Somewhat Qualified, Part 2

Qualifying legal conclusions

Legal matters are often qualified: some conclusions might merit absolutely and certainly, while others deserve possibly and likely. So legal writers justifiably use qualifiers. In my last post, I discussed qualifying factual statements; here I discuss qualifying legal conclusions.

Relying on a survey of legal-writing textbooks, I can report that these are the most commonly recommended qualifiers for legal conclusions:

  • likely
  • probably
  • plausibly
  • possibly
  • should

The most frequently recommended are likely and its forms, with probably coming in second.

Many of the textbooks surveyed discuss the traditional, predictive memorandum, in which a lawyer predicts an outcome that may be less than certain. But the same qualifiers are useful in other contexts, too—whenever a lawyer gives advice or offers a recommendation.

In fact, likely and its forms are part of a useful continuum from positive to negative certainty. At one end is a direct yes or will—a legal result will happen; the outcome is certain. At the other is no or will not. In between are likely and unlikely, which might be further qualified: highly likely, highly unlikely, and so on.

Now the advice.

1. Don’t qualify.

As with much writing advice for adverbs, adjectives, intensifiers, and qualifiers, the best advice is to avoid them when you can. Bryan Garner recommends that legal writers “toss out timid phrases.”[1] What’s more, he calls these qualifiers Fudge Words and offers as an undesirable example, “It would seem to appear that….”[2] That’s a trifecta: three Fudge Words in one clause: would, seem, and appear.

The urge to qualify is natural, but legal writers must be careful of “overhedging.” Granted that legal outcomes are rarely certain, we sometimes overcorrect and qualify too much. It’s a natural tendency, and novices might be particularly vulnerable.

In fact, a colleague in another state forbids his first-year law students to qualify conclusions at all. He believes it forces them to research carefully, analyze precisely, and write clearly.[3] But even if you don’t enforce a prohibition, it’s a good default: don’t qualify. For example (qualifiers are in boldface):

  • Before: A possible lawsuit by Heather Green against her employer, Manzares & Cline LLP, could likely survive a motion to dismiss.
  • After: A lawsuit by Heather Green against her employer, Manzares & Cline LLP, will survive a motion to dismiss.

2. Qualify and explain.

When you decide that you must qualify your conclusion, that you must hedge, do your best to explain why—immediately and concretely. Explaining has two benefits.

You benefit. Forcing yourself to articulate why you’ve qualified your conclusion can lead to insights about the level of qualification. Maybe you over- or under-qualified your conclusion, which you can see now that you’ve had to explain it. Revise accordingly.

Readers benefit. Explaining why you qualified a conclusion serves clients and decision-makers. They already know that likely means better than 50-50 but not a sure thing. By explaining, you make your conclusion more concrete and empower them to ask additional questions or pursue other options.

Here’s an example that uses the qualifier likely and then gives a concrete explanation of why the writer qualified the prediction:

  • A lawsuit by Heather Green against her employer, Manzares & Cline LLP, will likely survive a motion to dismiss. Nonlawyer employees may sue for retaliation because it encourages reporting of illegal activities. But in-house counsel may not sue because lawyers have an independent ethical obligation to report illegal activity. Green, an associate, did not represent her employer as an attorney, as in-house counsel do. She is not under the same ethical obligation to report illegal activity and deserves the incentives provided by a retaliation suit.

So set your default at no qualifications, but when you must qualify, be clear about why.

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[1] Bryan A. Garner, The Elements of Legal Style 35 (2d ed. 2002).

[2] Bryan A. Garner, Garner’s Dictionary of Legal Usage 381 (3d ed. 2011).

[3] Andrew J. Turner, Helping Students Grow Professionally and Overcome Fear: The Benefits of Teaching Unqualified Brief Answers, 25 Perspectives: Teaching Leg. Res. & Writing 3, 4-5 (2016).

Somewhat Qualified, Part 1

Don’t overuse qualifiers in stating facts. Key takeaways:

  • qualifiers can weaken factual statements
  • dropping the qualifier and specifying instead often improve the factual statement

Legal writing deals with concepts that often require qualification, so legal writers occasionally use qualifiers. (I used two in that sentence: often and occasionally.) In this post, I define qualifiers and discuss the experts’ advice for using them when writing about facts. I then offer two recommendations.

A qualifier is a word or phrase, especially an adverb or adjective, that clarifies or modifies another word. We use qualifiers to soften or limit, and intensifiers (discussed in this blog here, here, and here) to strengthen and bolster. It’s the difference between “the cleaning solution was somewhat defective” (qualifier) and “the cleaning solution was highly defective” (intensifier).
The most common fact qualifiers in legal writing relate to frequency and quantity. Here’s a representative list:

  • generally
  • often
  • occasionally
  • probably
  • usually
  • slightly
  • sometimes
  • somewhat
  • typically
  • virtually

Advice from the experts is uniform: qualifiers applied to facts are undesirable in legal writing. In fact, Garner’s Dictionary of Legal Usage contains an entry on qualifiers called Weasel Words, and Garner says these words “have the effect of rendering uncertain or toothless the statements in which they appear.”[1] New York trial judge Gerald Lebovits says that instead of using words like typically or usually, legal writers should “resort to the exact figure … or rethink your decision to resort to the qualifier in the first place.”[2]

Steven Stark, a trial lawyer and the author of Writing to Win, says, “Opinions can be qualified, but facts should not be.” He advises, “If you don’t know a fact, don’t hedge—find it out or somehow write around it.”[3] And one of my colleagues, also an experienced trial lawyer, “views a qualifier as a red flag—either the attorney hasn’t nailed this fact down yet or it’s maybe not true.”

That’s all good advice, and I’ll add only one comment. You can’t eliminate all qualifiers. They’re occasionally (qualifier) necessary, and sometimes (qualifier) harmless. For example, there’s no flaw in this sentence: “About half the time, Crosby, not the supervisor, gave the instructions.” The qualifier (about) serves only to soften the possible implication that the half was exact—precisely 50%. That’s harmless.

So rather than banishing qualifiers, the better practice (as with all legal-writing tips) is to inform yourself of their effects and exercise your editorial judgment as to keeping or cutting. Now the tips.

1. Drop the qualifier.
Your fact statement might be better without the qualifier, and it’ll certainly be more concise. So instead of “the cleaning solution was somewhat defective,” you can write, “the cleaning solution was defective.”

Here’s another example: “The average person usually waits three months before seeing a doctor.” The idea is already qualified by the “average person,” so we can omit usually: “The average person waits three months before seeing a doctor.”

2. Quantify or specify instead.
Another tip is to replace the qualifier with specifics. For example, here the writer uses virtually to make a general statement: “There is virtually no seismic data on the Freda Turk Ranch.” If there’s no data, we can apply tip number 1 and write, “There is no seismic data on the Freda Turk Ranch.” But if there’s some data, it’s better to specify: “There were two seismic surveys completed 22 years ago on only a portion of the Freda Turk Ranch.”

So be somewhat bold when you write about facts, and you’ll generally be more credible.

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  1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 938 (3d ed. 2011).
  2. Gerald Lebovits, The Worst Mistakes in Legal Writing, Part 4, N.Y. State B. Assoc. J. 60, 63 (June 2018).
  3. Steven D. Stark, Writing to Win: The Legal Writer 45, 46 (2d ed. 2012).

The New Greenbook

Texas Rules of Form (14th ed. 2018). Key takeaways:

  • All courts of appeals are cited as Tex. App.
  • No publisher-date parenthetical for statutes currently in force

A new edition of Texas Rules of Form—The Greenbook—just came out in August. The 14th edition has some changes you’ll want to know about if you cite Texas authorities. I summarize the key changes below. But first, why change The Greenbook?

The Texas Law Review editors in charge of the 14th edition were determined to improve The Greenbook and to address concerns raised by practicing lawyers, law librarians, and legal educators. So they created an extensive online survey that asked about nearly every citation convention in the manual; the survey also solicited suggestions for improvement. They received hundreds of responses and ultimately made several changes intended to improve the manual. Here are the main changes.

Layout upgrade

The first thing you’ll notice is the look of the text, which I consider an improvement. The 14th edition uses a contrasting font for major headings and examples and places rule numbers in the left margin. These design elements make the text easier to read and easier to skim.

Tex. Civ. App. goes away

For all intermediate appellate court cases, the correct abbreviation for the court is now Tex. App. because the 14th edition has abandoned Tex. Civ. App. See Rule 4.2. In case you’d forgotten: before September 1, 1981, Texas’s intermediate appellate courts had no criminal jurisdiction and heard only civil cases. They were known as courts of civil appeals and were abbreviated Tex. Civ. App. After these courts gained criminal jurisdiction, they became the courts of appeals, and in a full-citation are abbreviated Tex. App. The 14th edition has done away with this distinction, so all courts of appeals are cited as Tex. App.

Old form: Key v. Plant, 500 S.W.2d 233 (Tex. Civ. App.—Austin 1973, writ dism’d)
New form: Key v. Plant, 500 S.W.2d 233 (Tex. App.—Austin 1973, writ dism’d)

Statutory publisher and year disappear

When citing a Texas statute in full form, The Bluebook and previous Greenbook editions require you to include a parenthetical containing the publisher (West) and the date (the copyright year of the print volume in which the statute appears). But the 14th edition does away with that requirement. See Rules 10.1 and 10.2. For statutes currently in force, the 14th edition drops the publisher-date parenthetical.

This change was probably motivated in part by feedback The Greenbook’s editors received on their survey. But I’ll bet it was equally motivated by their own headaches in hunting down the Vernon’s print volume to find the right date. This change is eminently wise and is one my legal-writing colleagues and I have been hoping would come to pass. Here’s what it looks like:

Old form: Tex. Tax Code Ann. § 26.06(a) (West 2014)
New form: Tex. Tax Code Ann. § 26.06(a)

Now, if we could just get The Bluebook editors to be similarly sensible.

Noting adopted opinions of the Commission of Appeals

Fully adopted opinions of the Texas Commission of Appeals were formerly cited as if they were originally Texas Supreme Court opinions, like this:

Old form: Cheney v. Coffey, 114 S.W.2d 533 (Tex. 1938)

But the 14th edition in Rule 5.2.2 now requires that the adoption be indicated in the court-date parenthetical, like this:

New form: Cheney v. Coffey, 114 S.W.2d 533 (Tex. [Comm’n Op.] 1938)

This is another sensible change. Ultimately, I like the new Greenbook, and I approve of the editors’ changes. Here’s hoping you’ll approve, too.

Texting and Legal Writing: Survey Results

Althoughh 86 responses is not a large number, the results are interesting and align with what I would expect.

1. Broadly speaking, what type of legal practice are you engaged in?
Litigation 62.79% 54
Transactions 13.95% 12
General practice 2.33% 2
Administrative law 9.30% 8
Other 11.63% 10
Total 100% 86

2. In a professional capacity, how much do you use texting (or something comparable to texting but not email)?
Heavily 9.30% 8
Moderately 20.93% 18
Rarely 60.47% 52
Never 9.30% 8
Total 100% 86

3. In a professional capacity, do you text mostly colleagues, opposing lawyers, or clients?
Mostly colleagues 60.47% 52
Mostly opposing lawyers 0.00% 0
Mostly clients 3.49% 3
Mostly colleagues and opposing lawyers 4.65% 4
Mostly colleagues and clients 19.77% 17
Mostly opposing lawyers and clients 0.00% 0
None of the above or I don’t text in a professional capacity 11.63% 10
Total 100% 86

4. In a professional capacity, do you ever convey legal analysis, legal advice, legal judgment, or comparable content by texting?
Yes, often 3.53% 3
Yes, occasionally 11.76% 10
Yes, rarely 29.41% 25
No, or don’t text in a professional capacity 55.29% 47
Total 100% 86

5. Should a law school first-year legal-writing course address texting?
Yes, cover it thoroughly. 4.65% 4
Yes, cover it briefly. 58.14% 50
No, don’t cover it. 30.23% 26
Don’t have an opinion. 6.98% 6
Total 100% 86