The Urge to Exclaim

In legal writing, don't give in to the urge to exclaim.

William Domnarski

William Domnarski is a Southland mediator and practitioner. His latest book is "Richard Posner," published by Oxford University Press in 2016.

We've all wanted to do it. We've all wanted to flag phrases or sentences in our writing. Most of us may know we should resist the wiles of the exclamation point, which we want to believe will let the reader hear us cry out or speak in strong or sudden emotion (Webster's first definition of exclaim), but it's hard.

Don't do it. Don't give in. The exclamation point is the nuclear option that writers must resist, at least if they want to come across as fair, balanced, and probative. The point of the popular Seinfeld episode in which Elaine, a book editor, couldn't stop using the exclamation point was to show that she was just shy of unhinged, without good judgment or balance. It's a revealing mark of punctuation. For lawyers, the exclamation point is the equivalent of barking at judges, shouting, or gesticulating wildly to highlight an argument - all of which should be avoided. Judges are rarely impressed with such antics in court, so they will hardly be impressed when reading the prose versions of them. There's no "heat of the moment" defense in the writing process.

As part of our ongoing language war with the British, we may disagree about how to label this bit of punctuation: They prefer to call it a "mark," while Americans like to call it a "point." But we agree it should be used sparingly everywhere - and rarely if at all in formal writing - to show strong emotion, surprise, or disbelief. The Chicago Manual of Style recommends limiting it to marking "an outcry or an emphatic or ironical comment."

The desire to emphasize in writing briefs sometimes leads lawyers to the exclamation point's illegitimate cousins, such as ALL CAPS, bold, underlining, or a l t e r n a t i v e spacing. But using the first three of those reflects rank amateurishness and finds no support in the rules of language. The fourth is just nutty.

The objective of a brief is to persuade - coolly and objectively. There might be exceptional instances when an exclamation point could work, but those who attempt to use it swim in treacherous waters. Emotion, or what we might generally call "attitude," should be avoided. Really, no one cares how the lawyer feels about the case. Imagine the consequences if that were the standard for a successful pleading or argument.

The fact that judges sometimes use exclamation points in their writing does not make it more acceptable for lawyers to use them. Judicial opinions serve a different function from briefs, and a display of personality actually can make an opinion more effective. However, judges too should proceed with caution. Supreme Court Justice Antonin Scalia stands as an object lesson; he has increasingly used the exclamation point to drip some of the acid of derision and mockery onto his dissents, as in, "What a good idea!" and "How wonderfully convenient!" Scalia has now done it so often that we could use the punctuation in his dissents as a warning for how cranky, irritated, or angry we may be tempted to sound in our own briefs.

English is a great language, and the proper use of it will always be sufficient to emphasize what needs to be stressed. To be as effective as possible, we just have to keep to our objectives in emphasizing particular points and let go of the emotion. We don't want to read (or worse yet, have our clients read) about ourselves in the Federal Supplement - as one lawyer recently did - that "regrettably for plaintiff, the use of multiple exclamation points, all caps, and bolded text is no substitution for citation to binding legal precedent." (Rosell v. Kelliher, 468 F. Supp. 2d 39, 48 n.13 (D.D.C. 2006).)We are most likely to persuade when we coolly make the most of our rich language to make our points, rather than just emote. For good or ill, law is about the head, not the heart.

William Domnarski practices civil and criminal law in Southern California and is the author of four books, including Swimming in Deep Water, a collection of short essays about the legal profession.

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Kari Santos

Daily Journal Staff Writer

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