by Justice Bill Boyce, Fourteenth Court of Appeals
One step on my journey towards concise expression occurred when, as a cub reporter, I received sage advice from a grizzled newsroom veteran with whom I had worked on an article that carried our names.
“This article,” the experienced reporter announced in a voice loud enough to be heard by all at the city desk, “is a piece of [not very good writing].” The reporter expressed dismay at having opened the paper to find a byline attached to this “[large and fresh specimen of not very good writing].” The article’s “[really not very good at all]” portions had come from me and contaminated the few remaining well-written paragraphs that I had not touched. I was informed that this reporter never before had allowed a byline to accompany a “piece of [not very good writing]” of this nature.
The reporter used this mentoring moment to suggest several strategies for my long-range personal and professional improvement; these included remedial instruction, better grooming, and exploration of alternate career paths that did not require facility with the written word.
The specific advice I wish to focus on here was the reporter’s additional heartfelt admonition to “stop using so many f[unctionless] adverbs.”
I took the pointed adverb advice to heart and tried to reduce their presence in my writing in the decades following this stimulating newsroom tutorial. The bench has reinforced my hard-earned suspicion of adverbs as I have trudged through scores of briefs fulminating about litigation opponents who have “brazenly” misrepresented the record, “cynically” manipulated the legal system, and “egregiously” misled trial courts into “inexplicably” committing the most profound affronts to reason and nature.
One short-hand version of this writing advice applies to briefs and opinions alike: “Show, don’t tell.” Well-chosen record quotes and non-hysterical factual descriptions provide sufficient emphasis while avoiding the empty calories and extra weight that accompany repeat trips to the adverb bar.
Just when I had my arms-length relationship with adverbs figured out, along came a recent article in The Wall Street Journal entitled: “Why Adverbs, Maligned by Many, Flourish in the American Legal System.” It cites examples from legislation and court opinions in which legal standards gain meaning – and perhaps a bit more flex at the joints – through strategic inclusion of adverbs.
One cited example is Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), a Breyer opinion addressing aggravated identity theft under 18 U.S.C. § 1028A(a)(1). This provision imposes a mandatory two-year prison term on individuals convicted of certain other crimes if the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The United States prosecuted Mr. Flores, a Mexican citizen, under this provision after he presented his employer with counterfeit Social Security and alien registration cards that used his real name but included numbers assigned to other people.
Mr. Flores argued that the United States could not prove he knew the numbers on the counterfeit documents were assigned to other people. The government argued that the word “knowingly” modifies the verbs but does not apply to the last three words of section 1028A(a)(1) – “of another person” – so that a prosecutor need not “show that the defendant knows that the means of identification the defendant has unlawfully used in fact belongs to another person.” Id. at 1890. The district court agreed with the government and found Mr. Flores guilty after a bench trial; the court of appeals affirmed.
The Supreme Court reversed. As a matter of grammar, it reasoned that the adverb “knowingly” modifies all following portions of the sentence including the phrase “of another person.” Id. Justices Scalia concurred and was joined by Justice Thomas; they agreed with the grammatical analysis of the statute’s plain text but eschewed the majority’s additional discussion of legislative history. Id. at 1894-95 (Scalia, J., concurring). Justice Alito concurred as well to emphasize that the opinion should not be read “as adopting an overly rigid rule of statutory construction.” Id. at 1895 (Alito, J., concurring).
Qualifications and caveats aside, all justices agreed that the use of “knowingly” in this particular statute created a narrower, more precise evidentiary requirement for conviction.
And so, with due deference to my abusive former newsroom colleague, I find myself reassessing my adverb aversion. Perhaps there is more room than I was allowing to consider the appropriate use of adverbs in addressing governing legal standards. Maybe the justifiable reluctance to load up factual recitations with frothy but meaningless adverbs should be tempered by the recognition that greater meaning sometimes can be achieved with their sparing use. I am, in short, ready at long last to acknowledge that adverbs are not always bad.
As long as they’re used knowingly.