Last post I went on a bit of a rant regarding the death of “literally.” This post is about another word. This time, the word is “clear,” or in its other commonly-used form, “clearly.” Unlike “literally,” whose unseemly demise was brought about by our fascination with hyperbole, “clearly” has just been overused to the point that it needs to be buried. The problem with overusing “clearly” is most prevalent in legal writing; and it is from legal writing that it needs to be most swiftly excised.
Legal-writing-guru Bryan Garner includes “clearly” in a list of “weasel words.” Defining “weasel words,” he quotes Theodore Roosevelt: “One of our defects as a nation is a tendency to use what have been called weasel words. When a weasel sucks eggs it sucks the meat out of the egg and leaves it an empty shell. If you use a weasel word after another there is nothing left of the other.” Bryan Garner, Garner’s Modern American Usage 853 (3rd ed. Oxford Univ. Press 2009). Garner continues, “[s]ensitive writers are aware of how supposed intensives (e.g. very) actually have the effect of weakening a statement. Many other words merely have the effect of rendering uncertain or hollow the statements in which they appear.” Id.
In legal writing, and persuasive writing in general, “clearly” has come to mean, “I want you to see it this way.” And usually it means that what you are saying isn’t clear at all, but it is your argument. If an argument’s conclusion is, in fact, clear, you won’t need to tell your reader that it is. Judges, and readers in general, do not want you to tell them how clear your argument is. At best, it’s hubris; at worst, it’s insulting. The last thing you want to do is tell any reader, especially a judge, something like, “If you were as smart as I am, you would see how inescapable this argument is. If you don’t think it is clear, you’re obviously missing something.”
When it comes to legal argument, my philosophy has always been to write like you’re just telling the reader how it is, not like you are trying to convince them how it should be. It’s more convincing (and less insulting) to say, “The grass is green and the sky is blue,” than to say, “The grass is clearly green and the sky obviously blue.” It becomes exponentially worse when you are arguing a controversial point, where the judge may not want to agree that the law says what it says. The more you tell the judge how clear it all is, the more likely the judge will see it as anything but.
By all means, make your point, support your point, and summarize your point. But don’t tell me your point is clearly the only conclusion. If you have prepared a well-written, well-reasoned argument, everything in it should draw me to the conclusion that you want. You won’t need to tell me your point is clear. If you have to tell me how clear the conclusion is, you’re telling me that you’re point isn’t strong enough to stand on it’s own and needs you to stand behind it, constantly asking me why I can’t just see it the way you do.
And that, my friends, is clearly a bad idea.