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EFFECTIVE LEGAL WRITING IS IT GOOD By Judith D. Fischer1 A s children, many of us were told not to repeat a word in the same sentence or paragraph. That guideline no doubt arose from the good impulse of teachers who recognized that repetition can be monotonous, as in this example: Not this: Kemper's opening brief was cogent. Her reply brief was also cogent, and her oral argument was cogent. Repetition of the word cogent makes this passage seem unpolished and even juvenile. Because the English language is rich with synonyms and nuance, a writer can convey the above points in more graceful language. Better: Kemper's opening and reply briefs were cogent, and her oral argument was compelling. As this example shows, writing can sometimes be improved by varying language. But that's not always so. H.W. Fowler called senseless changes in wording "elegant variation," in which unskilled writers multiply synonyms but sacrifice clarity.2 A dogged insistence on varied wording has its perils. It can lead a writer to seize on any seemingly equivalent word listed in a thesaurus — but that word may have a slightly different meaning. And as Mark Twain cautioned, "The difference between the almost right word and the right word is really a large matter—it's the difference between the lightning bug and the lightning."3 In legal writing, where precision is essential, the almost-right word will not suffice. For the legal writer, then, it's usually best to use consistent terminology for the same concept. Consider this sentence: "Professors must turn in their OR BAD TO REPEAT WORDS? grades on time. Instructors who do not turn in grades may be fined." The reader wonders, "Are professors and instructors the same persons? Or will fines be imposed only on instructors but not on professors?" If the writer is referring to the same persons, this misguided attempt at elegant variation only confuses the passage. The writer would do better to use a single term consistently. Similarly, it's important to echo courts' language for a key rule or standard. A legal writer may state that, in a claim for assault, a plaintiff must prove that he was in reasonable apprehension of a battery. A writer who reveres variation might then rephrase the standard, saying it requires that a plaintiff have a "concern that his rights would be violated." But this new language is not equivalent to the standard and would take the analysis off the track. Repeating words can also be an effective rhetorical device,4 as in this passage from Lincoln's Gettysburg Address: "Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure."5 A less skilled writer might have felt compelled to change the second nation, editing the passage to read, "whether that nation, or any country so conceived and so dedicated, can long endure." But that change would rob the sentence of its resonance. Or consider this repetition in the opening paragraph of A Tale of Two Cities: "It was the best of times, it was the worst of times . . . ."6 This passage would have languished in obscurity had Dickens instead written, "It was the best of times, but then again things could also be bad." And this sentence by Justice Robert Jackson exemplifies the impact of deliberately repeating a word in a legal context: "We can afford no liberties with liberty itself."7 The passage has been quoted numerous times because of its effective repetition. What's the lesson from these examples? You can sometimes create more polished prose by changing a background word, like the word cogent in the above example. But contrived variation is often a fault, not a virtue. For key concepts like parties' roles or legal standards, it's usually better to use consistent wording. And an occasional repetition for rhetorical impact can strengthen your writing. ENDNOTES 1. Judith D. Fischer is an associate professor of law at the University of Louisville's Louis D. Brandeis School of Law. 2. H.W. Fowler, A Dictionary of Modern English Usage 148 (2d ed. 1975). 3. The Quotable Mark Twain: His Essential Aphorisms, Witticisms & Concise Opinions 300 (R. Kent Rasmussen ed., 1998) (citing Letter to George Bainton (Oct. 15, 1888)). 4. See Bryan A. Garner, The Elements of Legal Style 168 (Oxford U. Press 2002) (explaining that the rhetorical device anadiplosis is "the repetition of a prominent word in a nearby phrase."). 5. Abraham Lincoln, Address Delivered at the Dedication of the Cemetery at Gettysburg, in 7 Collected Works 17, 23 (Roy P. Basler ed., 1953). 6. Charles Dickens, A Tale of Two Cities 1 (Heron 1970). This rhetorical device is called epistrophe, "[r]epetition of an expression at the end of successive phrases, clauses, or sentences." Garner, supra note 3, at 173. 7. United States v. Spector, 343 U.S. 169, 180 (1952) (Jackson, J., dissenting) (quoted in Garner, supra note 3, at 171 as an example of antanaclasis, repetition of a word in two different senses). January 2013 Bench & Bar 23