When drafting a brief or other submissions for court or arbitration, do you use words such as clearly, erroneously, etc. to emphasize certain points? Our managing partner says that we should, but all of the writing guides for litigators that I've read repeats the mantra "show, don't tell" and explain that most judges dread such words.

I know that the politically correct thing to do here is to do whatever the managing partner wants me to do, but I just wanted to ask for other ppl's opinion.

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Clearly, no. Erroneously, yes

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Correct answer

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NO! I yell at my juniors and paralegals for this. If it was “clear” or “obvious,” or whatever other similar word you want to use, then we wouldn’t be in litigation about it. If it’s “clear,” then SHOW the court with exhibits.

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One of my more respected partners cuts almost all adverbs when editing briefs. Think of a more descriptive verb instead (eg, change “moved quickly” to “hurried” “bolted” or “scampered”)

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Know your judge. Some judges need to have things spelled out for them. But don't go nuts with them. Use them for emphasis. If you're using them every other sentence they lose their meaning.

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Instead of using adverbs like clearly, I use terms like “abso-effing-lutely.” The partner always removes them, and the writing is as it should be.

likehelpfulfunny

I use them, I just try not to go overboard.

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I’m currently clerking and honestly when I see words like “clearly” in briefing, it generally signals to me that a key portion of the argument is not explained well or at all. I don’t think this is always intentional because something may seem very clear to the author, but may not be clear to the court. I find that telling myself I can’t use the word “clearly” really forces me to explain my reasoning - it can be frustrating sometimes because something seems so obvious, but if I find myself typing or wanting to type “clearly,” it’s a good signal to me that I need to explain something better.

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Not really. If I’m going to use extra words for no good reason it’s going to be reminding the court of how much the other side sucks with citations to the record.

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Depends on the partner. I have no idea what my own writing style is because I just write according to whatever the partner I’m working for wants.

I will say I’ve both won and lost using words like this in the brief/submission. I feel after the writing reaches a certain point of competence, a judge is going to do what s/he thinks the right answer is no matter if you used 5 clearlys or not.

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I think okay to use only when it really is clear (and don’t go overboard)—when I was a clerk “clearly” only annoyed me when the litigant was pointing to something that really was quite ambiguous. It betrayed weakness.

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I generally only use terms like that when OC makes a blatant error that I can back up with exhibits or direct quotes. Even then, over use can hurt.

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I don’t use “clear” or “obvious” but I do use snarky language to refer to the other side’s case like “cherry-picked” for an out of context quote

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Not all “ly” words are created equal, but “clearly” is always a red flag.

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I usually write aggressively and then Tone it down before filing. Save the snark and adverbs for oral argument.

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Conservatively.

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They’re great words to use if something truly is as you say it is and it’s worth emphasis - if you want to use clearly for example you need to earn its use by spelling out everything the decision maker needs to see it your way.

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No.

It's OK if it's a standard of review, "The lower court's finding that X was clearly erroneous because reasons."

I try to avoid them. It sounds more reasonable when you demonstrate with facts/law and let the court decide.

I try to stay away from adverbs….

Never use them

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