“Said” is not unlike a curse word. I am not totally against the use of curse words (catch me in the fourth quarter of a playoff game and you’ll hear more expletives than a Quentin Tarantino movie). But curse words are effective only when used creatively: a perfectly timed cuss can inspire laughter and ease tension. Abundant swearing without inventive purpose, on the other hand, makes clear that the swearer has a very limited vocabulary, cannot think of anything better to say, and thus simply defaults to what is easiest. Anyone and everyone can swear, but not everyone can effectively use engaging words.
An attorney who defaults to the use of the word “said” makes the same mistake as the overly profane comedian. The word “said” is a red flag announcing the fact that an attorney’s vocabulary is wanting and that he could not think creatively enough to explain his point in a better, more illustrative way. Take this example from Bryan Garner’s The Elements of Legal Style (Second Edition):
“A considerable number of persons were attracted to said square by said meeting, and said bombs and other fireworks which were being exploded there.”
If I am a judge and I read that sentence, I not only conclude that the writer is more than 1,000 years old, but I also conclude that the attorney does not take too seriously his need to effectively communicate his position through his legal writing. This is especially true given that, in most cases, the word “said” can be sufficiently and easily replaced with the simple words “the,” “that,” “this,” or any other pointing word. For example, here is the same example, rewritten without resort to that baneful word:
“A considerable number of people were attracted to the square by the recently adjourned meeting, and the bombs and other fireworks which were being exploded there.”
Deleting “said” removes the prejudices that accompany the word’s use. And adding “the recently adjourned meeting” creates the opportunity to remind your reader of something you wrote before, which may be a crucial fact in your case. That chance is missed by resorting to the use of “said.” (For the record, I also changed the word “persons” to “people,” another entirely acceptable and improved style revision.)
Attorneys, whether you have noticed or not, are creative professionals: attorneys succeed by thinking imaginatively about complicated issues. The same standard should be used in your legal writing — write creative, engaging sentences that inspire your reader (often a judge or opposing counsel) to understand, and ultimately accept, your position.
So if “said” rears its ugly head in your legal writing, take a moment to ask yourself this question: Is there a better, more interesting way I can write what it is I am trying to say? The answer will always be, “F— yeah.”