November 15, 2018

Forging New Writing Conventions: A Diplomatic Approach to the War on Adjectives and Adverbs

Perhaps the greatest problem with brief writing is that lawyers start by writing a brief.

We have read hundreds of briefs. So we think we know what a good brief looks and sounds like. That bias impedes us.

Most of what we read is not well written. Professors do not choose cases because they are well written. Westlaw and LexisNexis do not sort cases by writing caliber. And most briefs have mediocre or subpar writing. So our challenge is not mirroring what we spend most of our days reading.

Oddly, writing advice makes writing well harder. We learn writing as a series of rules or convenient lists of “pet peeves” — don’t splint infinitives, avoid the passive voice, never start a sentence with “and,” etc.[1] These rules accomplish their goals in the sense that they avoid egregious errors. But the rules preventing you from writing a horrible brief paradoxically prevent you from writing a great one.

Think For Yourself

Overcoming the impulse to write a formulaic brief requires a unique solution. That solution is more than revising rules. It is rebuilding how you think about writing, what you imagine when you start drafting a brief.

Enter First Principle Thinking. “First principles thinking is the act of boiling a process down to the fundamental parts that you know are true and building up from there.”[2] This concept gained popularity in engineering as a way to innovate.[3] For example, one reporter described Tesla’s chief designer using this concept: “The idea is to avoid thinking by analogy — let’s make this car look like that car, just sort of different or better — and instead deal with problems by stripping them down to the core and working your way up.”[4]

First Principles Thinking can and should apply to brief writing. To start, when trying to write a brief do not think of it as a brief. Think of it as you trying to persuade someone through a written document. Then build from there.

The next series of articles looks at the conventions holding you back. The articles apply First Principles Thinking to the rules limiting your writing. First up, the war on adjectives and adverbs.

Adjectives and Adverbs

If you needed to write a persuasive document, would you start by banning yourself from using whole categories of thousands of words? Of course not. You would, and should, use any words that help. Yet time and again we are told to cut adjectives and adverbs.

Misuses and Concerns

Critics of adjectives and adverbs have good reasons for concern.

The primary concern is the “show don’t tell” principle. Too often briefs assert a factual or legal conclusion without sufficient support. Red flags include sentences that use “clearly” or “obviously” to assert anything is true.[5] Other common violators are “conclusory,” “patently,” “cursory,” “baseless,” “unfounded,” “unsupported,” “frivolous,” “blatant,” and “vague.”[6] Instead of asserting a conclusion, briefs should provide the evidence and let the audience reach the conclusion itself.[7] So under the “show don’t tell” principle a writer replaces “Plaintiff has engaged in dilatory tactics” with “Plaintiff has missed three deadlines for responding to interrogatories.’”[8] And “the defendant brutally, viciously and repeatedly drove an enormous hunting knife into the victim’s chest and then callously left her to bleed to death, slowly and painfully” becomes “the defendant stabbed the victim five times in the chest with a hunting knife and then left her to die.”[9]

Another concern is redundancy. Sometimes briefs couple adjectives and adverbs with a fact. Here’s a simple example: “a gigantic one ton pumpkin won the blue ribbon.”[10] We all know how big pumpkins normally are, so “gigantic” is redundant with “one ton.” If the amount of giganticness is important, include the precise weight. If it is not, then “gigantic” makes the point.

Lastly, readers dislike adjectives and adverbs that mischaracterize the underlying facts by exaggerating or minimizing the truth. Did the defendant really “race home” when he went 56mph in a 55mph zone? Claiming a teacher “repeatedly attempted to sabotage and undermine the principal” goes too far when she only twice asked about budget cuts during faculty meetings. Likewise, stating a defendant got into a “brief scuffle with a bar patron” seems misleading when the defendant broke a bottle over the patron’s head and repeatedly kicked him, breaking six ribs and causing a head wound that needed twenty stiches. The problem here is a combination of the above points. Sometimes the underlying facts, standing alone, make the point. But other times, adjectives and adverbs are useful summaries as long as you choose the right words that do not overstate or understate what happened.[11]

These points are good well-reasoned advice. But none of these concerns warrant an editing manhunt. Just because adjectives and adverbs can be used poorly (as any word can be) does not mean that they always are or that they can never be used effectively.

Using Adjectives and Adverbs Effectively

“Many lawyers lament that legal writing squelches their creativity. It doesn’t need to.”[12] Adjectives and adverbs play critical roles in English; they can play those same critical roles in legal writing too. Take a look.

Example 1

A First Amendment challenge to a conviction for selling videos of animal cruelty did not stop then Solicitor General Elena Kagan from using adjectives and adverbs.

Law enforcement agents purchased several videos from respondent through the mail. The videos contain scenes of savage and bloody dog fights, as well as gruesome footage of pit bulls viciously attacking other animals. Agents searched respondent’s residence pursuant to a warrant and found other videos and dogfighting merchandise, as well as sales records establishing that respondent sold videos to recipients throughout the United States and in foreign countries.

. . .

The videos capture the entire grisly process of the animal’s being crushed to death, and they often show the woman continuing to crush the animal after it has died, until all that is left is a “bloody mass of fur.”[13]

Kagan converts the “show not tell” principle to “show and tell.” Her adjectives and adverbs characterize facts later described. But they are not redundant with the facts, nor are they a blatant appeal to emotion. The legal analysis pivots on a balancing test weighing the government interest against the speech’s expressive value. So these charged words embody the government’s interest: “a societal consensus that, although animals are often used for utilitarian purposes, they are living creatures that should be ‘treated in ways that do not cause them to experience excessive physical pain or suffering.’”[14] The characterizations don’t risk exaggerating the truth. Here, there was no dispute about whether the video content was vile; the dispute was about whether the constitution protected such content.

Example 2

In 2017 the Colorado Attorney General’s office won the Best Brief Award from the National Association of Attorneys General.[15] The winning brief was a Petition For a Writ of Certiorari to the United States Supreme Court. It too used adjectives and adverbs effectively.

Instead, the Tenth Circuit has adopted its own novel approach to the Guarantee Clause. If that approach stands, Colorado will be the first state in the country to be required to prove, to a federal judge’s satisfaction, that it is adequately republican.

. . .

If Guarantee Clause claims are now justiciable, there is no shortage of creative lawyers and academics standing ready to embroil states and federal courts in an endless stream of litigation on questions that, before now, would have been resolved through the political process.

. . .

By drastically shrinking the Raines rule and making it merely an exception to Coleman—rather than vice versa—the Tenth Circuit created a second split, this time with two other federal circuits.

. . .

Whether state legislators are permitted to lure federal courts into disputes like this one is an important question, as the Court recently recognized in Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314. As important as that case is, however, the implications here are even more significant.

The Tenth Circuit based its jurisdiction on the alleged injuries of just three of Colorado’s 100 legislators. This is a significant step beyond the situation the Court faces in Arizona State Legislature, where the entire legislature, acting as an institution with one voice, filed a suit to protect its power to draw election districts.

Whatever the outcome in that case, decisive action by this Court will still be needed. Here, the Tenth Circuit extended legislative standing far beyond the facts of Arizona State Legislature, allowing a tiny minority of the Colorado General Assembly to sue the Governor, who is standing in as a surrogate for the voters who enacted TABOR.[16]

Then-Solicitor General Daniel Domenico, and his team, used adjectives and adverbs selectively and effectively. They often appear in topic or concluding sentences. Notably, far from altering the truth, here they often increase a description’s accuracy: not just shrinking but drastically shrinking, not just a legislature’s act but the entire legislature’s act, not just a minority but a tiny minority. Other times they are fair and shorter characterizations of the facts: “an unpredictable but likely large amount of litigation” becomes an “endless stream of litigation.”

Example 3

Ross Guberman found several briefs using adjectives and adverbs effectively:

Indeed, [Calvin Klein International] was delighted to enjoy the business of Wal-Mart, the biggest discounter of them al.

Sunbeam intentionally played fast and loose with its accounting numbers to hoodwink Wall Street.[17]

Conclusion

When people tell you to strip all the adjectives and adverbs from your brief, what they are really saying is they do not trust your judgment to use adjectives and adverbs effectively. Prove them wrong.

Adverbs and adjectives are where great advocacy lives.


[1] See George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 3-7 (Person Education Inc. 2004) (use tools not rules). See also id.at 149-55 (chapter titled “‘Write the Way You Speak’ and Other Bad Pieces of Advice”).

[2] See James Clear, “First Principles: Elon Musk on the Power of Thinking For Yourself,” https://jamesclear.com/first-principles (last visited February 17, 2018).

[3] See Mayo Oshin, “Elon Musks’ ‘3-Step’ First Principles Thinking: How to Think and Solve Difficult Problems Like a Genius,” The Medium, August 30, 2017, https://medium.com/the-mission/elon-musks-3-step-first-principles-thinking-how-to-think-and-solve-difficult-problems-like-a-ba1e73a9f6c0.

[4] Matthew DeBord, “The secret to how Tesla gets its cars to look absolutely fantastic,” Business Insider, December 29, 2017, http://www.businessinsider.com/how-tesla-designs-cars-to-look-so-good-2017-11/#it-was-holzhausen-not-musk-who-was-the-budding-superstar-back-in-the-late-2000s-1.

[5] See Charles Bird & Webster Kinnaird, “Objective Analysis of Advocacy Preferences and Prevalent Mythologies in One California Appellate Court,” 4 J. App. Prac. & Process 141, 153 (2002) (“Readers notice and are bothered by . . . use of adverbs such as ‘clearly’ and ‘obviously’ in place of logic or authority.”); Roger J. Miner, “Twenty-Five ‘Dos’ for Appellate Brief Writers,” 3 Scribes J. of Legal Writing 19, 21 (1992) (“Eliminate adverbs such as clearly and obviously. If things are so clear or obvious, why do we still have a legal dispute on our hands?”).

[6] “Let nouns and verbs make your argument. Clearly, patently, obviously, literally, and egregiously make your points seem muddled, uncertain, unclear, nervous, and defensive.” Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/articles/five-resolutions-litigators/.

[7] See Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 57-67 (Oxford University Press 2d ed. 2014).

[8] Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/articles/five-resolutions-litigators/.

[9] Daniel Klau, Appealingly Brief: The Little Book of Big Appellate Tips (Or How to Write Persuasive Briefs and Excel at Oral Argument) 41-42 (2015).

[10] See AnneClaire Stapleton, “What it takes to grow a massive prize-winning pumpkin,” CNN, October 7, 2013, http://www.cnn.com/2013/10/07/living/massive-pumpkin-tricks/index.html.

[11] For example, replace “Plaintiff makes numerous amorphous and conclusory arguments” with “Although Plaintiff insists that X, Y is the law.” Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/articles/five-resolutions-litigators/.

[12] Guberman, supra n.7 at 191.

[13] Brief for the United States at 4; 17-18, United States v. Stevens, 559 U.S. 460 (2010) (internal record citations omitted) (underlining added). This example is courtesy of Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/pdf/elena-kagan.pdf.

[14] Id. at 22 (quoting Congressional report).

[15] Erin Lamb, “Colorado Attorney General Cynthia H. Coffman and Solicitor General Frederick Yarger Accept 2015 “Best Brief Award” From the National Association of Attorneys General,” June 18, 2015, https://coag.gov/press-room/press-releases/06-18-15.

[16] Petition For A Writ of Certiorari at 3; 20-21; 29; 31-32 , Hickenlooper v. Kerr, 135 S.Ct. 2927 (2015) (record citations omitted) (underlining added).

[17] Guberman, supra n.7 at 191-99.

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

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