In the title, why did I use the word "same” the first time and “identical” the second time? I did it to avoid using the same word twice. Some legal writers do that: they avoid using the same word twice in the same discussion. This advice, which I can’t find in any written source, is part of the lore of writing.

But writing experts have known about this advice, and have been rejecting it, for years. “Elegant variation” is the term coined by H.W. Fowler to refer to the writing practice of varying the words you use for a single concept. Fowler disliked elegant variation:

The fatal influence is the advice given to young writers never to use the same word twice in a sentence--or within 20 lines or other limit. . . . There are few literary faults so widely prevalent . . .

H.W. Fowler, Modern English Usage 148 (2d ed., Ernest Gowers, ed., Oxford U. Press 1965).

The writing expert Bryan Garner gives it a more apt name: “inelegant variation,” and he doesn’t like it either: “variety for variety’s sake can confuse readers.” Bryan A. Garner, Garner’s Modern American Usage 448 (2d ed. Oxford. U. Press 2003).

I suppose it might be okay in sports reporting:

Temple beat Penn, 74-64;
Villanova bested St. Joseph’s, 81-75;
Duquesne outplayed Drexel, 66-62; and
Pittsburgh walloped LaSalle; 78-63.

But I say that “using synonyms for the sake of variation alone is not recommended in legal writing.” Wayne Schiess, Better Legal Writing 98 (Wm. S. Hein & Co. 2005).

Here’s an example I ran across the other day:

The U.N. has been working in the region for more than three years and says it has been making progress in resolving conflicts among factions. Local officials, however, are not as enthusiastic about the work done by the world union.

Confused? I was. I finally figured out that “world union” meant the U.N.

Reading the facts statement in a criminal case, I got confused when the writer referred first to a “police car,” then a “patrol car,” and later to a “squad car.” Are these different things? I think not. So why the variation?

Another example that caused me momentary confusion:

The court rejected the claimant’s assertion of bias in the admission process . . .

Judge Coogan also held that the claimant had not made out a prima facie case . . .

Finally, the lower court went on to hold that the claimant could not satisfy the burden . . .

When I read the original, it took me a few seconds to realize that “the court,” “Judge Coogan,” and “the lower court” were the same thing. This is bad. Notice that the author was consistent with “claimant.” So why not with the court?

Finally, here are some [in]elegant variations from a single discussion I read in a service-of-process case:

delivered in-hand / manual delivery
left in his possession / left in his custody
aware of / cognizant of
intended recipient / person to be served
evade service / avoid service

I don't like this. It confuses me. Do not be afraid of sounding simple, and do not go nuts with your thesaurus. Unless a clear pronoun is appropriate, when referring to the same thing, be consistent. Use the same word.


Wayne Schiess
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