Bonuchi Law

It might feel good, but hyperbole hurts appellate (or any) brief writing

Posted January 25, 2018

Using cringe-worthy adjectives like “specious” or “ridiculous” to describe an opponent’s position is almost always a bad idea. Often accompanied by incomplete, circular, or conclusory reasoning, these tiresome words are telltale signs of a weak argument. For readers—particularly appellate judges—they are a quick turn off. And the worst of it is, these little flicks of emotion typically come at the front end of a brief or argument, right where they can do the most damage. In 2013, a panel of the Sixth Circuit launched into an opinion with a pretty good summation of the problem:

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There are good reasons not to call an opponent's argument "ridiculous," which is what State Farm calls Barbara Bennett's principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, "the better practice is usually to lay out the facts and let the court reach its own conclusions." ... But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

That could not have been fun for counsel to read. The opinion is Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584 (6th Cir. 2013) if you’re interested.

All that said, even the best writers reach for hyperbole from time to time, even if only subconsciously. When I’m afflicted, it tends to show up in the weaker moments of my first drafts.

My advice? Keep a sharp lookout for these and other adjectives in your writing. Strike them whenever you can. But be mindful when you do, for those words are often patching holes that will need to be filled with facts or law to make a fully formed argument.

Shout out to the Washington State Civil Appeals Blog for flagging this one for us.