Category Archives: Persuasion

Somewhat Qualified

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).

Introducing quotations

Inviting readers to read, not skip, your quotations

Legal writers often need to use quotations in persuasive documents. Quoting a reliable source adds credibility to your assertions and can relieve the reader of independently checking a source. In this column I’ll discuss a technique for formally introducing quotations that can enhance persuasive force and invite readers to read the quotation—not skip it.

But first, two caveats: (1) Legal writing requires scrupulous honesty and care in quoting; misquoting a source, intentionally or accidentally, harms your credibility. (2) Legal writers should avoid over-quoting; use quotations for crucial legal language or to clinch a key point. Otherwise, paraphrase.

And this post isn’t about incorporating a quotation into your own textual sentence, like these examples:

  • The relevant statute states, “[a]ny taxpayer who paid the sales tax has standing to sue for a refund.” [citation]
  • The relevant statute provides that “[a]ny taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

Instead, I’ll address a formal lead-in to a quotation.

A common and traditional way to introduce a quotation is to use a lead-in statement and a colon, like these:

  • The court stated as follows:
  • The statute provides the following:
  • The hearing officer made the following ruling:

These forms are adequate but average. In their place, I recommend introducing the quotation with what we might call an informative or persuasive lead-in by asserting a point the quotation will prove. So don’t write this:

  • The relevant statute provides authorization as follows: “Any taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

Instead, introduce the quotation by asserting a point the quotation will clinch, like this:

  • The Tax Code affirms Granger’s right to sue for a refund: “Any taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

The technique works for block quotations, too. We all know that readers often skip block quotations. According to Mark Hermann, author of The Curmudgeon’s Guide to Practicing Law, “you must trick the judge into learning the content of the block quotation.”[1] He recommends summarizing the quotation’s substance in the lead-in sentence. And Bryan Garner, in The Winning Brief, offers similar advice: “For every block quotation, supply an informative, eye-catching lead-in.”[2]

So instead of this average lead-in:

  • The State intervened in operating Lincoln County Schools, and the Superintendent thus acted under authority of the Education Code, which states as follows:

The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state superintendent to fill positions of administrators and principals. [citation]

Try this:

  • Once the State intervened in operating Lincoln County Schools, the Education Code granted the Superintendent the right to make personnel decisions for the vacant principal positions:

The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state superintendent to fill positions of administrators and principals. [citation]

The lead-in asserts a point and, to some degree, summarizes the quotation to follow. With this technique, according to Herrmann and Garner, you’ll get two payoffs. First, readers might read the block: the assertive tone of the lead-in invites them to read the quotation to see if you’re right. Second, even if readers skip the block, they still get the key content.

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[1] Mark Herrmann, The Curmudgeon’s Guide to Practicing Law 8 (2006).

[2] Bryan A. Garner, The Winning Brief 501 (3d ed. 2014).

All 12 Tips for Concision

Since July 2015 I’ve been sporadically posting a series of tips for concision in legal writing. I suggested a total twelve, and links to all of them are collected here:

1. Don’t fear possessives.

2. Remove redundancy.

3. Diminish sesquipedalian vocabulary. (Reduce big words.)

4. Cut throat-clearing phrases.

5. Eliminate excessive prepositions.

6. Deflate compound prepositions.

7. Omit needless details.

8. Edit for wordiness.

9. Make independent clauses participial phrases.

10. Use pro-verbs or elide verbs.

11. Assess passive voice.

12. Revise unnecessary nominalizations.

Mastering the dash, Part 2

In Part 1, I said the dash follows few rules and is a flexible mark with many uses. With all those possibilities, how do you decide when to use a dash? Consider two key writing goals: breaks and emphasis.

According to June Casagrande in The Best Punctuation Book, Period, you can use the dash to indicate “breaks in a sentence” or “a change of sentence structure or thought.”[1] The dash signals a new direction, often abruptly, and might replace a heavier transition word:

  • Kaye will sell the yacht. However, the buyer must have financing within 30 days.
  • Kaye will sell the yacht—if the buyer has financing within 30 days.

The period signals a full stop. Here’s a new idea. The semicolon signals a pause; here’s a related idea. The dash signals a break—here’s something important. We saw this in an earlier example:

  • Chen does not object to the fee. She asks that it not be disclosed.
  • Chen does not object to the fee; she asks that it not be disclosed.
  • Chen does not object to the fee—she asks that it not be disclosed.

Dashes emphasize. In The Redbook, Bryan Garner calls the dash “a forceful and conspicuous punctuation mark.”[2] In the earlier example about Calhoun’s statement, the paired parentheses downplay the inserted clause, the paired commas are neutral, but the paired dashes emphasize it.

  • Calhoun’s statement, which was false, blamed the problem on Scoville.
  • Calhoun’s statement (which was false) blamed the problem on Scoville.
  • Calhoun’s statement—which was false—blamed the problem on Scoville.

Writers can also use a single dash to point, and that pointing is emphatic. In the following example, the second version highlights the lack of permission, and it’s all in the dash:

  • Jeffrey deleted the paragraph without checking with his co-author.
  • Jeffrey deleted the paragraph—without checking with his co-author.

As for the myth—I’ve met lawyers and teachers who frown on the dash, saying it’s too informal for legal writing. Some legal-writing teachers won’t allow their students to use it. I disagree. The dash is entirely appropriate for legal writing, especially persuasive legal writing. Yes, overuse might be a problem, so exercise judgment, but you should add the dash to your writing tool kit.

[1] June Casagrande, The Best Punctuation Book, Period 118, 119 (2014).

[2] Bryan A. Garner, The Redbook: A Manual on Legal Style § 1.51 (3d ed. 2013).

Mastering the dash, Part 1

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Let’s get to know the dash. It’s good for breaks and pauses, emphasis and force. In Part 1 I’ll explain how to create the right dash and go over some rules. In Part 2 I’ll discuss several good uses and try to dispel a myth.

The dash discussed here is the em dash. It’s a long, horizontal punctuation mark—like these—and should be distinguished from the en dash – like these – a shorter mark with different uses. On a typewriter, you create a dash by typing two hyphens with spaces on either side. Are you using a typewriter? Then don’t use two hyphens. “Use real dashes,” says Matthew Butterick in Typography for Lawyers.

To get the em dash in Word, type two hyphens, leaving no space on either side. Word should automatically convert that into an em dash. If you put a space before and after the hyphens, Word will convert that into an en dash, which is the wrong mark. (Yet so many writers use spaces that the shorter en dash is ubiquitous despite being technically wrong.)

You can also insert an em dash directly with the Insert Symbols function or with keystrokes: alt + 0151. On a Mac, hold down the Shift and Option keys and press the Minus key. Note that copying and pasting sometimes converts an em dash to a hyphen—a glitch you’ll want to catch when you proofread.

Rules? The dash obeys few rules. It’s flexible. You can use it in place of commas, colons, parentheses, periods, and semicolons.

In place of a comma:

  • It was the seller who balked, not the buyer.
  • It was the seller who balked—not the buyer.

In place of a colon:

  • The courts assess three factors: purpose, type, and effect.
  • The courts assess three factors—purpose, type, and effect.

A pair of dashes in place of a pair of commas or parentheses:

  • Calhoun’s statement, which was false, blamed the problem on Scoville.
  • Calhoun’s statement (which was false) blamed the problem on Scoville.
  • Calhoun’s statement—which was false—blamed the problem on Scoville.

The dash can even replace a period or semicolon, separating independent clauses:

  • Chen does not object to the fee. She asks that it not be disclosed.
  • Chen does not object to the fee; she asks that it not be disclosed.
  • Chen does not object to the fee—she asks that it not be disclosed.

With all these possibilities, how do you decide when to use a dash?

That’s Part 2.

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