Law.com has an interesting article about Judge Stephanos Bibas’s writing advice for lawyers. In it he bemoans both how lawyers don’t read enough “good fiction and journalism” and the use of “fancy Latinate legalisms” in legal writing.
His suggestions that lawyers read more good novels and real journalism is quite sound. The great Judge Frank Easterbrook once made a similar suggestion in a Bryan Garner video, urging lawyers to read novels and long-form journalism. (I think he recommended the New Yorker, Public Interest, and Commentary, but it was a long time ago, so I might be misremembering.)
On the avoidance of “$5 words,” I’m not so sure. It’s true that using “risible” instead of “laughable” or even “funny” is more than a little stilted. But sometimes William Buckley words actually convey correct meaning in ways that more common words don’t.
Of course they can carry some risk, as I once learned the hard way.
High-profile Judiciary Committee hearings like Supreme Court or attorney general nominees typically include a day of “outside witnesses.” These days are a complete waste of time. When Mike Davis ran judicial nominations during Brett Kavanaugh he described it as “the Star Wars cantina day.”
Come the Amy Barrett hearing, we had to decide what to do about Star Wars cantina day. We concluded we couldn’t get rid of it, but at minimum we should limit the number of witnesses invited to fundraise off their smears of our nominee. It’s mostly a tool for the minority to cause trouble.
To that end I had a call with my Democratic counterpart (who has since gone on to great things), where I told him that we would do a fourth day but it was going to be abbreviated. Needing to be diplomatic about the stupidity of the traditional exercise, I described the outside witness panel as “supernumerary.”
Fast forward four months or so to Merrick Garland’s attorney-general hearing. I received a call from my Democratic counterpart to negotiate its parameters and we got to the outside witness day. He said to me that they want a limited number of witnesses — fewer than Bill Barr had. “It’s, as you said to me, supernumerary,” he remarked. He then told me he had looked up the word after we talked in October and remembered it. He had me dead to rights.
Sometimes the right word is unusual and unusual words stick, for better or worse.