Intensifiers Part 3: You’re Literally Killing Me

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Part 3 of 3.

As legal writers, we might be tempted to use intensifiers to bolster our points—to persuade. These days, legal writers might even be tempted to use the word literally. I’ve got some bad news about literally, but I’ve got good news, too. It will make you so happy you’ll literally be walking on air.

Linguists and others who study language agree: In speech, the word literally is becoming an all-purpose intensifier like highly, clearly, and extremely. That’s the bad news, and there’s nothing much we can do about it. Language changes, and sometimes it changes for the worse. (Did you know that long ago, the frozen dessert was called iced cream? Incorrect pronunciation and spelling over time changed it to ice cream. It’s happening with iced tea, right?)

That’s why we hear nonsensical statements like these:

  • he was literally glowing
  • she was literally rolling in dough
  • my head literally exploded

But in legal writing, which values precision, we shouldn’t follow this trend. So even if you’re willing to say, in casual conversation, “My boss is so impatient, I’m literally walking a tightrope,” please don’t use this trendy sense of literally in legal writing. “The delays were such that the buyers were literally banging their heads against a wall.”

Now the good news. I did a search for the word literally in appellate briefs filed in the Austin Court of Appeals, the Texas Court of Criminal Appeals, and the Texas Supreme Court. I got nearly 2000 hits, and I skimmed dozens of them. I couldn’t find any genuinely erroneous uses of literally. There were some close calls, but overwhelmingly, brief writers use literally when they mean . . . literally. Hurray for these:

  • The court concluded that, literally applied, the ordinance’s definition of “nonconforming use” is at odds with the ordinary meaning of that term.
  • Aerofile denied that Hanson’s attempted forfeiture was effective because Hanson failed to strictly and literally comply with the notice provision.
  • The statute can be read both literally and rationally.

Let’s keep it that way.

Intensifiers Part 2: Replace and Specify

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Part 2 of 3.

As legal writers, we might be tempted to use intensifiers to bolster our points—to persuade. Yet often, the better advice is to avoid the intensifier. Last week I suggested dropping the intensifier. Here are two more suggestions.

Replace it.
With some thought, you can delete an intensifier-plus-verb and intensifier-plus-noun constructions and replace them with a single, forceful word. So—

  • completely wrong > inaccurate, incorrect, mistaken, unsound
  • extremely smart > brilliant
  • highly capable > accomplished, proficient
  • quickly went > hustled, sped, rushed
  • very sure > certain

Again, develop an editorial sense. Replacements don’t always work; sometimes the single-word option is loaded. If instead of very bad you write terrible or dreadful, you might interject undesired subjectivity or emotion.

Specify.
Rather than rely on a vague intensifier, legal writers can use details to emphasize. Here’s a classic example:

2. It was very hot.

2a. It was 103 degrees in the shade.

Here’s another example of specifying (with two more persuasion techniques: a dash and a sentence that ends with key words):

3. The transaction at issue obviously did not take place at Eason’s residence.

3a. City detectives set up a controlled purchase with a cooperating defendant at Jay’s Auto Body. It was there that Eason handed over a bag of methamphetamine—not at Eason’s residence.

As you can see, specifying takes more words, and so, as with all writing, exercise editorial judgment. Weigh the longer, specific description against the shorter, vaguer (and weaker) one.

Next week: Part 3 will literally knock your socks off.

Intensifiers Part 1: Are You Blatantly Bolstering?

Part 1 of 3.

As legal writers, we might be tempted to use intensifiers to bolster our points—to persuade. What’s an intensifier? According to Merriam-Webster’s Dictionary of English Usage, it’s a “linguistic element used to give emphasis or additional strength to another word or statement.” Intensifiers can be various parts of speech: adverbs (clearly), adjectives (blatant), participles (raving), and more.

Intensifiers get a lot of bad press, and clearly is king:

  • [Clearly] is so overused in legal writing that one has to wonder if it has any meaning left. (Enquist & Oates, Just Writing)
  • Doctrinaire adverbs such as clearly and obviously are perceived as signaling overcompensation for a weak argument. (Garner, The Winning Brief)
  • When most readers read a sentence that begins with something like obviously, undoubtedly … and so on, they reflexively think the opposite. (Williams, Style: Lessons in Clarity and Grace)

One article on intensifiers in legal writing suggests that overusing intensifiers is bad—or very bad. In a study of U.S. Supreme Court briefs, the authors found that increased intensifier use was correlated with losing, especially for appellants. The authors allege no causal connection—they couldn’t prove it was the intensifiers that lost the cases—but the correlation is interesting. Lance N. Long & William F. Christensen, Clearly, Using Intensifiers Is Very Bad—Or Is It? 45 Idaho L. Rev. 171, 180 (2008).

So what should we do instead of overusing intensifiers? One suggestion here, two more next week, and a discussion of literally in part 3.

Drop it.
Often, a sentence gets stronger without the intensifier. Which of these is more forceful?

1. Clearly, an attorney is not an expert on what is a “Doberman,” and there is no showing in the affidavit that Squires is an expert on Dobermans. It clearly is a fact issue for the trier of fact.

1a. An attorney is not an expert on what is a “Doberman,” and there is no showing in the affidavit that Squires is an expert on Dobermans. It is a fact issue for the trier of fact.

Dropping intensifiers doesn’t always work, and we can’t completely banish them. Some legal standards require them: clearly erroneous, highly offensive. Legal writing entails some qualifying, but good legal writers develop a sense for when they’re appropriately qualifying and when they’re blatantly bolstering.

Two more suggestions next week.

“attorneys, who are married to each other, . . .” Restrictive and nonrestrictive clauses

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What’s the difference between these two examples?

1. Does a conflict of interest exist where attorneys, who are married to each other, represent opposing parties in the same civil matter?

1a. Does a conflict of interest exist where attorneys who are married to each other represent opposing parties in the same civil matter?

In number 1, the clause “who are married to each other” is a nonrestrictive clause because it’s set off with commas. So that clause, or modifier, doesn’t restrict the attorneys involved; rather, it purports to give us information about attorneys. But that doesn’t make sense. Attorneys are married to each other? All attorneys?

In 1a, the clause “who are married to each other” is a restrictive clause because it’s not set off with commas. So that clause restricts the attorneys involved to those who are married to each other, which makes sense.

One more pair:

2. The lawnmower, which is broken, is in the garage.

2a. The lawnmower that is broken is in the garage.

Now we have relative pronouns in addition to the presence or absence of commas to help us.

In number 2, the clause “which is broken” is a nonrestrictive clause because it’s set off with commas. So that clause doesn’t restrict the lawnmower involved; rather, it gives us information about the lawnmower–it is broken. That makes sense, but it’s a different meaning from 2a.

In 2a, the clause “that is broken” is a restrictive clause because it’s not set off with commas. So that clause restricts the lawnmower involved to the one that is broken. By the way, the implication of 2a is that there’s more than one lawnmower around, so the writer/speaker is specifying the one that is broken.

The commas in number 1 are technically incorrect, but the mistake probably isn’t fatal. Most readers would understand that the question refers to attorneys who are married to each other.

Mastering the Colon

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You could probably use more colons. They’re handy: they can help you write concisely and briskly. In this column I’ll discuss several good colon uses and go over some rules. (I won’t address colons in numerical ratios, in citations to a court record or evidentiary documents, in article titles, or for times.)

The colon is a pointer, according to Bryan A. Garner in The Redbook, § 1.21. “Think of it as an arrow,” he says. It introduces explanations, amplifications, and illustrations.

The defendant has two choices: plead guilty or fight.

Lasker got what the appellate team worked hard to obtain: remand for an evidentiary hearing.

The merger agreement was like a puzzle: working it out was as rewarding as seeing it finished.

Of course, the colon also introduces lists and quotations, according to June Casagrande in The Best Punctuation Book, Period at 63-64. Those are some of the most common colon uses in legal writing.

Summary judgment is inappropriate for three reasons:
(1) …
(2) …
(3) …

In Clendenen v. Kirby, Inc., the court refused to apply equitable tolling to state-agency filing deadlines, stating as follows:

[block quotation]

The text before a colon that introduces a block quotation need not do so explicitly (like “stating as follows”) as long as the sense is clear. In fact, the colon itself often makes the sense clear. It says to the reader, “Hey, I’m about to quote something.”

In Clendenen v. Kirby, Inc., the court refused to apply equitable tolling to state-agency filing deadlines:

[block quotation]

You need no colon after words like including and such as, and most consider it an error.

  • Not this: The defendant hired three lawyers, including: a transactional attorney and an appellate specialist.
  • But this: The defendant hired three lawyers, including a transactional attorney and an appellate specialist.

What structure comes before the colon in regular text? The traditional rule is that a colon should follow only an independent clause. Under that rule, these are wrong:

The testator stated:

The statute provides:

The attachments are:

The direct object or complement that would complete the thought is missing, so it’s not an independent clause. That rule is why we often see these constructions with colons:

The testator made the following statement:

The statute provides as follows:

The attachments are the following:

This traditional rule about independent clauses still applies in formal writing, especially if you know your reader is a punctuation traditionalist. But it’s passing away in most informal writing. And the traditional rule doesn’t apply in one context: Garner says you can ignore it in legal drafting when introducing numbered, lettered, or tabulated subparts. Garner, § 1.28.

The Lessee shall not: (1) paint, wallpaper, alter, or redecorate any portion of the Property; (2) change or install locks; or (3) place signs, displays, or other exhibits on the Property.

The Lessee shall not:
(1) paint, wallpaper, alter, or redecorate any portion of the Property;
(2) change or install locks; or
(3) place signs, displays, or other exhibits on the Property.

What about capitalization? If what follows the colon is not an independent clause, do not capitalize the first word. If what follows the colon is an independent clause, capitalize the first word or don’t, according to your preference, a house style guide, or office practice—but be consistent.

Finally, the colon is appropriate after the greeting or salutation in a formal letter. Casagrande at 65 and Garner, § 1.25.

Informal: Dear Sandra,

Formal: Dear Judge Haynes:

Oh. And one space after colons, if you don’t mind.