The Last Word Don’t Be So Negative by Joe Fore My wife and I are the proud parents of a three-year-old. While it hasn’t made for the easiest home life during the pandemic, it’s done wonders for my communication skills. One thing I learned very early on: think (and speak) positively. For example, let’s say it’s lunch time, but my son is having trouble focusing on his meal. After a couple of gentle reminders, I might try to get tough by saying something like this: If you don’t finish your food, you can’t go outside to play. Notice how the sentence is framed in the negative: if you don’t do X, you can’t do Y . It’s a natural way to communicate consequences. But that negative phrasing presents a couple of problems. First, from an emphasis standpoint, it focuses on the undesirable outcome ( not finishing food; not going outside) instead of the desirable one (finishing food; going outside). Second, from a clarity standpoint, the sentence doesn’t clearly state what the listener is supposed to do. The sentence implies the right thing to do (finish your food), but it requires an extra logical step to get there. And that’s a lot for a toddler to handle. So, as a parent, I’ve come to realize that it’s clearer and more effective to restate the sentence to avoid the negative words altogether: As soon as you finish your food, you can go outside to play. This positive phrasing is easier to understand, since it requires no logical leaps. And from a persuasion standpoint, it makes the goal seem attainable. 62 In the same way that parents often employ negative framing, legal writers sometimes overuse negative words. For example, in litigation, advocates may use negative phrasing to define their opponent’s burden: If plaintiffs cannot show commonality, they cannot obtain class certification. Now, most legal readers are more sophisticated than toddlers (though their attention spans are sometimes similarly short and many are prone to the occasional tantrum when they don’t get their way). Still, rewriting this sentence to cut the negatives makes the sentence easier to follow and consumes less of the reader’s mental energy: Plaintiffs can only obtain class certification if they can show commonality . So when you edit your writing, watch for sentences that contain multiple negative words. “Negative” words include variations on no and not —words like neither , nowhere , nothing , never , nobody , and none . 1 But they also include many other words with negative connotations, including un-words like unless and until , de-words like deny and decline , re-words like reject and refrain , and ex-words like except and exclude . 2 Thus, a sentence like this: The Court should not exclude the evidence can be rewritten more simply—and clearly—as: The Court should admit the evidence. Negative phrasing is also common in transactional drafting 3 : Party A will not disburse the funds until Party B does X ; or Party A may not do X unless Party B consents in writing. Now, there may be times when The Last Word continued on page 61 Joe Fore is an Associate Professor of Law, General Faculty and Co-Director of the Legal Research & Writing Program at the University of Virginia School of Law. Have a comment, a question, or an idea for a future column? Email him at jfore@law.virginia.edu or connect with him on Twitter (@Joe_Fore). www.vsb.org VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69
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The Last Word
Joe Fore
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