Say What It Is, Not What It Isn’t
Legal writing is about clarity. Precision. Getting to the point. But too often, law students and bar examinees hedge their statements or frame conclusions in the negative—when the stronger choice is to state them in the affirmative.
This came up in a recent Constitutional Law essay. One of the calls of the question asked students to determine whether an ordinance in the test question was a content-based or content-neutral regulation. In reaching their conclusions to this part of the question, some students wrote:
✍🏼 “The ordinance is not content-neutral.”
While this technically conveys the right idea, it’s not as clear or strong as simply stating:
✍🏼 “The ordinance is content-based.”
Why is this better? First, the call of the question asks the test-taker to determine whether the ordinance is "content-based" or "content-neutral." There are two choices that examiners and graders expected to see: "content-based" or "content-neutral." There aren't four choices: "content-based," not content-based," "content-neutral," or "not content-neutral." Why unnecessarily complicate the readers' lives when you don't have to?
Second, and more importantly, legal writing isn’t about leaving the reader to infer what something is based on what it isn’t. It’s about directly stating what something is.
Why Affirmative Statements Matter
✅ They provide clarity. Saying what something is leaves no doubt.
✅ They avoid unnecessary mental gymnastics. If a reader has to pause to reframe a negative statement into a positive one, that’s wasted effort.
✅ They make your argument sound stronger. A direct, affirmative conclusion comes across as more confident and authoritative.
Other Common Legal Writing Pitfalls
Here are some examples of how to strengthen statements by moving from the negative to the affirmative:
❌ “The statute is not unconstitutional.”
✅ “The statute is constitutional.”
❌ “The defendant did not lack intent.”
✅ “The defendant acted with intent.”
❌ “The statement is not inadmissible.”
✅ “The statement is admissible.”
Notice how the affirmative versions are clearer and more direct? This small shift can make a big difference, whether you’re writing an essay, a memo, or a bar exam response.
When making legal arguments, say what something is, not what it isn’t. Your writing will be clearer, more persuasive, and easier to follow.
