• Daniel Meyerowitz-Katz

I am vigorously opposed to vigorous defence

Updated: Jun 24, 2019

You can't just defend a claim these days, you have to "vigorously" defend it.

This post was triggered by an email from Lawyers Weekly with the "breaking news" that a claim of sexual harassment against the law firm Hicksons will be "vigorously defended". That's right, not just defended, vigorously defended. That means defended "in a way that involves physical strength, effort, or energy; strenuously", or "forcefully".

Sounds intimidating right? Except that every other defended claim over the past 20 years seems to have been defended in the same way.

A quick Google search for "vigorously defending" reveals that Apple is vigorously defending a patent claim by Nokia, Swiss bank UBS is vigorously defending a claim by the US Department of Justice, AMP is vigorously defending the class actions against it, and Scottish football team Rangers are vigorously defending player Jon Flanagan from a two-match suspension. And that's just a handful of the ones on the first page.

The same Google search reveals that I am not the first person to notice this. In May 2016 there was an opinion piece by Dan McGinn of McGinn and Company in Law 360 complaining about the same thing. As he said, "Apparently, an unwritten rule has emerged requiring every legal press release to include a pledge for 'vigorous' representation. Every. Single. One. No exceptions allowed."

A search on Jade for "vigorously defend" reveals 350 judgments in which that phrase has been used. There are about as many results on Austlii too.

The first use in an Australian judgment seems to have been in MacKay v Gordon and Gotch (Australasia Ltd) [1959] VicRp 60; [1959] VR 420, although that refers to an article which vigorously defended "the practice of intercourse out of wedlock for the express purpose of satisfying a desire for an illegitimate child, without suffering the so-called risk of an unsuccessful marriage." The next is a comment by counsel in Annand & Thompson Pty Ltd v Trade Practices Commission [1979] FCA 62; 25 ALR 91. There were a few more vigorous defences scattered through the 1980s and 1990s, but legal defences really seem to have become vigorous since about 1999.

One of the most recent references to such defences was an apparently sardonic remark by Lee J in Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462, at [21]:

"The respondent is yet to file a defence to any allegation made against it, but submits that it will “vigorously defend” the claims made. Vigorously or otherwise, assuming pleading issues are resolved, the proceeding will likely be contested and will occasion significant legal costs until it is resolved either by a paction (subject to approval by the Court) or determined at a hearing or hearings."

It seems that his Honour may have the same reservations about the term as I do.

Adding the word "vigorously" before "defended" is meaningless and has no evocative power. It is lazy and hackneyed writing. As George Orwell would have said, it is merely used because it saves people the trouble of inventing phrases for themselves.

So here's a plea to the other lawyers out there: next time you are defending something, try to think of an adjective other than "vigorous" to describe the way you are doing it. The English language is rich with options: forceful, strong, fierce, robust, spirited, Churchillian, Herculean.

Or if you're really brave, maybe you don't need any of those words. Maybe the matter could just be "defended".

Think about it.

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