Is it literally a crime?
Written by Wayne Schiess
As 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:
But if you consult writing experts, you’ll see that 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.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
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:
Legal writing entails some qualifying, but good legal writers develop a sense for when they’re appropriately qualifying and when they’re blatantly bolstering.
2. Replace intensifiers.
With some thought, you can delete an intensifier-plus-verb or an intensifier-plus-noun and replace the phrase with a single forceful word. So—
very small -> tiny
very sure -> certain
extremely smart -> brilliant
very large -> massive, sizable
quickly went -> hustled, sped, rushed
highly capable -> accomplished, proficient
completely wrong -> inaccurate, incorrect, mistaken, unsound
Again, develop an editorial sense. Replacements don’t always work; sometimes a single-word option is loaded. If instead of very bad you write terrible or dreadful, you might interject undesired subjectivity or emotion.
3. Specify instead of intensifying.
Intensifiers are often vague. Rather than rely on a vague intensifier, you might use details to emphasize. Here’s a classic example:
3a. It was very hot.
3b. It was 103 degrees in the shade.
Here’s another example. The original uses an intensifier, but the revised version specifies. It also uses two other persuasion techniques: a dash and a sentence that ends with key words:
3c. The transaction at issue obviously did not take place at Eason’s residence.
3d. Lubbock detectives set up a controlled purchase with a cooperating defendant at Jay’s Auto Body. It was there that Eason handed over a bag of methamphetamine—not at Eason’s residence.
As you can see, specifying takes more words, and so, as with all writing, you must exercise editorial judgment. Weigh the longer, specific description against the shorter, vaguer, intensified one.
4. Use a dash instead.
As we saw in the last example, the dash can be an effective persuasive-writing aid. In The Redbook, Bryan Garner calls the dash “a forceful and conspicuous punctuation mark.”10 The dash is flexible—it can replace a comma, a colon, or a semicolon, and a pair of dashes can replace a pair of commas or a pair of parentheses, like this:
4a. Calhoun’s statement (which was false) sought to incriminate Scoville.
4b. Calhoun’s statement, which was false, sought to incriminate Scoville.
4c. Calhoun’s statement—which was false—sought to incriminate Scoville.
In these examples, the inserted text is downplayed with parentheses, is neutral with commas, and is emphasized with dashes. But the dash can emphasize text even when it doesn’t replace other punctuation.
4d. Obviously, no living witness other than Gregory knows exactly what occurred on the occasion in question.
4e. No living witness—other than Gregory—knows exactly what occurred on the occasion in question.
You can also use a single dash to point, and that pointing is emphatic.
4e. No living witness knows exactly what occurred on the occasion in question—no one other than Gregory.
The intensifier literally in particular
I’ve got some bad news about literally, but I’ve got some good news, too. First, let’s be clear: literally means actually, or verbatim. Yet linguists and others who study language agree: In speech, literally has become an all-purpose intensifier like truly or completely. No doubt you’ve heard expressions like these:
The firm is literally printing money.
We literally bombed them for 52 points.
I was so scared, I literally died.
These statements flout the literal meaning of literally, and to some ears they sound comical—or absurd.
In writing, the trend is the same: literally can’t be taken ... literally. According to Garner, the figurative use of literally is “commonplace even among many well-educated people but is still avoided in careful usage.”11 But this commonplace usage, even in writing, isn’t recent.
Charles Dickens used literally nonliterally in Nicholas Nickleby in 1839, and F. Scott Fitzgerald used it in The Great Gatsby in 1925. Neither use was in dialogue.
Dickens: “Lift him out,” said Squeers, after he had literally feasted his eyes, in silence, upon the culprit.12
Fitzgerald: He literally glowed.13
So it isn’t new. Or rare. Merriam-Webster’s Dictionary of English Usage cites many examples from the 1800s and 1900s.14 In fact, Merriam-Webster suggests that using literally in this way is no longer a mistake; rather, it’s mere hyperbole—but careful writers should avoid it for that reason. Lawyers, as careful writers, should heed that advice. That’s the bad news, and there’s not much we can do about it. Words change, language changes, and sometimes they change for the worse.
Now the good news. I wanted to see how lawyers actually use literally, and I decided that my best route was to search in appellate briefs. What I found is that lawyers are holding the line on literally.
I did a search for the word literally in appellate briefs filed in cases before the 3rd Court of Appeals in Austin, the Texas Court of Criminal Appeals, and the Texas Supreme Court. My search returned more than 1,000 hits, and I skimmed dozens of them, ignoring quotations from witnesses or evidence.
I’m happy to report that I couldn’t find any genuinely erroneous uses of literally. Brief writers are using literally when they mean . . . literally. So hurray for these:
“In rejecting a plural use of the term ‘employer,’ the Court of Appeals interpreted the term literally, giving it a singular construction.”
“The Appellants freely admit that if the terms of the contract are interpreted literally, there is no coverage of any kind provided in this contract.”
“An individual need not literally possess an item at all times in order to be legally in possession of it.”
Congratulations, and let’s keep it that way.TBJ
This article originally appeared in the August 2017 Plain Language column in the Michigan Bar Journal. It has been edited and reprinted with permission.
is a senior lecturer at the University of Texas School of Law. He teaches legal writing, legal drafting, and plain English and speaks frequently on those subjects. Schiess has written five books on practical legal-writing skills, including his most recent, Legal Writing Nerd: Be One.