How “Intense” is Your Appellate Panel?

It might make a difference in how the members of the panel view your brief!

In this highly unusual study, the authors looked for correlations between the use of “intensifiers” — words like “clearly,” “obviously,” “blatant” and “very” — in appellate briefs and the outcome on appeal.  From the abstract of the paper:

This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an offending party. But – and this was an unexpected result – if an appellate opinion uses a high rate of intensifiers, an appellant’s brief written for that appeal that also uses a high rate of intensifiers is associated with a statistically significant increase in favorable outcomes. Additionally, when a dissenting opinion is written, judges use significantly more intensifiers in both the majority and dissenting opinions. In other words, as things become less clear, judges tend to use clearly, and obviously more often.

The abstract goes on to note there may be explanations other than the ones that might immediately leap to mind.  Still, this is no reason to start peppering your briefs with intensifiers you normally avoid.  But it is interesting!

Hat tip: Texas Appellate Law Blog.