Eschewing Comfort Words in Legal Writing

Sam Glover recently extolled Bill Clinton’s oratory at the Democratic National Convention. But given the focus of this weekly column, I was more interested in the convention speakers’ grammar and usage bungles.

True, it’s neither new nor notable for a politician to mangle the English language. For example, who can forget George W. Bush’s malapropisms, or President Obama’s teleprompter-induced mispronunciation of Navy corpsman?

But Vice President Biden’s convention speech illustrated the problems comfort words pose to persuasive legal writing—literally.

Joe, I Literally Understand You

In his convention speech, Vice President Biden used literally 10 times to intensify metaphorical claims like: “We now find ourselves at the hinge [sic] of history, and the direction we turn is not figuratively, it’s literally in your hands.”

The Vice President’s repeated misuse of literally set Twitter ablaze with snarky anti-literally comments. And the post-speech commentary was also devastating, though some commentators feigned a minimal defense of the Vice President.

The Vice President’s speechwriters weren’t to blame—the word literally literally didn’t appear in his prepared remarks. In any event, literally is the Vice President’s favorite intensifier, and is no recent verbal tic:

What’s wrong with the word literally? Nothing—when it’s used correctly. The problem with literally is when a speaker or writer substitutes it for figuratively, or uses it to overemphasize a contention.

As Patricia T. O’Conner—a former editor of the New York Times Book Review—writes in Woe is I: The Grammarphobe’s Guide to Better English in Plain English, literate writers don’t substitute literally for figuratively, or use it for overemphasis:

If you want to be absolutely correct, use literally to mean “to the letter” or “word for word.” . . . People often use it loosely in place of figuratively, which means “metaphorically” or “imaginatively.” No one says figuratively, of course, because it doesn’t have enough oomph. . . . A lot of people do it, but beware that if you use literally in a less-than-literal way (Grandma literally exploded), you’ll sound less than literate.

Other usage authorities concur with O’Conner’s view, despite a modicum of dissent:

  • Wilson Follett, Modern American Usage: “Writers are so often besought by rhetoricians not to say literally when what they mean is figuratively that one would expect them to desist in sheer weariness of listening to the injunction. The truth is writers do not listen; and literally continues to be seen as a mere intensive that means practically, almost, all but.”
  • Eric Partridge, Usage & Abusage: “literally, when used, as it often is, as a mere intensive, is a slovenly colloquialism, its only correct use being to characterize exactness to the letter.”
  • William Safire, On Language: “‘Literal’ means ‘actual,’ without exaggeration, no fooling with metaphors. But for more than a century, it has also been misused to mean just the opposite; now, ‘literally’ is reaching a critical mass, when it will become a Humpty Dumpty word, meaning whatever the speaker chooses it to mean.”

Comfort Words Figuratively Kill Persuasive Legal Writing

In two post-convention posts called Actually, Literally, What Your Crutch Word Says About You and A Literal Epidemic of Crutch Words, Jen Doll of The Atlantic Wire corrected identified literally as a “crutch word”:

[T]hose expressions we pepper throughout our language . . . to give us time to think, to accentuate our meaning (even when we do so mistakenly), or just because these are the words that have somehow lodged in our brains and come out on our tongues the most, for whatever reason. Quite often, they do little to add meaning, though. Sometimes we even use them incorrectly. Almost always, we don’t need them at all, which doesn’t mean we won’t persist in using them.

Some of Doll’s crutch words that appear in legal writing are: actually, apparently, as it were, basicallydefinitely, essentially, going forward, in the final analysis, obviously, really, seriously, ultimately, and very.

In legal writing, I call these “comfort words.” They’re words lawyers trot out so they can feel like they’re writing persuasively, but that instead detract from their writing. Consider two of my favorite lawyer comfort words: the sentence adverbs clearly and obviously.

As Bryan Garner points out in Garner’s Modern American Usage (3rd ed.) and The Redbook, A Manual on Legal Style, sentence adverbs like clearly and obviously are “weasel words” that degrade persuasive legal writing:

Exaggerators like [clearly], along with its cousins (obviously, undeniably, undoubtedly, and the like). Often a statement prefaced with one of these words is conclusory, and sometimes even exceedingly dubious. As a result—though some readers don’t consciously realize it—clearly and its ilk are weasel words. . . . .

[Weasel words] may reassure the writer but not the reader. If something is clearly or obviously true, then demonstrate that fact to the reader without resorting to conclusory use of these words.

As Garner notes, lawyers routinely use clearly to emphasize their factual and legal contentions. But when a lawyer feels the need to use clearly to emphasize a contention, the contention is usually not clear, and the added intensifier only alerts the reader to be wary about it.

The same is true for obviously. A lawyer might use obviously to emphasize a desired factual or legal conclusion, and to persuade the reader to agree with it. But if a lawyer claims that a conclusion is obvious, most readers will ask themselves, “If what he says is obvious, why are the parties disputing it?”

Strengthen Your Legal Writing by Cutting Comfort Words

I hesitated to make light of the Vice President’s illiterate use of literally. But as President Obama likes to say, the Vice President’s misuse of literally is teachable moment for lawyers who want to improve their legal writing.

Though it might feel good to use comfort words, try to eschew them. Comfort words like literally, clearly, and obviously alert your reader that what you’re contending isn’t literal, clear, or obvious, and they have the perverse effect of sowing doubt in your reader’s mind about the merit of your arguments.

(photo: http://www.flickr.com/photos/donkeyhotey/7402021338/)