On April 18th, I published a post about using the word “but” to convey sharp contrast with a previously stated point. I referred to “but” as a “power word,” which is the name I use  for words in legal writing that do a better job than similar words at conveying certain meaning.  The power word I’m going to discuss in this post is “although.”

“Although,” a subordinating conjunction, indicates contrast between two clauses of a sentence and attaches a subordinate clause to the main clause.  In legal writing it is a power word to turn to when you need to either downplay a weakness in your own client’s argument or highlight a weakness in the opposing party’s argument. Given that a large part of any appellate brief is composed of those types of argument, it is easy to understand the importance of a word that is effective in helping convey such points.

In his excellent book on how the techniques great appellate advocates use in writing their briefs, Ross Guberman discusses the use of “although” to lessen the impact of adverse facts.  He provides the following example of how Ted Olson handled adverse facts in the winning brief he filed in the infamous Citizens United case before the United States Supreme Court by positing the facts in context.

In mid-2007, Citizens United began production of Hillary: The Movie, a biographical documentary about Senator Hillary Clinton, who was then a candidate to become the Democratic Party’s nominee for President. Although Senator Clinton’s candidacy was the backdrop for the 90-minute documentary, neither the movie’s narrator nor any of the individuals interviewed during the movie expressly advocated her election or defeat as President.

Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates (2011), at 69.

Several years ago, I used a similar approach — using the subordinating conjunction “although” — when beginning a key sentence in a brief that I wrote for two former assistant football coaches of the University of Alabama in their defamation case against the NCAA where the critical issue was whether or not they should be classified as public figure plaintiffs. I had to downplay their high profile status in a state where college football fans practically worship such coaches:

Although Cottrell and Williams had some public notoriety in Alabama by virtue of their positions with the University and their involvement in the controversy of the NCAA investigation, they lacked the ability of public figures to gain access to the media and influence the outcome of the controversy because of the strict NCAA “gag order” placed on them during the investigation, with which they complied.

In both these examples, “although” was used as part of a sentence to soften the effect of adverse facts. In this next example, the same approach was used to weaken the effect of facts favorable to the opposing party.  In defending a property owner in a personal injury, slip-and-fall case from a few years ago, I wrote:

Although Lawrence testified extensively to the jury about the “anxiety” and “depression” that he suffered as a result of his injuries, he presented no medical testimony of a diagnosis of depression, nor any evidence that he had sought medical treatment for anxiety though he regularly visited his physician for treatment of his diabetes and high cholesterol.

These examples should demonstrate the power of “although.” There are many other subordinating conjunctions for a brief writer to use — including “legalese” ones such as “notwithstanding” that some lawyers seem drawn to — but in my opinion none are more effective for the purposes noted above than “although.” Keep that in mind when you are writing your next brief.  Just be sure not to overuse it.