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What can Ernest Hemingway teach you about legal writing?

By Greg May

In a Wall Street Journal article last month, “Why Adverbs, Maligned by Many, Flourish in the American Legal System,” Ernest Hemingway is cited twice as an example of an effective writer who eschewed adverbs. This colorful start to the article expresses the view of many lawyers:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: ?The adverb is not your friend.?

In large part, the article explains the need for adverbs in legislation and notes the significance they can have in the construction of a statute.

Bryan Garner, editor of Black?s Law Dictionary, is regarded by scholars as the dean of legal prose. He says legislators and adverbs need one another.

***

Says Mr. Garner: ?No legislative drafter ever says: Did I pull my readers in? That?s something Stephen King has to ask.?

Ah, back to that age-old rule: know your audience when you are writing. (More on what the article teaches about that at the product liability blog Abnormal Use.) The article moves on to the more contentious issue of the use of adverbs in persuasive writing and the use of adverbs by judges:

?When you?re drafting an opinion, it?s just so tempting to use an adverb, so satisfying. It says exactly what you mean,? Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals, said. ?I don?t think any of us can follow the rule as religiously as Hemingway did. I wish I could.?

Unlike his peers, Justice Antonin Scalia is unapologetic. One legal linguist marveled at his ?caustic exploitation? of adverbs in his opinions, which crackle with phrases like ?blatantly misdescribes,? ?most tragically? and ?judicially brainstormed.?

Unsurprisingly, the participants in a LinkedIn thread that started with a reference to the article tended to concentrate on the use of adverbs in persuasive writing, and expressed their overall disdain for adverb use. There was general agreement that adverbs like “clearly,” “obviously,” and the like signaled weak arguments. The article offers statistical support for that view, with a caveat (again, relevant to the “know your audience” maxim):

According to a 2008 study by two scholars at the University of Oregon School of Law and Brigham Young University, lawyers who stuff so-call intensifier adverbs in their legal briefs?words such as ?very,? ?obviously,? ?clearly,? ?absolutely? and ?really??are more likely to lose an appeal in court than attorneys who avoid those ?weasel words,? as Mr. Garner described them. But notably, the study found that the habit can actually work in a lawyer?s favor if the presiding judge really likes to use those adverbs, too.

Which leads me back to Hemingway. In the LinkedIn thread, California attorney Steven Finell praises Hemingway for more than just adverb avoidance, crediting him for precise writing without adverbs and using adverbs effectively: “Lawyers can learn a lot from reading Hemingway: short sentences, powerful verbs and nouns–and descriptive adverbs and adjectives.” Finell’s post provides great examples of precise adverb-free writing.

I’ve never read Hemingway. I might give him a try.

Full post as published by The California Blog of Appeal on November 03, 2014 (boomark / email).