One of my long-time pet peeves is the use of language like “clearly” and “obviously” in the government’s briefs and memoranda. As much as I strain, I can’t recall papers that don’t engage in such machinations to challenge defense allegations. “Clearly, the indictment provides all necessary allegations of fact to allow the defendant to fully prepare for trial.” “The probable cause was obviously overwhelming.” These words are almost always used in conjunction with some hyperbolic claim that is wholly unsupported by fact.
It’s troubled me that judges not only buy into this non-substantive pap, but repeat it in their decisions. “Clearly” and “obviously” are not arguments, but conclusions. If they are warranted by the facts or evidence, then rely on the facts or evidence. At no time does the conclusion serve as a substitute for substance.
Was I alone in thinking this? So it seemed until Eugene Volokh posted this paragraph by Judge Powell in
Georgia, F. & A. Ry. Co. v. Sasser, 61 S.E. 505 (Ga. App. 1908):
“Obvious” is a pretty strong sounding word. Its chief juridic employment, so far as my observation goes, is by judges of courts of review, who generally pronounce obvious those propositions (evolved, perhaps, with many concealed misgivings) which they are able to support with but sparse array of precedent and which they are unwilling to put forth as an original dictum without the supporting influence of some strong, impressive, faith-bearing word; for a proposition weak in substance is oft aided in appearance by the strength of sonancy, and “obvious” is a sonant word.This was in 1908, and captures the essence of the problem so well. Granted, it’s about the use of such language by courts rather than prosecutors, but the same concept applies.
Whenever the words “clearly” and “obviously” are used, it’s a red flag to cover the fact that there’s nothing behind them. They are cover-up words, designed to convey certainty beyond question in the absence of any substantive showing to make the point.
How do we know this? Simple: If the government had facts to make its point, then it would use those facts and make the point. It would not resort to rhetorical gamesmanship and risk blowing the deal if there was anything hard behind the claim.
The question remains why judges allow prosecutors to get away with this sort of garbage, and encourage it by parroting the government’s pseudo-argument in their decisions. The answer, I fear, is clearly obvious.
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Your position on clearly and obviously is arguably correct
The appellant’s argument is without merit.
OMG, you agreed with me on something? Woo hoo!
Another great example. And let’s add, “appellant’s argument is frivolous” to the mix.
Attempts by the state to make their case seem like a slam dunk are often laughable. Forget justice, forget guilty until proven innocent, the prosecutionw wants quick guilty verdicts.
When I had higher intellectual pretensions I thought I would write a book entitled, “Restatement of the Obvious” and fill it with all of the things that we know to be true, but that have no precedential support whatsoever.
That’s a great idea. I love it!
I concur, Scott. However, it seems that you obviously (and clearly) have way too much time on your hands. With all your posting and venting, when do you practice law?? Smell the flowers? Write poetry? Spurious minds want to know.
By the way, do you really think government lawyers do this more than those in private practice? In 1981, the very first appellate brief I was asked to sign in NYS was written by one of the most famous criminal defense lawyers in the nation. It began: “Never in the annals of jurisprudence has such a travesty of justice been . . . . .” I don’t remember whether he ever said “obviously” or “clearly,” and although I was a brand new associate, I refused to have my name on that brief.
Ah, two great points from the Professor. I’m actually very busy with my work, but there’s always time for me to post a bit.
You make an excellent point about whether the “clearly, obviously” think is more pervasive with prosecutors. Since I’m a defense lawyer, I don’t see the product of other defense lawyers as frequently as I see prosecutors work in opposition to my own, which skews my perspective. There’s no reason, as you note, that defense lawyers should be more immune to hyperbole than prosecutors. But since we usually carry the burden of persuasion, and since this type of deflection is used most often in opposition, I suspect that it remains a primary tool of the prosecution rather than defense since it would fail miserably in our hands.
That said, “Never in the annals of jurisprudence has such a travesty of justice been . . . . .” is the sort of gross overstatement that would make anyone grimace and blow one’s credibility right off the top.
My manual for law students says: “NEVER OVERSTATE YOUR CASE. Your case is rarely that good. Overstating it will raise the court’s expectations and, when they are not met, reduce your credibility. Overstating also has the tendency to raise your standard of proof beyond what the law requires. That means never use the word “clear” or its derivatives in a brief. If it is clear, then you don’t need to tell the court. If it is not clear, then the adjective is superfluous and raises the court’s expectations. Believe me, I have read briefs as a judge and “clearly” clangs.