Bench & Bar July/August 2025

EFFECTIVE LEGAL WRITING

THE ABSOLUTELY VERY BEST ARTICLE EVER WRITTEN: STRATEGIC USE OF HEDGERS AND INTENSIFIERS IN LEGAL WRITING

BY SUSAN TANNER , ASSISTANT PROFESSOR OF LAW, UNIVERSITY OF LOUISVILLE, BRANDEIS SCHOOL OF LAW

H opefully you read the title and thought to yourself, “I doubt it!” As well you should have – the title overpromises in such a way that no one would believe the claim. When I teach persuasive legal writing to my 1Ls, I always begin by disabusing them of an insidious belief that many students picked up sometime before law school – that to make language more persuasive, we simply take neutral language and add intensifiers to it. INTENSIFIERS Intensifiers are words that authors use to ratchet up the strength of an assertion and express certainty, words like clearly , obviously , undoubtedly , and certainly . These words can function as intended when used judiciously, but they're more often misused than we real ize. It's natural to reach for intensifiers when we want to bolster our arguments—"The evidence clearly demonstrates the defendant's negligence"—but this strategy frequently backfires in ways that sur prise even experienced attorneys. To understand why intensifiers can undermine rather than strengthen our advocacy, forgive me as I digress (quickly, I promise) to an explanation of what linguistics tells us about how these words actually function. Critical Discourse Analysis teaches us that language doesn't just convey information—it constructs power relationships and social positions (in other words, it connotes meaning along with denoting it). When we use intensifiers, we're not just making claims stronger; we're positioning ourselves as authorities and attempting to close down dialogue. Words like "obviously" and "clearly" don't just inten sify—they implicitly challenge the reader's competence if they don't immediately agree. In legal writing, this can create an adversarial relationship with the very judge you're trying to persuade. In short, use of intensifiers often misses the mark because of what I've termed the red flag effect. Judges are trained skeptics. When they

see statements like " It is patently obvious and incontrovertibly clear that plaintiff's claims are entirely frivolous, " alarm bells go off. The judge thinks: " If this point were truly obvious, such forceful assertion would be unnecessary. " The red flag effect triggers increased scru tiny—exactly the opposite of what you want. Further, these words can create distance between author and reader – words like obvi ously can put the reader on the defensive as they think to themselves " well, it wasn't obvious to me. "

OVERUSE OR MISUSE OF INTENSIFIERS CAN MAKE YOU SOUND: • Bombastic or aggressive • Like you're masking a weak argument • Unprofessional or desperate • Less credible overall

SUGGESTED REVISION: Instead of writing " The defendant obvi ously breached the contract, " provide the evidence: " The defendant breached the contract by failing to deliver the goods by the May 1 st deadline specified in Clause 4(a). " Let the facts speak for themselves. HEDGERS Now let's flip to the other side of the coin: hedging language. These are words or phrases that soften or qualify statements— perhaps , maybe , possibly , arguably , it seems , it appears , may suggest . Many lawyers avoid hedgers, convinced they make arguments seem weak. It's easy to see why: taken to extremes, hedging does sound wishy washy (" It is perhaps possible to suggest that defendant might have been somewhat negligent, it seems ").

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