THE LEGAL WRITER The Twinkies in Legal Writing Empty Clichés By Suzanne E. Rowe of what you want your legal writing to be. Because a cliché is predictable, the judge reading it (or listening to it during oral arguments) might tune out for just a moment. Who needs to hear that old line again? Even worse, the cliché might be preventing you from doing the very dif- ficult work of translating complex ideas into clear prose. iStock Clichés as Twinkies Clichés can be like Twinkies: they may have superficial appeal, but they lack substance. As Judge John Acosta says, they’re empty calories. Let’s start with just one example to see the emptiness of clichés. M y husband and I ride a tandem bicycle, which means we hear jovial drivers make the same joke again and again: “She’s not pedaling back there!” 1 That was funny the first time we heard it. It was modestly amusing the next five times we heard it. Now we just smile politely. We know that drivers are simply being friendly, which we appreciate. But we think to ourselves, “Really? That again?” Some judges feel the same way about clichés included in documents submit- ted to the court. Lawyers are trying to be interesting, but often that effort falls flat. Here’s why. Definition To begin, let’s be clear on what a cliché is. It’s not a clever phrase that concisely summarizes a complex idea. Rather, a cli- ché is a phrase “that is overused and be- trays a lack of original thought.” A cliché is dull and predictable, just the opposite “Hide the ball” What does “hide the ball” mean? Does it mean the same thing in every instance? What in your brief is the ball? Why is it being hidden? Where? Most importantly, wouldn’t the judge benefit from having you simply explain these key ideas — in non-cliché prose? I did a quick search of briefs in which the term “hide the ball” was used. The topics included: 1) a ballot measure; 2) trial tactics regarding voir dire; 3) defen- dants who had been completely forthcom- ing with information when questioned by the police; and 4) a party quoting just the favorable part of the statute. My favorite was a case in which, and this is true, a dog trainer actually hid a ball from a dog. In the ballot measure brief, a key point was allegedly tucked into the summary, and only in the summary. This was one of the clearest uses of the term “hide the ball,” and I might even condone its use. Then I thought a bit more: The key point was the ball; it was hidden in the summa- ry, which voters might likely skip. But was it really hidden, if it was right there on the page in black and white? Further, as I con- tinued to click through documents where various balls were hidden, I could easily see how a judge might tire of reading that particular cliché. Interestingly, in my brief search, the attorneys compounded their problem clichés. One followed a paragraph that talked about “hiding the ball” with a para- graph about “hardball” tactics. I paused to ponder whether the hardball was the ball that had been hidden. I concluded it was not. In another brief, the term “hide the ball” was joined by a slash with “ambush” (e.g., the party played “hide the ball/am- bush”). My childhood is far behind me, but these seem like different games, unless the hidden ball subsequently performed the ambush. Avoidable Clichés Consider the following clichés that often appear in legal documents. Then, imagine yourself a judge, reading one of the clichés for the fifth time that week. Ask yourself whether the cliché’s mean- ing is apparent and whether it still sounds fresh? Or is it like a Twinkie that’s been on the shelf for 13 years? “Back-pedaling.” “Fishing expedition.” “Second bite of the apple.” “It was a sham.” “Not a shred of evidence.” “Red herring.” “Like comparing apples and oranges.” “Putting the cart before the horse.” “Square peg in a round hole.” “Shell game.” “Cover their tracks.” “Level the playing field.” To continue with the last example, and to continue your role-playing as a AUGUST/SEPTEMBER 2016 • OREGON STATE BAR BULLETIN 15