Law’s Love of Adverbs

Ah—the maligned adverb. Many writers eschew them. Stephen King, for example, seems to hate them. In his book, On Writing: A Memoir of the Craft, he writes, “I believe the road to hell is paved with adverbs[.]” He likens them to dandelions: one of them might look pretty, but they’re actually weeds that can and do take over your lawn (or, in the case of adverbs, your writing).

What is an adverb? Generally speaking, it’s a word that ends in –ly (though not always; scroll down here to see adverbs as emphasizers, amplifiers, and downtoners—all words we lawyers like to use). The purpose of an adverb is to modify verbs, adjectives or other adverbs. Getting rid of adverbs can, in fact, make our writing better because we are forced to choose stronger or more precise words. For example, I could write, Losing that case made me very angry. In that sentence, the adverb is “very” and it modifies “angry.” I wasn’t just angry, I was very angry. But wouldn’t it be more vivid, more precise, if I instead wrote, Losing that case made me livid?

That being said, there are good reasons to use adverbs, especially in legal writing of all kinds—memos, briefs, judicial opinions, statutes, rules, and regulations. Why? The law operates in the grey areas. A legal writer who is asked to give an objective opinion on whether a person might be liable for a particular claim can sometimes do no better than giving a qualified answer, like Martin is probably not liable. Other times, a legal writer will throw in adverbs to emphasize her point in a brief: Plaintiff is clearly entitled to relief. In judicial opinions, judges may want or need the wiggle room that an adverb can provide. A legal rule that comes from case law might allow certain conduct so long as it does not substantially burden certain people, for example. The question that lawyers will argue about in future cases, then, is what it means to substantially burden, and in so arguing, those lawyers will likely rely on tons of adverbs.

See here for a delightful article on why adverbs seem to be here to stay—at least for lawyers. Obviously, you’ll find it really enlightening.

 

Continue ReadingLaw’s Love of Adverbs

Justice Ginsburg on Empowering Oral Argument

Justice GinsburgAn interview with Justice Ginsburg appears in the October issue of Elle magazine.  In the article, Justice Ginsburg describes her first oral argument before the United States Supreme Court.  Any advocate could relate to her story:

I had, I think, 12 minutes, or something like that, of argument.  I was very nervous.  In those days, the court sat from 10 to 12, and 1 to 3.  It was an afternoon argument.  I didn’t dare eat lunch.  There were many butterflies in my stomach.  I had a very well-prepared opening sentence I had memorized.  Looking at them, I thought, I’m talking to the most important court in the land, and they have to listen to me and that’s my captive audience.

Justice Ginsburg argued on behalf of Sharon Frontiero in Frontiero v. Richardson.  In that case the Court held that the United States military could not differentiate on the basis of gender in how it provides benefits to service members’ families.

In the interview, Justice Ginsburg recounts that as she spoke before the Court during oral argument her confidence grew:

I felt a sense of empowerment because I knew so much more about the case, the issue, than they did.  So I relied on myself as kind of a teacher to get them to think about gender.

 

Continue ReadingJustice Ginsburg on Empowering Oral Argument

Daubert Has “Teeth” (and a Pulse)

The first published case on Wisconsin’s (relatively) new rule on expert opinion testimony has emerged at long last. In 2011 the legislature replaced Wisconsin’s decade’s-old approach with the federal “Daubert rule,” a rule rejected by state appellate courts on several occasions. The old rule left disagreements among experts mostly to the trier of fact, provided the witnesses had suitable specialized knowledge that could assist in fact finding. The current Daubert rule unctuously anoints trial judges as “gatekeepers” responsible for ensuring that only “reliable” expert opinions are put before juries. Many critics, me included, thought the old rule served the same purpose quite well. In State v. Giese, 2014 WI App 92, the court of appeals wisely signals that the new rule is mostly compatible with the older approach. 

Continue ReadingDaubert Has “Teeth” (and a Pulse)