COMMENTARY: Legal Writing Notebook - Why hyperbole is a complete disaster

By Karin Ciano
BridgeTower Media Newswires
 
It’s that time of year again — when a bright-eyed group of recent law school graduates are sworn in to become lawyers. A time when we more seasoned lawyers make a point of welcoming our newest colleagues to the bar.

It’s also a time to think once again about the fundamentals of legal writing. And because the millennial generation has now joined the ranks of practicing lawyers, today’s column is inspired by a recent Washington Post article on millennials who described the candidates in the presidential election thus: Super villain. Evil. Criminal. Sociopath. Absurd. Horrifying. Disgusting. Dangerous. Disaster.

Two takeaways: first (no surprise), folks in their 20s don’t mince words. Second, hyperbole is coming back into fashion.

Hyperbole is deliberate overstatement or exaggeration used to express strong feeling or make a vivid impression. H.W. Fowler defines it as “over-shooting” — “using exaggerated terms for the sake not of deception, but of emphasis, as when infinite is used for great, or ‘a thousand apologies’ for an apology.” Writing authorities who discuss hyperbole usually include a lawyerly disclaimer that such statements are not to be taken literally.

If hyperbole wasn’t covered much in your legal writing class, there’s a reason: to the law-trained reader, it’s not persuasive.

That may be because hyperbole is all emotion and zero logic. In their book “Making Your Case: The Art of Persuading Judges,” Bryan Garner and the late Justice Antonin Scalia offer 115 tips on argument — and “flee[ing] hyperbole” is No. 6. Urging readers to “[n]ever overstate your case” and “[b]e scrupulously accurate,” Scalia and Garner write: “Scrupulous accuracy consists not merely in never making a statement you know to be incorrect (that is mere honesty), but also in never making a statement you are not certain is correct.”

Indeed, hyperbole can be the opposite of persuasive. Here’s ABA author Lenne Espenscheid: “Lawyers’ arguments should be grounded in facts and logic: if the legal basis for the position is sound, hyperbole contributes nothing of value. Worse than adding nothing, exaggeration may detract from credibility, while creating unnecessary drama and stressful emotions for the clients we serve.”

I could give you more examples, but it would be the biggest waste of time in recorded history.

There is no meaningful dispute among authorities that hyperbole diminishes the credibility of legal writing. But let’s not take things for granted — why should it? Don’t we all talk this way sometimes? If I’m a lawyer, can’t I also be a human being?

Yes, but the issue is context. Remember that disclaimer about not being taken literally? It’s always risky to assume that your audience will understand you don’t actually mean what you say.

So always consider the context. When you’re performing onstage at a comedy club, giving a toast at a friend’s wedding, or holding forth with a drink in your hand at a family Thanksgiving, hyperbole the heck out of it.

But when you anticipate standing in front of a person in a black robe, or filing a document that will be viewed by the public — whenever and wherever someone might possibly think you’re acting as a lawyer — you’re going to be taken literally, like it or not. If you say “my client tried to contact your client a million times” or “I’ve been working 24/7 to get this brief done,” don’t be shocked if opposing counsel serves you with a subpoena to find out if that’s accurate. And if you follow that up with “opposing counsel’s discovery request is the most outrageous injustice since the Scottsboro Boys trial,” don’t be shocked if your credibility takes a hit.

None of us, lawyers least of all, get to cry “wolf!” very often without someone expecting to see one. “Made you look” or “I was being sarcastic” are not especially effective defenses.

And because we’re trained professionals, it’s appropriate that we’re held to a higher standard. What we say, even casually, will carry more weight than we sometimes realize, especially with non-lawyers. Believe it or not, there are still citizens who look up to us as a profession and expect us to care about the truth.

Since hyperbole can often be unconscious, I recommend hunting for it when you edit.

Scrub out extremes and superlatives like always, never, best, worst, most, biggest, smallest, greatest, etc. To paraphrase Abraham Lincoln, unless you can prove it, better not plead it.

Take out literally — unless you mean literally, as in something really happened exactly as you say.

While you’re in the neighborhood, take out other adverbs ending in -ly (obviously, plainly, outrageously, unbelievably, etc.) They’re coercive, not persuasive.

Take out any word that you would shout at an opposing sports team, or at a driver who cut you off — in other words, any word that is the product of an emotional reaction on your part.

Have your writing buddy give it one last read before it goes out to prevent disaster. Literally.

Congratulations to all the new lawyers who have just joined us. Thank you for your studies and diligence, and welcome to the bar. May your clients be reasonable, your opposing counsel respectful and your arguments always be understated.
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Karin Ciano practices civil rights and employment law, and helps other lawyers with their writing. She welcomes your questions and feedback at Karin@karincianolaw.com.