The Court of Special Appeals on Vexing Text
Do you have bad writing habits that detract from your appellate briefs? Perhaps the arrogant, pompous jerks out there don’t think so. Irregardless, to expose a few annoying tendencies of brief writers, we went to their audience. In this feature of first impression, five Court of Special Appeals judges shared their least favorite words, phrases, idioms, and other writing practices that they frequently encounter in appellate briefs. See Kuzmin v. Thermaflo, Inc., 2009 WL 1421173 at *2 n. 6 (E.D. Tex. May 20, 2009) (“By submitting a poorly written brief, the attorney fails the Court as well as the client.”). Read on to see why this paragraph would drive the members of that Honorable Court nuts.
Judge Berger: One of my least favorite words that I frequently see in appellate briefs is “irregardless.” I invariably cringe whenever I see the word in print. I thought that most of us knew that the use of the word “irregardless” is disfavored and outright incorrect. Indeed, the word does even not pass spell check because it does not exist. Instead, most of us were taught to use the words “regardless” or “irrespective.” Regardless, some writers persist in using words that do not exist.
Judge Friedman: I guess I haven’t been here long enough to develop any real hatreds. I will say that I dislike it when advocates are not careful in distinguishing federal from Maryland precedents. If you want to cite a federal case, fine, but explain why the analogy is appropriate.
Judge Zarnoch: There are so many of these cliches: flood gates, slippery slope, first impression, draconian, disingenuous and specious. Too bad you’re not doing argument cliches. “Your Honor, that’s a good question” and “I didn’t try the case below” spring to mind.
Judge Nazarian: I don’t begrudge anyone (lawyer, judge, or otherwise) his or her personal voice, style, or pedantry. To the contrary, color and individual character can bring legal writing to life, and to great persuasive effect, so I encourage your readers to stretch a little, even at the risk of failing, rather than defaulting safely to a wooden or mechanical style. And for that reason, individual writing elements don’t really bother me, even if I would never use them myself. More generally, though, I find that empty words detract from any argument, and the most common category that appears in briefs is gratuitous legalese. We are an honorable court, but calling us This Honorable Court throughout a brief adds no substance while making any sentence more cumbersome. I doubt most writers would talk about the “instant case,” an event happening “of even date,” or say “herewith” or “heretofore” in everyday speech, but none of these or their counterparts conveys any helpful information or context or nuance. They only make a brief longer and harder to read, which is bad for everyone.
Judge Graeff: When litigants make personal attacks on the trial court or opposing counsel, utilizing a sarcastic or hostile tone in their argument, as opposed to using the record facts and the law to advance their argument.