Lately, I’ve been binge listening to Scriptnotes, a podcast by John August and Craig Mazin about screenwriting and things that are interesting to screenwriters(TM). I’m not a screenwriter myself and, as it turns out, I’m not interested in many of the things that are interesting to screenwriters. (In my defense, that is a very limited and borderline solipsistic category of things.)

Even so, I think that the podcast is brilliant and I can’t get enough of it. That’s because August and Mazin are two very smart, very professional guys who have spent a LOT of time thinking critically about writing. And even when their insights don’t apply directly to legal writing–which is to say, all of the time–I find that they’re still worth considering, because they often model new (or at least fun) ways to approach the subject.

Take their recent discussion of clams. To screenwriters, “clam” is a term of art. August defines “clams” as “jokes that aren’t funny anymore and therefore need to die.” Mazin explains that if you sat down in Starbucks and heard the folks at the next table using these jokes, you would quickly conclude that they were the worst people on earth.

Clams are, in short, the sort of jokes that you can reliably find on this blog.

To give you a sense of the flavor, here are some of the clams that August and Mazin discussed:

  • ___________ on steroids/crack.
  • Let’s not and say we did.
  • I just threw up in my mouth.
  • Check, please!
  • Good talk.
  • Well played.
  • Spoiler alert!
  • Squad goals! [I honestly don’t know what this means–I don’t belong to a squadron–but I see it on Facebook often enough to recognize that it’s meant to be funny.]
  • I could tell you, but I’d have to kill you.
  • I can’t unsee that!
  • Why are we whispering?

As the Scripnotes guys suggest, if I were to try to write a sitcom, I’d probably throw a lot of these in. They would sound like sitcom dialogue, because they’ve been used that way a humongous number of times. And of course, that’s exactly why you would not want to use them in your own writing. And thus I would fail as a screenwriter.

Are there clams in appellate writing–that is, cliches that are so overused that by now they just sound like legal writing and therefore must be destroyed? I think so! Let’s try to list some (h/t to Ross Guberman and, as always, Scalia and Garner):

  • Assuming arguendo
  • Anything else in Latin
  • The instant case
  • This Honorable Court
  • Such (used as a demonstrative pronoun)
  • and its progeny
  • Viable claim
  • Fatally flawed/defective
  • ________ would have you believe
  • Carve out an exception
  • Claw back
  • Inextricably intertwined
  • Conclusory allegation
  • Bald assertion
  • Second bite at the apple
  • So too, here.

I’m sure there are others. Thoughts?