Legal Writing Notebook: The not-inconsiderable trouble with double negatives

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In honor of Valentine’s Day I was originally planning a column called “The Joy of Interrogatories: A Gourmet Guide to Not Quite Getting What You Want” — but figure that can await another (very slow) month.

Instead, I’m focusing on a topic inspired by an email from a thoughtful reader: what’s up with multiple negatives.

We love them, don’t we? Double negatives turn an ordinary sentence into a procession: It is not inconceivable that a jury will find in Plaintiff’s favor. Defendant’s actions are not inconsistent with guilt. The history of this litigation is not unknown to this court. And so on and so on, negatives parading like pairs of animals onto Noah’s Ark.

Coy expressions like these are not unfamiliar to anyone who reads legal writing. If hyperbole is exaggeration for effect, legal coyness tiptoes in the opposite direction—dialing back past the point of simple clarity into a nest of negatives that the reader must delicately unwrap, like a present, to discover what (if anything) the writer is really saying.

Why do we do it — lack of commitment? Passive aggression? A desire to play hard-to-get? Or could it be exaggerated understatement is a kind of “snark lite”— a deadpan sarcasm that lets us make our point and plausibly deny it too?

Had we but world enough and time, it might be not unentertaining to write this way; some writers not unlikely enjoy burying the lede deep enough to challenge the reader, and some readers must delight in the thrill of the chase.

But, you know, clarity. Working people actually have to understand what we write and base their decisions upon it; and whatever burdens the reader’s comprehension also burdens the decision-making process. So, although I’m not unsympathetic to their proponents, in legal writing I consider double negatives best done without.

Naturally I had to check in with my sources to see whether others shared my view, and to my surprise, this was a topic rarely addressed. Apparently a not insignificant number of writing authorities don’t see a problem — when the issue is casual spoken English, not written English.

Of those that do address double negatives in writing, the reviews are mixed. Bryan Garner’s Modern American Usage considers double negatives “often needlessly used in place of more straightforward wordings” and opines that when they serve no purpose, they are best avoided. I’ll let him say it: “To say, for example, that the point is not uninteresting or that somebody’s writing is not unintelligible is probably to engage in a time-wasting flourish.”

Yet some see double negatives as serving a purpose. The Only Grammar Book You’ll Ever Need (which, with respect, it is not) observes that double negatives convey a “positive or lukewarm” meaning, as in “not unhappy” meaning both literally what it says but also conveying a distinct lack of enthusiasm. Lenne Espenschied considers the rule against two negatives in a sentence to be “simplistic and particularly burdensome to observe in legal writing, where sentences can be composed of several clauses and phrases”—but cautions “novice legal writers” to hew the rule to avoid ambiguity. She asks, “For example, does ‘I do not disagree’ mean that I agree?” (Yes. Yes, it does.)

I would submit that even in casual spoken English, there’s a difference between idiom (“Don’t do nothing I wouldn’t do”) and not thinking all the way through to the end of the sentence. For example, my thoughtful reader called to my attention this sentence, recently published in a Minnesota newspaper:

“‘I have no reason not to believe that President Kaler and his administration are not involved in this,’ said Carter, a former Gopher.” (Emphases added.) Show of hands: who thinks Carter is saying the administration are involved? Not involved? Anyone besides me have no idea?

Some takeaways:

• Don’t correct someone for using multiple negatives in casual speech; that rises to the level of excessive force in grammar-police-world.
• But if you’re interviewing or deposing someone and the use of multiple negatives makes it impossible to figure out what they meant, do ask for clarification.
• It’s also okay to use multiple negatives in a written sentence that deploys multiple clauses, as long as you avoid ambiguity.
• But the “not un” formulation makes a lame, lukewarm positive—a long way of saying “meh.” Double negatives like these convey veiled sarcasm: you are telling the reader you feel doubtful or unenthusiastic, yet in legal writing, it’s safest to assume the reader does not care.

So there you have it. When two negatives walk into a sentence, it’s not meant to be a love story. One of them should leave.