Don’t overuse qualifiers in stating facts. Key takeaways:
- qualifiers can weaken factual statements
- dropping the qualifier and specifying instead often improves 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:
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.” 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.”
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.” 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.
- Bryan A. Garner, Garner’s Dictionary of Legal Usage 938 (3d ed. 2011).
- Gerald Lebovits, The Worst Mistakes in Legal Writing, Part 4, N.Y. State B. Assoc. J. 60, 63 (June 2018).
- Steven D. Stark, Writing to Win: The Legal Writer 45, 46 (2d ed. 2012).
Lawyers are professional writers, so they’re professional editors, too. Here are some editing tips I’ve gleaned from experience and the sources cited at the bottom. Send your tips to firstname.lastname@example.org
- Admit that bad writing becomes good and good writing becomes great only through editing.
- Start composing (writing the first draft) earlier, without waiting to be finished with the research.
- Compose freely—avoid editing while composing.
- Build in ample time for editing—some suggest half the time on the project—and get in the habit of leaving a lot of time for editing.
- Use multiple techniques to trick your mind into not being familiar with your own writing: read aloud, edit from the end to the beginning, edit from the middle to the end and then from the beginning to the middle, edit one line (as opposed to sentence) at a time.
- Do some editing in print and some on a screen.
- When editing on a screen, alter the line breaks (squeeze in the margins) or enlarge the display size to make the text look less familiar.
- Take multiple passes and avoid trying to edit for everything at once: devote each editorial pass to a particular editing task, find or create an approach to editing in stages or passes, be sure the passes address both large-scale and small-scale matters, be sure the passes address both professional legal English prose and legal authority (and citations if any).
- Employ an editing checklist—a list of mistakes you make, of required parts the document needs, and of formatting and other matters to check: find a recommended editing checklist or create your own. As you master certain techniques and eliminate those glitches from your drafts, delete them, move on to other matters, and add them to your evolving checklist.
- Use the Search or Find function to search the document for every instance of various items, verifying that each is correct: search for every apostrophe, search for every quotation mark, search for every colon, search for every semicolon, search for every instance of –ly (thereby locating many adverbs and giving yourself a chance to eliminate weak adverbs). Add searches that are tailored to your writing or to the particular document.
- Employ the spell-checker effectively: learn its settings and set them to your preferences.
- Employ the grammar-checker wisely: change its settings and identify the things it’s good at detecting and the things it’s terrible at.
- Ask a trusted colleague to edit the document.
- Use a commercial application to help you edit.
Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer
Michael H. Frost & Paul A. Bateman, Writing Deskbook for Administrative Judges
Bryan A. Garner, Garner’s Dictionary of Legal Usage
Debra Hart May, Proofreading, Plain and Simple
Megan McAlpin, Beyond the First Draft
Wayne Schiess & Elana Einhorn, The Five-Pass Approach to Appellate Editing, 27 Appellate Advocate 41 (2015)
Lawyers are editors, and not only of our own work—we often edit others’ writing. An edit that improves the writing is great, but a good edit can also improve the writer. So lawyers are teachers, too. How are we doing? It’s mixed. In this post I’ll mention three recurring problems and offer some suggestions.
“I get no writing feedback.”
Lack of feedback is understandable. Lawyers are busy, and getting the document done is more important than helping junior lawyers improve their writing. And junior lawyers should be responsible for their own improvement, right? Yet without even minimal feedback, it’s hard to improve.
There are no easy solutions to this recurring problem. As Bryan Garner noted, “The modern … well-managed law firm has more work to do than it can complete in a given time.” Sometimes what’s lost is teaching—including teaching writing. So granting that it will be difficult, I still urge junior lawyers to ask for feedback, and senior lawyers to try to give some.
“The writing feedback I get is wrong.”
I occasionally hear this from former students, and I’ve even written about it. It’s great that the senior lawyer is editing the document and offering feedback, but sometimes the junior lawyer disagrees with the edits or believes they’re bad writing. What to do?
Junior lawyers, always to do your best to meet your supervisor’s expectations, even if you disagree with them. I often quote legal-writing teacher Ken Bresler: “I teach legal writing. I don’t run a job-placement service. Write how they want you to write.”
And before you assert that your boss is mistaken, look it up. Both younger and older lawyers often rely on rules and conventions they vaguely recall from high school or college. But there are several authoritative, comprehensive legal-style references available. Here are three:
- Bryan A. Garner, The Redbook: A Manual on Legal Style (3d ed. 2013)
- Joan Ames Magat, The Lawyer’s Editing Manual (2008)
- Deborah E. Bouchoux, Aspen Handbook for Legal Writers (3d ed. 2013).
Of course, in legal writing, a senior lawyer’s practical knowledge and insights can outweigh a technically correct writing choice, but consulting an authoritative reference promotes consistency and raises everyone’s writing IQ.
“The writing feedback I get is useless or mean.”
Given how busy lawyers are, it’s not surprising that editorial feedback is sometimes vague or unkind. Yes, junior lawyers should develop a thick skin and try to learn from the comments. But senior lawyers can also be more helpful. Three suggestions.
First, sending back a track-changes version in which you rewrote the document the way you like is better than no feedback at all, but not much. If that’s all you have time for, fine, but some level of feedback is desirable. (For a junior lawyer who isn’t getting feedback, finding the senior lawyer’s final version and preparing your own track-changes document is one way to learn.)
Second, if you give feedback, try to avoid cryptic or vague comments and harsh or personal criticism. Cryptic comments are often abbreviations or vague descriptors: “nom.,” “BB,” “I can’t follow this,” or “Needs work.” They’re usually unhelpful. Harsh criticisms are often labels: “Terrible!” Or they address the writer, not the work, often assuming the writer is sloppy or lazy, not merely inexperienced: “Is this the best you can do?” or “Next time, run a spell check.”
Third, if you can make the time, try these best practices for writing feedback as identified by Anne Enquist:
- Provide at least some positive comments so the writer knows what techniques work and can repeat them.
- Write comments that not only identify concerns but also suggest ways to address them.
- If you have time, provide a short summary of the strengths and weaknesses in addition to line-by-line comments.
Being an editor and a teacher takes effort—and time, which lawyers don’t always have. But try these tips to avoid the biggest problems.
- Bryan A. Garner, Garner’s Dictionary of Legal Usage 533 (3d ed. 2011).
- Wayne Schiess, What to Do When a Student Says, “My Boss Won’t Let Me Write Like That,” 11 Perspectives: Teaching Leg. Res. & Writing 113 (Spring 2003).
- Ken Bresler, Pursuant to Partners’ Directive, I Learned to Obfuscate, 7 Scribes J. Legal Writing 29, 30 (2000).
- Anne Enquist, Critiquing Law Student’s Writing: What the Students Say Is Effective, 2 Legal Writing: J. Legal Writing Inst. 145 (1996).
Since July 2015 I’ve been sporadically posting a series of tips for concision in legal writing. I suggested a total of twelve, and links to all of them are collected here:
11. Assess passive voice.