Knowingly, intentionally or recklessly: How these words are hated by most but loved by attorneys #WritingLegally,#Writin

Posted on 11-05-2014 by
Tags: writinglegally , legal writing , #writinglegally , Latest Headlines & Stories

Being compared to cheap cologne, trans fat, or being told you’re “not a friend”, doesn’t typically end with a happy ending. In fact adverbs, such as “typically”, have been compared to or called the previous things, yet still remain prevalent in the legal profession.

Many adverbs such as “knowingly”, “intentionally” or “recklessly” can often be connected with crimes when it comes to criminal intent. While these are the most common adverbs found in the legal profession, others have made their mark in the past thanks to a rising trend of precise textual analysis. (This is all according to Jacob Gershman, author of the Wall Street Journal article – Why Adverbs, Maligned by Many, Flourish in the American Legal System.)

 

In a U.S. Supreme Court case, Flores-Figueroa v. U.S., a petitioner successfully caused the court to change their stance on an identity theft claim due to the word “knowingly”, which was in the law that identified the crime. The petitioner, a Mexican citizen, gave his employer counterfeit Social Security and alien registration cards that showed his name, but used other peoples’ identification numbers. He argued that since the term “knowingly was present that the government had to prove he knew the ID’s were fakes. All the justices would agree with him. Justice Stephen Breyer wrote, “As a matter of ordinary English grammar, ’knowingly’ is naturally read as applying to all the subsequently listed elements of the crime.”

The previously-stated case is not a common occurrence. An instance where the use of an adverb helps exonerate a person is rare, in fact the outcome usually would not go in one’s favor. According to a study by two scholars at University of Oregon Law School and Brigham Young University, lawyers who use intensifier adverbs (very, obviously, clearly, etc.) are less likely to win their appeal than those attorneys who avoid using those words. The study also found that this habit can help a lawyer if the presiding judge likes those adverbs too.

While these words may carry some influence on a case-to-case basis, ultimately they convey ideas that laws are unable to convey. According to Bryan Garner, editor of Black’s Law Dictionary, statutes have to be literal and specific. “A fiction writer might say he barreled down the street. There is no way a statute can say, ‘If you barrel your car.’ ”

Having to meet the criteria of being specific so a law cannot be misinterpreted, prevent adverbs from being used more than they already are. In fact some people, such as Associate Justice on the Supreme Court Anthony Kennedy, try to not use them at all.

Kennedy say avoiding using adverbs makes you realize the significance of your word choice.

“You just discipline yourself to choose you words more carefully.”

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