Intensifiers Part 3: You’re Literally Killing Me

Originally published by Wayne Schiess.

Part 3 of 3.

As legal writers, we might be tempted to use intensifiers to bolster our points—to persuade. These days, legal writers might even be tempted to use the word literally. I’ve got some bad news about literally, but I’ve got good news, too. It will make you so happy you’ll literally be walking on air.

Linguists and others who study language agree: In speech, the word literally is becoming an all-purpose intensifier like highly, clearly, and extremely. That’s the bad news, and there’s nothing much we can do about it. Language changes, and sometimes it changes for the worse. (Did you know that long ago, the frozen dessert was called iced cream? Incorrect pronunciation and spelling over time changed it to ice cream. It’s happening with iced tea, right?)

That’s why we hear nonsensical statements like these:

• he was literally glowing
• she was literally rolling dough
• my head literally exploded

But in legal writing, which values precision, we shouldn’t follow this trend. So even if you’re willing to say, in casual conversation, “My boss is so impatient, I’m literally walking a tightrope,” please don’t use this trendy sense of literally in legal writing. “The delays were such that the buyers were literally banging their heads against a wall.”

Now the good news. I did a search for the word literally in appellate briefs filed in the Austin Court of Appeals, the Texas Court of Criminal Appeals, and the Texas Supreme Court. I got nearly 2000 hits, and I skimmed dozens of them. I couldn’t find any genuinely erroneous uses of literally. There were some close calls, but overwhelmingly, brief writers use literally when they mean . . . literally. Hurray for these:

• The court concluded that, literally applied, the ordinance’s definition of “nonconforming use” is at odds with the ordinary meaning of that term.
• Aerofile denied that Hanson’s attempted forfeiture was effective because Hanson failed to strictly and literally comply with the notice provision.
• The statute can be read both literally and rationally.

Let’s keep it that way.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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