decision. That’s different from mediate: a mediator doesn’t make decisions but tries to help two opposing parties work out their differences and reach a compromise or settlement. 
So if you agree to enter mediation in the event of a dispute, you and the other party will try to hash out your problem the help of a neutral party. And if you can’t reach an agreement that usually means your next step will be to go to court. 
If you agree to arbitration a neutral party will make a decision that you will have to live with. Normally there are no next steps. (Except maybe disappointment.)
I can't see why "arbitrate" is a term to avoid in the legal context. If a party is drafting a contract, including an arbitration provision can be a very strong way to avoid costly and uncertain litigation. While "there are no next steps," that's usually exactly what the drafter of the contract wants.

There are other words on Haden's list like "waiver," "behalf," "libel," and "majority," that may also be crucial in a legal brief. A father may bring a claim on behalf of his son for libel, and while the defendant may raise a defense of waiver, that tactic may be contrary to a majority rule that undermines the defense.

Admittedly some of Haden's advice is a bit more nuanced than the words indicate -- for example, he argues that "in behalf" should not be confused with "on behalf." And people in Georgia may want to avoid the term "libel" when "defamacast" is proper. But these examples aside, I don't think that LexisNexis was right to flag this as a list of terms that will damage legal briefs.

No comments:

Post a Comment