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Appellate Practice

Using adverbs recklessly can hurt your appeal and vex the courts

Adverbs can be a boon and a bane to lawyers who argue over the meaning of words such as “knowingly,” “intentionally” and “recklessly” and sprinkle them throughout their briefs.

Indeed, the number of disputes over how to interpret adverbs in criminal statutes has surged since the 1980s, the Wall Street Journal (sub. req.) reports, citing research by Brooklyn Law School professor Lawrence Solan. But losing an argument over statutory construction isn’t the only downside to adverbs.

A 2008 study found that lawyers who use intensifier adverbs in their briefs such as “very,” “obviously,” “clearly,” “absolutely” and “really” are more likely to lose an appeal than lawyers who avoid the words, the story says. There is one exception, though–the adverbs are likely to help the lawyer if the judge likes to use the words, too.

Justice Anthony M. Kennedy has said he doesn’t like to use adverbs in his writing. But Justice Antonin Scalia apparently has no such compunction. He uses phrases such as “blatantly misdescribes,” “most tragically” and “judicially brainstormed,” leading one legal linguist to complain about his “caustic exploitation” of adverbs.

See also:

ABAJournal.com: “Clearly, justices don’t observe ban on the word ‘clearly’ ”