Part III: Don't tell the reader what to think or feel

To achieve the Remaining Invisible goal, the writer has to remove her mental and emotional processes from her writing. Judges know when lawyers are making a play for their emotions, so instead of proclaiming indignation ("opposing counsel's conduct represents an affront to the legal profession"), it's better to state the facts which provoked it ("out of twelve pages of argument, counsel devotes three pages to precedent and the remainder to questioning plaintiff's parentage"). Instead of telling the reader what to think, it's better - and more convincing - to set out the facts and law in a way that leads him to the desired conclusion on his own. A well-presented argument doesn't require unnecessary, transparent efforts to convince (e.g. "clearly," "obviously," "blatant," "utter," etc.). A "clear" and "obvious" thing will speak for itself.

But sometimes lawyers have to make arguments that don't stand a chance, and write with the hope that calling their conclusions "obvious" lends them a cloak of inevitability that covers their flaws. Unfortunately, it doesn't. This strategy can't compensate for bad facts or law, and works best as a giant flashing arrow drawing the reader's attention to an insubstantial claim. And, like George Costanza trying to convince a woman she can't get him out of her head, it's simply magical thinking done badly.

For example, the first of these sentences draws a conclusion for the reader, but the second depends on the facts which lead the reader to decide for himself:

  • His conduct was clearly offensive.
  • Several neighbors denounced his conduct at four consecutive community board meetings.

Likewise, adverbs, adjectives, and qualifiers (such as "a fairly significant holding" - is it significant or not?) draw attention to the writer's unfolding thought process instead of the facts and law. Compare these versions of a quote from the late Justice Scalia, and note how various hedging techniques weaken the first, doctored version, compared to the second, original quote:

  • “I would argue that adverbs are mostly a cop-out. They’re almost a way for you to qualify, and if you don’t use them, it really forces you to think through the final conclusion of your sentence. And clearly, it forces you to confront the significance of your word choice, in other words, the importance of your diction.”
  • “I think adverbs are a cop-out. They’re a way for you to qualify, and if you don’t use them, it forces you to think through the conclusion of your sentence. And it forces you to confront the significance of your word choice, the importance of your diction.”

True, there's no need to avoid these formulations in a initial draft. Embrace them at first, if you'd like - it's important to write without interrupting the flow - but don't let them slip past your editing. Here's the Bryan Garner-recommended method for condensing diluted prose: Where you encounter a qualifying word, delete it, and if it changes the meaning of your sentence, try to express your meaning with a more precise noun or verb before resorting to your qualifier.