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The Jury Is In: Shun “Instant,” “Implicate,” and “Absent”—But Keep “Chilling Effect”

Which words bug your fellow attorneys and judges? In the last newsletter, I polled thousands of readers on what they think of “absent,” “ambit,” “instant,” and other language that Judge Posner and others have scorned. Find out which words get a thumbs-down—and which words your colleagues propose in their place.

Here are the results, from most hated to least:

#1. Instant – 3% approval.

Almost no one likes “instant,” as in “the instant case” or “the instant transaction.”

“This” was the most popular alternative, as in “this case.”

“Present” was the runner-up, with 21% approving. I myself prefer “here” to “in the present case.”

#2. Implicate – 10% approval.

My readers see vague implications in “implicate” and propose substitutes galore.

“Raise,” as in “raises privacy concerns,” was favored by 32%.

And “involve,” which to me is also vague, was preferred by another 13%.

#3. Absent – 13% approval.

“Without” won a whopping 65% approval as a replacement.

“In the absence of” took 18%. Yes, 18% of my readers would rather use four words than that odious single word “absent.”

#4. Ambit – 15% approval.

Readers call “ambit” both obscure and pretentious.

“Scope,” at 54%, was the clear crowd favorite.

“Area” and “bounds” both received 12% approval.

#5. Facially – 15% approval.

“On its face” was backed by 46% of my readers, who are no fans of half-baked adverbs. So “invalid on its face,” not “facially invalid.”

Another 12% of readers sided with “appears,” but just as many found “facially” superfluous.

#6. Progeny – 26% approval.

Although Posner and Scalia have many other disputes, Scalia, too, has railed against “progeny.” “And cases following it,” at 16%, was the most popular alternative when “progeny” is used for a line of cases. But what about “and subsequent cases”? Does that not make it clear that the later cases applied the first one?

#7. Prong – 27% approval.

Readers did not love this word, but they also had a hard time finding anything better.

“Factor” and “part” both seized 31% approval, as in “a three-part test.” I like them, too.

#8. Chilling effect – 65% approval.

“Chilling effect” was the only phrase in our poll that won a majority of my readers’ love, though even those happy souls prefer to limit the phrase to First Amendment contexts.

“Discourage” was preferred by 29% of readers.

And “chill” (as a verb, and not in the teenager sense of the word) curried favor with another 11%.

Do you have your own legal term or convention that you’d like me to poll next time? Just email me at ross@legalwritingpro.com and put “poll question” in the subject line.

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