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.

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.

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.

Writing a persuasive document? May I suggest a word to avoid? Avoid the adjective blatant and its adverb form, blatantly. Labeling something as blatant (“offensively conspicuous”) or describing someone as acting blatantly does not persuade. Better to describe the behavior and, if it’s genuinely blatant, its . . . blatancy . . . will be obvious.

Some real examples:

Overstating:

The Appellees’ true motive for proffering this evidence was to inflame the jury with this blatantly irrelevant evidence.

• And yet the trial judge admitted the evidence. Not that trial judges never err, but given that the evidence was admitted, is its irrelevance really “offensively conspicuous”?

Stretching the meaning:

A gate that forces one to exit the car to open and close it is, however, clearly and blatantly an obstruction that interrupts free access.

• Okay, that might clearly be an obstruction (I’ll discuss clearly later), but is it blatantly an obstruction? This use stretches the meaning of blatantly and makes it an all-purpose intensifier (like very), ignoring the “offensive” component of the meaning.

Failing to persuade:

This is a blatant misrepresentation of the evidence in the record. Although portions of Zavala’s safety incident were partially re-enacted, the record reveals multiple differences between the re-enactment and Zavala’s accident, including substantial differences in job status, setting, physical acts performed, and the purpose for performing the acts.

• Try this instead:

“The record shows four key differences between the re-enacted safety incident and Zavala’s accident. Although the re-enactment showed job status A, Zavala’s job status was B. The re-enactment showed setting C, but Zavala’s accident occurred in setting D. The re-enactment showed physical acts W, whereas the accident involved physical acts X. Moreover, the purpose of the acts was Y, yet the accident involved purpose Z.”

• Or this: