Rosky Legal Education
Greetings and Happy Winter! 

This week we kicked off our new webinar series with Show Confidence On Paper: Strategies for Powerful Legal Writing. We covered a bunch of straightforward strategies for eliminating writing habits that undermine your professional authority. One of the quick takeaways is especially easy to implement: avoid a little something I call “the double tentative.” Read on and see if your writing is plagued by the dreaded double tentative.

Until the next tip!
Dianne Rosky
_____________________________________
 

Beware the double tentative! 

You’re probably well aware of the double negative, but I’m guessing you haven’t heard of the double tentative. (That’s an educated guess, given that it’s a term of my own invention.) The double tentative, as I’m defining it, is the use of two words or phrases that add lawyerly layers of uncertainty to an otherwise clear statement.
 

Here are a couple of typical examples:

•    Ample evidence exists here that would appear to support this threshold factor.
•    It seems that the arbitration provision would in all likelihood apply.  
•    It is possible that a Delaware court may deem the transaction a transfer.

Exhausting! Phrases like “would appear” and “it seems” are the hallmarks of the double tentative. Yes, these types of phrases have their place in legal writing. Lawyers have many legitimate reasons for conveying uncertainty: we give advice based on how a court might rule, what an adversary might argue, or what a counter-party might claim. But piling on the caveats sends the wrong message, telling the reader, “I don’t really know what I’m talking about,” or "I'm more concerned with covering my a** than giving you solid information."
 
So here’s my advice, in two parts:
 
First, don’t be tentative at all unless you absolutely need to. Your readers need to know they can trust your analysis. So if your uncertainty is just that unavoidable sense that you missed something, go ahead and make a reasonable assertion without caveats.

Write this:
The Second Circuit has adopted a harmless error standard.
Not this:
The Second Circuit appears to have adopted a harmless error standard.
 
And second, if you do have a legitimate reason for expressing tentativeness, adopt a strict one-caveat-per-sentence limit.

Write this:
The arbitration provision will most likely apply.  
Not this:
It seems that the arbitration provision would most likely apply.  

Explain your uncertainty. Own it. And don’t hide behind a pile of double tentatives. 

CLE Webinars

We have launched our CLE webinar series! The first one—Show Confidence on Paper: Strategies for Powerful Legal Writing—will be available on-demand next week. The next one—Writing for Litigators: Essentials of Persuasive Writing—will be offered live on March 6, 2014. Sign up here. 
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Ever wish for a poetic, pithy summary of Supreme Court cases, new and old? There's a blog for that: Supreme Court Haiku. The subtitle says it all: the law of the land in 17 syllables. 

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