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).