Appellate Law

Clearly, a Reason to Avoid Using Intensifiers

By D. Todd Smith

Faced with an opposing brief that preceding a conclusion with the word "clearly," my first supervising partner sometimes responded with this quote from Texas Supreme Court Justice Nathan Hecht:

I have learned in more than a decade of judging that what is claimed to be clear seldom is.

Nathan L. Hecht, Foreword to W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1041, 1043 (1993).

I always thought this was an effective—if pithy—way of highlighting the weakness in reasoning that relying on such intensifiers tends to reveal.  Now, a legal-writing professor and a statistics professor have teamed up to show a correlation between using intensifiers in appellate briefs and bad appellate outcomes.   It's not a causal relationship, mind you, but the study provides another reason to avoid lapsing into "an intensifier-rich mode of writing."

Thanks to Rob Gilbreath for bringing this article to my attention.

Full post as published by Texas Appellate Law Blog on July 07, 2008 (boomark / email).