• [ Clearly ] is so overused in legal writing that one has to wonder if it has any meaning left. 2 • Doctrinaire adverbs such as clearly and obviously are perceived as signaling overcompensation for a weak argument. 3 • [ C ] learly lulls legal writers into a false sense that they’ve given substantive, persuasive reasons for a legal conclusion. 4 An entire article could be written on clearly —and has been. 5 Other intensifiers get fair criticism, too: • When most readers read a sentence that begins with something like obviously , undoubtedly, ... and so on, they reflexively think the opposite. 6 • When you cut the intensifier, your phrasing usually gains intensity. 7 • Perhaps it’s counterintuitive, but intensifiers ... tend to weaken prose, not intensify it. 8 USING INTENSIFIERS Is it literally a crime? written by Wayne SchieSS In fact, a recent law review article suggests that overusing intensifiers is bad— 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. 9 The authors allege no causal connection—they couldn’t prove that the intensifiers had lost the cases—but the correlation is interesting. What to do about intensifiers Let’s explore the downsides of intensifiers as we consider what we should do instead. Here are six suggestions. 1. Cut intensifiers. It may be counterintuitive, but intensifiers often weaken prose. A sentence usually gets stronger without the intensifier. Which of these is more forceful? 1a. Clearly, an attorney is not an expert on what a “Doberman” is, 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. 1b. An attorney is not an expert on what a “Doberman” is, 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. For me, the second example is stronger. Dropping intensifiers doesn’t always work, and you can’t completely banish them. Some legal standards require them: clearly erroneous highly offensive egregious harm substantially outweigh A s a legal writer, as a paid persuader, you might be tempted to use intensifiers to bolster your points—to persuade. What’s an intensifier? It’s a “linguistic element used to give emphasis or additional strength to another word or statement.” 1 Examples of intensifiers? Intensifiers can be various parts of speech: adverbs ( clearly ), adjectives ( blatant ), participles ( raving ), and more. For legal writers generally and for brief writers particularly, the most commonly used intensifiers tend to be adverbs ending in -ly : blatantly certainly clearly completely extremely highly obviously undoubtedly wholly But if you consult writing experts, you’ll see that intensifiers get a lot of bad press, and clearly is king: 596 Texas Bar Journal • Jul y /Augus t 2021 texasbar.com
Texas Bar Journal July/August 2021: Page-596
