I Would Argue ... Please Don't

Another writing anomaly that is odd and warrants deletion.  I have read, "plaintiff would argue" and the brief goes on to set forth a position.  Would has 12 definitions in Merriam Webster.  

past tense of WILL

1—used in auxiliary function to express plan or intention said // we would come 

Will invokes a future plan.  While mandatory, it has not happened.  

2: SHOULD //knew I would enjoy the trip // would be glad to know the answer

Use of would to mean should reminds me of a story my father tells.  He stayed with a friend for a brief period.  The friend owned a pit bull that looked intimidating.  The dog slept in the laundry room.  My father asked his friend if he was going to be alright going to the laundry room when no one else was home.  His friend responded, "you should be OK."  Not very refreshing.  

3—used in auxiliary function to express consent or choice // would put it off if he could

4—used in auxiliary function to express probability or presumption in past or present time // would have won if I had not tripped 

These definitions of would denote a conditionality to the expression.  I would if I could, but I really can't.  

5—used in auxiliary function to express a request with which voluntary compliance is expected // would you please help us

We don't need someone's permission to make an argument, space or time permitting.  The patent fact that the writer goes on to state an argument eliminates use of would to carry this definition.  

 6—used in auxiliary function with rather or sooner to express preference // he would sooner die than face them

We don't prefer to make an argument, we make the argument.  Wrong definition.  

 7a—used in auxiliary function in the conclusion of a conditional sentence to express a contingency or possibility // if he were coming, he would be here now

b—used in auxiliary function in a noun clause (such as one completing a statement of desire, request, or advice)we // wish that he would go

Another range of possibility.  But the brief is the star of the next Nike commercial for lawyers, "just do it."   

8—used in auxiliary function to express custom or habitual action // we would meet often for lunch

 Now that's helpful in introducing boilerplate.  My clients would often make this argument.  Perhaps we should not wave a flag to highlight the introduction of boilerplate -- which the judges hate.  

9: COULD // the barrel would hold 20 gallons

The argument could hold water.  Not what we mean in the context of a brief.   

10—used in auxiliary function to express doubt or uncertainty // the explanation … would seem satisfactory

Another nuance of would that leaves the reader wanting for something more.  The brief should never leave doubt or uncertainty, not if our clients want to win.  Establishing doubt or uncertainty is fine in a criminal courtroom and we represent the defendant.  But we represent the claimant that has the burden of proof or at least the burden of persuasion at step five.    

11a—used in auxiliary function to express wish, desire, or intent // those who would forbid gambling
b—used in auxiliary function to express willingness or preference // as ye would that men should do to you— Luke 6:31 (King James Version)

Again, there is no wish or desire to make an argument.  We just make the argument.  

12a: strongly desire : WISH I would I were young again—often used without a subject and with that in a past or conditional construction // would that I had heeded your advice
b archaic : WISHED, DESIRED
c archaic : wish for : WANT 

Pick your definition and own the definition that you pick, or don't use the word.  Garner, and others, recommend that you not cite an authority without looking it up.  Using words that sound awkward in the context warrant the same respect, look them up.  In addition to presenting a phrase that really does not mean what the writer meant, the introductory clause represents worthless words that add to the count and add nothing to the substance.  Delete words and phrases that detract from the power of the presentation because those words are either inappropriate or unnecessary.  I would end here ... and I do end here.

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Suggested Citation:

Lawrence Rohlfing, I Would Argue ... Please Don't, California Social Security Attorney (May 20, 2021)  https://californiasocialsecurityattorney.blogspot.com/2021/05/i-would-argue-please-dont.html