On Mitigated Speech

In a comment to this post, in which I asked, “Why is it that when you tell peo­ple the truths they don’t want to hear, you are ‘angry’ and ‘acrimonious’?” “Josh C” wrote:

Blunt answers, unpadded with cour­tesy, come accross as rude. That is a fea­ture of Eng­lish. See e.g. http://www.courts.state.hi.us/docs/CADR/CADR_LaBelle_MitigatedSpeech.pdf

It’s like fail­ing to use the sub­junc­tive in German.

The link led to a brief article from Hawaii’s alternative-dispute-resolution center discussing “mitigated,” “deferential,” or “indirect” speech:

…Tannen…argues that indirect speech does not necessarily reveal powerlessness, a lack of self-confidence, or anything else about the character of the speaker. She simply says that it is a natural and fundamental part of human communication. She notes that such speech varies by region, ethnicity, class, and gender, and can cause confusion and misunderstanding depending on the situation and the means of expression. For example, she points to the workplace as a place where we need to communicate with one another to get things done. And the way we choose to do this depends on who is being addressed—the boss, a peer, or a subordinate—and how we choose to communicate with each other—from commands to requests that don’t sound like requests but instead sound like an observation or a description of a situation. For example, she notes that issuing orders indirectly is typically the prerogative of those in power—the boss, the military officer, or the parent— because they can always use more direct ways or commands—“just do it!”—to accomplish the same end.

Scott Greenfield, in How High is Over the Top?, ties mitigated speech to recent conversations about professor Jessica Smith, attorney James Burdick, and marketeer David Faltz, each of whom demonstrated expectations that speech should be more deferential than its speakers thought appropriate in the circumstances.

While I am generally bluntly spoken, I recognize that there are times when mitigation is appropriate. For example, when I tell my younger child bluntly to do something, he tends to stop whatever he’s doing and argue. If I tell him more indirectly, I get faster compliance. So if I need to get him to do something quickly, I’m better off instructing him less directly.

Mitigation gets in the way of transmitting facts1 and drains the fire out of writing and speech, but it doesn’t necessarily impede communication. To the contrary, it may aid communication if the receiver of the message will be distracted by the lack of mitigation.

I see mitigation of speech as currency in a marketplace of needs: the more the sender of a message needs from the receiver and the less the receiver needs from the sender, the more the receiver can insist that the sender follow her standards of mitigation. If I need more from a reader than she needs from me, I will speak the way she wants to be spoken to, or I will not get what I need. If she needs more from me than I need from her, she will tolerate my bluntness, or she will not get what she needs.When I was writing this pleading one of my editors asked me whether instead of “this court should do X” I ought to write, “X should be done”—more indirect, deferential, mitigated speech.

When I write something for a court, I generally need more from the court than the court needs from me. While sometimes the court needs my instruction on the law, I almost always need the court to rule in my client’s favor.2 Because I need more from the court than the court needs from me, mitigated speech is called for. But at the same time I must be perfectly clear, because if the court misunderstands me the results will be catastrophic for my client.

I have abjured formalism in legal writing. I cut out the “to the honorable judge of said court” and the “wherefore, premises considered,” and all the meaningless mumbo-jumbo in between. That mumbo-jumbo, while meaningless, served a purpose: to signal deference; to mitigate speech. If you begin with “Comes now” and end with “respectfully submitted,” you have theoretically satisfied your readers’ desire for mitigation so that plain speech will not distract the court from understanding your argument.

If I were writing for the least common denominator I’d be more deferential, but even without the mumbo-jumbo, I write plainly in my pleadings because I assume that the judges to whom I’m writing are grownups who want to know what the facts are, what the law is, and how the law applies to the facts, without indirection or mitigation. And while they have been given no reason to expect it by the vast bulk of legal writing, judges want to be entertained. Writing should sizzle and hum, rumble and pop. Legal writing should surprise the reader, and anger her and amuse her and sadden her, and at the end it should satisfy her with the inescapable conclusion that the law and justice require her to do what the writer asks. Mitigated writing is insipid writing. It has no music because mitigation drains the words of spirit. If deferential writing arouses emotions, it is the deference that does so rather than the writing. While good writing makes people feel things about the subject, bad writing makes people feel things only about the writing.
In my Petition for Discretionary Review to the Texas Court of Criminal Appeals—among the most socially conservative appellate courts in the country—on the case that got the online-solicitation statute dumped, I wrote:

The U.S. Constitution allows an adult to talk dirty to a child as long as the dirty talk is not obscene as to the child (or otherwise unprotected speech, such as actual solicitation).Non-obscene, non-harmful-to-minors communications, no matter how tasteless we find them and no matter to whom they are made, are constitutionally protected.

Are there less confrontational ways to say the same thing? Certainly. Could I have found some more diplomatic way to frame it than “talking dirty”? You bet. Would it have been as effective? Doubtful. Did I catch the court’s attention? PDR granted. Did the court agree with me? Nine-zip. Did that make the Harris County District Attorney sad? Yep (PDF):

This Court erred in stating that the First Amendment necessarily protects speech that would be covered by Section 33.02l(b) if that speech was not already covered by another statute. See Ex Parte _ at * 4 (“In sum, everything that Section 33.02l(b) prohibits and punishes is speech and is either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected.”).

Instead, this Court should have held, in accordance with the controlling case law regarding the First Amendment overbreadth doctrine, that Section 33.02l(b) criminalizes a substantial amount of protected speech. Ex Parte _ at * 3; see United States v. Williams, 553 U.S. 285 (2008) (a statute is facially overbroad if it prohibits a substantial amount of protected speech). This is an important distinction as sexting with children is not covered by another criminal statute, and this Court’s opinion will be construed to hold that it is now constitutionally protected speech. Is that what this Court intended?

And is there anything better than that? I don’t think so.


  1. That’s why the passive voice is deprecated in formal writing. 

  2. “Almost” because sometimes I hope to lose the fight, knowing that winning the fight will help my client less than losing it and having preserved error on appeal. For example, a jury instruction might be required by the law but only marginally helpful to my client; I might ask for it in a way that preserves error but is likely to be denied. 

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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10 Responses to On Mitigated Speech

  1. Sherry says:

    Your writing does “siz­zle and hum, rum­ble and pop.” Sometimes it almost explodes. We love it. Keep it up.

  2. shg says:

    I’ve been thinking about Josh’s comment as well, a little troubled by how mitigation fits in with my post. Then, it occurred to me, largely as a result of your comment in response to Josh, that there were two (at least) universes of people with whom we interact: Those with whom we interact out of choice, and those who push themselves at us for their benefit. The former deserve mitigation, so some lesser or greater extent, regardless of who stands to gain the most from the interaction because we are adhere to the norms of human behavior.

    Those who push themselves onto us for their benefit, unwanted and unsolicited, are owed nothing. As their push violates polite norms in the first place, our reaction isn’t constrained by the norms of polite society.

    • Mark Bennett says:

      I don’t look at it as a matter of desert, but it’s true that those who try to force themselves upon us for their own benefit in unwelcome ways don’t even get the baseline courtesy that we give everyone else.

  3. Josh C says:

    To clarify a little, my original comment was to provide a useful description for what you described in your post, not to criticize your tone. That I might have answered differently is neither germane nor especially interesting.

    Your point on abjuring legal formalism is interesting though: one of the hallmarks of good legal writing, to my lay mind, is that it is exactly as ambiguous as it needs to be. Obviously, your writing style works for you; several other notable blawgers seem to have developed a similar style. I wonder though, would that style would work as well for anyone who didn’t have decades of experience to draw on? Or would that lead too many beginners into incoherency? (perhaps related to Pascal’s insightful “I apologize for the length of this letter but I didn’t have time to make it shorter.”)

    • Mark Bennett says:

      Legal writing—at least written advocacy—should never be ambiguous. Contracts? I think they shouldn’t be ambiguous either. It doesn’t require decades of experience, either: tell the court what the facts are, tell the court what the law is, tell the court what the law requires or, if the law requires something other than you want, tell the court why the law is wrong.

      And I didn’t take your comment as criticism. One feature of being bluntspoken is that you take other people’s words at face value.

  4. 1. The prosecutor’s rhetorical question is really passive-aggressive and stylistically bizarre.

    2. I still use some mumbo-jumbo in legal writing because I think judges are distracted by its absence. I never use it in front of a jury. The jury has no idea what “may it please the Court” means. It is truly bizarre to begin what is meant to be a persuasive speech by using a phrase your audience has never heard and does not understand. And lawyers do and say things like that all the time.

    • Mark Bennett says:

      I agree. “Is that what this Court intended?” is condescending. My first draft called this portion of the State’s brief “a political speech.”

      I’m treating “Instead, this Court should have held, in accor­dance with the con­trol­ling case law regard­ing the First Amend­ment over­breadth doc­trine, that Sec­tion 33.02l(b) crim­i­nal­izes a sub­stan­tial amount of pro­tected speech” as an admission of error.

  5. Josh C says:

    IANAL. However, I sometimes read things like Butterick’s opinion of fine print, and that leads me to the idea that, while clear and unambiguous is usually the goal of legal writing, it ain’t always so.

    Similarly, when I present engineering analyses, I try to do so as clearly as possible. On at least one occasion though, someone demanded evaluation of ever more ridiculous scenarios, and so I provided ever more elaborately caveated evaluations of those scenarios.

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