Let's take a moment and look beyond the LSAT Test. Today I thought we could take a few steps into the future and think on a time when you are no longer in the midst of your LSAT prep and well underway in your first year of law school. You may be thinking wistfully on that time right now, but, trust me, when you’re a 1L inundated by assignments and memos and casebooks, you’ll be thinking back fondly on these leisure LSAT prep days. Now, a really important class in law school is your Legal Writing class. This class teaches you how to write for the rest of your career. Doing well in legal writing will help you not only do well on your final exams, but will also help you down the line in acquiring interviews from top firms. Every attorney wants to hire an associate that got an A in legal writing!
Now, it’s a common practice for top editors to have a black list of words that they refuse to use. William Cullen Bryant, one of the editors of the New York Evening Post, had a black list known as the “Index Expurgatorius.” James Gordon Bennett Jr., one of the owners of the New York Herald, had a list called the “Don’t List” for all his journalists.
What should be on your legal drafting black list? Words that add nothing to your point, but merely sully the legal document that carries them. I scoured different lists made by judges, professors and legal drafting experts. Here are three words I found that made it on to almost every list:
This word is innately ambiguous. Many courts have historically not been in agreement on what the word actually refers to. In this accord? In this section? In this subcategory? In this sentence? In this rule? A better phrase to use is “in this agreement,” which may be a couple added words, but is much more clear.
- Provided that
Many drafting experts agree that this phrase has three grave issues: (i) the meaning of the word is ambiguous—it could mean “if,” “except” or “also;” (ii) the scope of the phrase is unclear—it could reach to the previous 10 words, or the previous five paragraphs; and (iii) it causes sentences to stretch for far too long. Why not just place a period and begin a new sentence?
Steer clear from using this word as a pronoun. It becomes too vague and imprecise. Using the word “same” as a pronoun has historically been an issue. In 1841 President Harrison died after only being in office for a little over a month. Vice President Tyler was to become the next president. Article II of the Constitution reads: In case of the removal of the president from office—or of his death, resignation, or inability to discharge the powers and duties of the said office—the same shall devolve on the vice president. But, what is the “same” referring to? The office? The powers and responsibilities of the position? The passage of the 25th Amendment in 1967 finally cleared up the ambiguity. It is now definitively written down that if the president were unable to serve, but remained alive, the vice president would become acting president. On the other hand, if the president dies or resigns, the vice president becomes president.
There’s no rule prohibiting you from using these words. It’s just a suggestion brought to you by top legal writers. My biggest advice on your future legal writing endeavors: keep it simple and keep it concise.
For now, just focus on those Reading Comprehension passages! You’ve still got a while before you need to worry about writing legal documents.