The Pitfalls of Sentence Adverbs in Legal Writing

Confused college student 300x199 The Pitfalls of Sentence Adverbs in Legal Writing

One way lawyers attract snarks — readers who aren’t shy about pointing out grammar and usage blunders — is by not learning how to properly use sentence adverbs.

It’s of course possible to memorize the rules that govern sentence adverbs, including how to avoid the nonstandard sentence adverbs that cause the most trouble.

But although good legal writers have learned how to properly use sentence adverbs, you’ll rarely find them in their legal writing. Why is that?

Good legal writers avoid sentence adverbs because they’ve learned that they often reveal a writer’s sentiments or biases, which distract readers and paradoxically weaken the ideas the writer is trying to convey.

What Are Sentence Adverbs?

Garner’s Modern American Usage defines a sentence adverb as a word that qualifies “an entire statement rather than a single word in the sentence.” Writers often use sentence adverbs to express their sentiments, feelings, emotions, or biases — e.g., “Regrettably, she could not attend class,” or “Frankly, my dear, I don’t give a damn.”

Most sentence adverbs are benign. But since the 1960s, the nonstandard use of two sentence adverbs — hopefully and thankfully — has caused a rift among the grammar and usage authorities.

Nonstandard Sentence Adverbs Are Abominations!

In The New Fowler’s Modern English Usage, Robert Burchfield recounts that an “unofficial war against certain uses of adverbs ending in -ly broke out in the late 1960s,” and that the most pitched battles have been over the nonstandard use of hopefully and thankfully.

As Bryan Garner explains, hopefully properly means in a hopeful manner. He notes that if a writer uses hopefully to mean I hope or It’s hoped, that nonstandard usage (a) erodes the traditional meaning of the word; (b) can result in ambiguity (“My relatives will be leaving soon hopefully.”); and (c) can nonsensically ascribe human emotions to a nonperson (“Hopefully, it won’t snow tomorrow.”).

Thankfully properly means in a manner expressing thanks; gratefully. But over time writers began using thankfully to mean thank goodness or I’m thankful that. If a writer is thankful, the purists insist, the writer should say I’m thankful that, fortunately, or thank goodness instead of thankfully.

The prescriptive Garner isn’t alone in condemning the nonstandard use of hopefully and thankfully:

  • Wilson Follett, Modern American Usage: The nonstandard use of hopefully is “un-English and eccentric; it is to be hoped is the natural way to express what is meant. [Hopefully] appeals to speakers and writers who do not think about what they are saying . . . .”
  • Theodore M. Bernstein, The Careful WriterHopefully is a solecism, if used for I hope that.
  • Barbara Wallraff, Word Court: Hoping that the nonstandard use of hopefully won’t be generally accepted until she’s “an old, old woman.”
  • Robert W. Burchfield, The New Fowler’s Modern English Usage: The nonstandard use of thankfully “has not attracted the same level of criticism as . . . hopefully, but it is still too raw to be given general acceptance as part of the standard language.’”

Purists, Lighten Up!

Despite their fussing, many purists have conceded that they’ve lost the war over nonstandard sentence adverbs.

For instance, the reliably prescriptive Patricia O’Conner, in Origins of the Specious, says that writers shouldn’t fret about using hopefully to mean I hope that because hopefully “has long since earned its right to be a sentence adverb. It’s so widely accepted because no other word does the job quite as well.’”

In 1979, the late William Safire — a self-described language maven — devoted a New York Times column to announce that he had broke rank with his doctrinaire colleagues by accepting the nonstandard use of hopefully. Safire explained that he had come to accept the nonstandard use of hopefully not because he accepted loose usage standards, but because he “embrace[d] time-tested and readily understood usage.”

The style manuals, though, have hedged their bets. The Associated Press Stylebook (2012) doesn’t take a position on thankfully; however, in April 2012 it reversed its position on hopefully, and now approves its nonstandard use. The Chicago Manual of Style (16th ed.) rejects the nonstandard use of thankfully. But it concedes that the nonstandard use of hopefully “seems here to stay,” while hedging that “many careful writers deplore the new meaning.”

Sentence Adverbs Don’t Enhance Legal Writing

Given the smoldering controversy over hopefully and thankfully, careful legal writers avoid them altogether because even if they use them correctly, they will alienate or confuse certain readers.

But careful legal writers also avoid all sentence adverbs that express a personal sentiment or bias because how a lawyer feels about a factual or legal contention is irrelevant. Consider this sentence from a hypothetical brief: “Surprisingly, the court considered extrinsic evidence when interpreting the contract.”

By qualifying the sentence with Surprisingly, the lawyer wants the judge to know that he was surprised that the court considered extrinsic evidence when interpreting the contract. But the judge reading the lawyer’s brief doesn’t care a whit about whether the lawyer was surprised that the court considered extrinsic evidence; the judge cares only that the court considered it, and wants to know how that ruling affects the case before him.

Despite the lawyer’s good intentions, Surprisingly adds nothing but distracting clutter.

Convey Your Emotions Through Your Writing, Not Sentence Adverbs 

I’m aware that the primer above about the controversy swirling over the nonstandard use of hopefully and thankfully may have left some readers staring at the computer screen, eyes glazed over. Yet there’s value in knowing that the controversy lingers, and that it’s best to avoid becoming embroiled in it.

But there’s no controversy over avoiding most sentence adverbs in legal writing. Instead editorializing your prose with sentence adverbs, convey your feelings and emotions through compelling writing. If you’re writing persuasively, you won’t need a sentence adverb to let your readers know how you feel.

* For more on using adverbs in legal writing, see these other recent Lawyerist columns: Be Safe When Using Flat Adverbs, Eschewing Comfort Words in Legal Writing, and Scrubbing Adverbs From Legal Writing.

(photo: http://www.flickr.com/photos/83633410@N07/7658298768/sizes/m/in/photostream/)

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  • http://williampfeifer.com William Pfeifer

    Excellent article. I agree that adverbs should be kept out of legal briefs most of the time, though I confess to using one on rare occasions when I am confident that the reader would not disagree with the characterization. However, the times it is appropriate are extremely rare. I’ve seen some lawyers make heavy use of adverbs in their briefs, which tells me that the lawyer doesn’t write briefs very often. Nothing makes a brief writer sound more biased than excessive adverbs. Thanks for this interesting article.

  • http://mjmlawllc.com Michael J McNamara

    I’m glad I took (for me) “the road less traveled” this morning and allowed myself a diversion to read your article. Even though, thankfully, I no longer litigate and therefore have little opportunity to prepare briefs or memoranda, I nonetheless found the article surprisingly refreshing. Hopefully I won’t have need to use the cogent reminders and suggestions in the legal arena in the future but they could be surprisingly helpful in non-legal arenas. (Just having fun. Good article, to be sure.)

  • Andy Mergendahl

    Today I stumbled across an adverb so poorly placed that it seemed like an unintentional sentence adverb:
    A spokesman for Dorsey & Whitney told Minnesota Lawyer that [the] law firm intends to defend the suit, which it believes to be without merit, vigorously.
    The fact that the writer holds a B.A. in English from Yale and a J.D. from U. of Chicago drives home the need for everyone to use caution.

    • http://www.linkedin.com/in/matthewsalzwedel Matthew Salzwedel

      I seems that the writer was trying to avoid a split infinitive—to vigorously defend. But splitting the infinitive here is preferred to placing the modifying adverb nine words after the verb.

      To those who think that writers can’t split infinitives, please don’t respond to this comment before reading this first.

      • Andy Mergendahl

        Skipping the adverb in the first place prevents all sorts of problems. As if anyone would suggest that Dorsey would defend any lawsuit not-vigorously. Tsk.

  • Jeffrey Boak

    I think I want to thank you for freeing me from the tyranny of the no-split-infinitives “rule”. Somewhere along the line I just learned that rule to the point where a split infinitive sets a nerve jangling, so that I noticed the split infinitive repeated in the first and third paragraphs of your article: “how to properly use sentence adverbs”. To my overtrained nerve ending the phrase would be better as “how to use sentence adverbs properly” and I suspect you would not have much quarrel with that usage as an alternative version. The problem with not “splitting” an infinitive comes when it forces the adverb far from the verb, as in the “vigorously defend” example.
    But I wonder if there may be some residual appropriateness to the rule, which I propose by way of an example which removes the “to” so that it is not an infinitive: “I always properly use sentence adverbs” sounds less felicitous to me than “I always use sentence adverbs properly”. Am I quibbling? Is there another reason why this is so? Or am I just yielding to my overtrained infinitive nerve?
    I did once see a sentence in a piece of legal writing (I am sorry I did not save it) which split an infinitive with an entire clause of more than a line of print in length. I thought it was a useful argument in favor of the rule. Of course it is more of an argument for keeping related pieces of the sentence close to each other than for the split infinitive rule.

    • http://www.linkedin.com/in/matthewsalzwedel Matthew Salzwedel

      I try not to split infinitives. But sometimes it’s not possible to do that without mangling the sentence structure. Bryan Garner recently posted a four-part primer on split infinitives in his daily usage tips. You can access those split-infinitive tips by clicking here. Thank you for your thoughtful comments.

  • Jeffrey Boak

    Thank you Matthew. I can moderate my aversion to split infinitives and follow your lead on not insisting on it. Oddly enough I had a Non-Disclosure Agreement to review today which gave me a chance to practice:

    “Except as permitted hereunder, no party will, [and] each party will advise its respective Representatives not to, without the prior written consent of the other party hereto, disclose to any third party the fact that Confidential Information has been made available . . ..” The bracketed “and” must have been omitted.

    My rewrite:
    “Except as permitted hereunder, without the prior written consent of the other party hereto, no party will, and each party will advise its respective Representatives not to, disclose to any third party the fact that Confidential Information has been made available . . ..”

    Thanks again,

    Jeff

  • Brian

    One of my last steps before filing a brief is to search for all instances of “ly” in my brief. If I see I’ve used words like “clearly”, I may have a problem. I try to remove many of these “ly” words because they make legal writing sound too strident, bordering on shrill.

  • http://McDowlaw.com/ Thomas F. McDow

    Regrettably, the article was not helpful because I was so distracted by the split infinitives in the first few paragraphs. I make many decisions based on shallow and incomplete facts such as table manners, splitting or not splitting infinitives, using prepositions with no objects, facial hair, or wearing a baseball cap backwards. I tell my children and my legal mentees that these things will not matter to most audiences but may offend curmudgeons and that I am definitely a curmudgeon.

    • http://www.linkedin.com/in/matthewsalzwedel Matthew Salzwedel

      We addressed the split-infinitive issue in the comments above. English isn’t derived from Latin, so I don’t play by its rules. See Patricia O’Conner, Origins of the Specious 18-20 (2010).