Category Archives: Usage

Intensifiers Part 1: Are You Blatantly Bolstering?

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.

A word that doesn’t persuade: blatant

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:

B

Oops. Mistakes the spellchecker won’t catch.

We all know better than to rely only on a spellchecker, but in case you need more motivation, here are some humorous word mistakes from real documents prepared by real lawyers. (I’ve removed identifying details.)

The staff from Surgical Services, Medical Services, and Pharmacy, as well as all the patients and visitors, observed the bazaar behavior.

  • The word should be bizarre.

This action is nothing more than another viscous attack by Plaintiff against its adversaries’ attorneys.

  • Viscous means thick and sticky in consistency. The writer should use vicious (or maybe should attack the merits instead of describing the plaintiff’s motives).

For all intensive purposes, the Defendant did nothing more than recite the Rules of Evidence at length.

  • The proper phrase here is intents and purposes.

When Chief Kearl was appraised of the situation, he ordered the evacuation, and notice was posted at the property.

  • The right word here is apprised.

Scholars may criticize the Court for failing to apply strict scrutiny in some cases, such as those suggesting unconscious racism, but they do not hone in on the cost of deploying it.

  • The long-standing and preferred phrase here is home in on.*

*The original phrase (home in) comes from the following meaning of home: “to return home” (like a homing pigeon) or to “be guided toward a destination or target.”1 It’s easy to see why hone, meaning “to sharpen”2 seems to make sense, but two prominent word-usage experts insist the phrase should be home in:

Steven Pinker, The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century 274 (2014).

Bryan A. Garner, Garner’s Dictionary of Legal Usage 412 (3d ed. 2011).

_____

1. The Oxford Dictionary and Thesaurus: American Edition 701 (1996).

2. Id. at 703.

More getting the words right

Could you do better than these lawyers did? Here are four more confused and misused words, along with explanations. For each, the incorrect example is from a real legal document (names have been changed).

just deserts / just desserts
Putting the defendant to death to avenge two killings that he did not commit and had no intention of committing does not contribute to the retributive end of ensuring that the criminal gets his just desserts.

This error might be simply a spelling mistake or a typographical error, but this incorrect usage is fairly common. The correct phrase for getting what you rightly deserve is just deserts with one s and has nothing to do with a post-meal treat. The word desert here is a little-used noun form of deserve.

prescribe / proscribe
Of the total offering proceeds deposited into the Escrow Account, 10% may be released to the Company prior to an offering in which investors reconfirm their investment in accordance with procedures proscribed by Rule 419.

The right word here is the past tense of prescribe, which means to require or authoritatively direct. Proscribe means to prohibit. A procedure could be proscribed by rule or prescribed by rule, but the meanings are distinct.

step foot / set foot
Most jurors will have seen PowerPoint presentations before they step foot in the courtroom.

The proper phrase here is set foot. Granted, the phrase step foot has some common-sense appeal: we takes steps with our feet. But do you step your feet? No. You take steps, and what you’re doing when you take steps is picking your foot up and setting your foot down or in.
That’s my appeal to logic. Here’s my appeal to authority—one of several I found. “The traditional expression is not step foot but set foot.” Paul Brians, Common Errors in English Usage 218 (2d ed. 2009).

tack / tact
The plaintiff believes Porterfield took the wrong tact by refusing to settle.

The correct word here is tack. Tact means sensitivity or skill in dealing with delicate situations. The correct word, tack, means a course or a change in course and is a sailing term, used here metaphorically.

Getting the words right

Legal writing requires precision, and precision requires the right word. Correct word use or “usage,” aids clarity and enhances credibility. With those goals in mind, I offer these confused and misused words, along with explanations. For each, I present an example of incorrect usage from a real legal document (names have been changed).

compliment / complement
The firm considers this team approach a benefit to the client as Jacobson and Gonzalez compliment each other, constantly reviewing and discussing issues.

Although it’s possible that Jacobson and Gonzalez praise (compliment) each other, the word here should be complement, meaning to complete or to go together well.

discreet / discrete
This mandamus proceeding presents a chance for the court to hold that a party cannot avoid the effect of Rule 292 by seeking separate trials of discreet issues that constitute a single cause of action.

Discreet means tactful and circumspect. The correct word here is discrete, meaning individually distinct. These two words can be difficult to keep straight, so to help me remember them, I use this memory aid: In discrete, the two e’s are separated by the t. They’re distinct.

historic / historical
These costs will be subject to reconciliation as reconcilable fuel costs on an historic basis.

The word historic means famous and significant: Passage of the Civil Rights Act was a historic event. The proper word here is historical, which means relating to history or occurring in the past.

But what’s the proper article? Should we use an historical or a historical? The best current guidance is that historical and other words beginning with h, like hereditary and humble, take the article an only if you do not aspirate the h. In other words, use an only if you pronounce the words as if there were no h: istorical, ereditary, umble. And the best current guidance on that is to aspirate the h. So write a historical basis, a hereditary trait, a humble person.

More next week.