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Monday, September 6, 2010

More on Language ,Word Choice, and Persuasion

Hon. Robert L. McGahey, Jr.

I very much enjoyed Joe Lester’s recent post (available here) about language. It made me think of some problems I’ve noticed over the years with lawyers and that I’ve tried to correct with my students.

1. The TiVo moment. Q: “When the Defendant and the victim met up at the door, what did he say to him?” A: “He said: ‘What’s going on?’ Then he said: ‘Everything’s OK.’ Then he said: ‘I’m sure it is.’ Then I heard a gunshot.” Do you – or the jury -- have any idea of who said what to whom? Sloppy use of pronouns can produce what I refer to as TiVo moments: the factfinder has to pause the trial story for however long it takes to sort out what was said by what actor. By the time that’s done, the factfinder has to fast forward to catch up with the ongoing testimony -- and may have just missed the most significant testimony in the trial. This fix is easy: use names instead of pronouns. (Lawyers need to remember this in opening statements and closing arguments, too.)

2. False Qualifiers. How many of us have used a headnote like “Let’s talk a little bit about your educational background” or “I want to ask you a few questions about the intersection”? I suppose we say those kinds of things because we think it makes us sound more conversational. However, phrases like these are dangerous because they put a qualifier on the line of questions that follows. What if the fact finder’s “little bit” is shorter than the lawyer’s “little bit?” The juror stops listening when he reaches his “little bit” and may get seriously aggravated if counsel drones on after that. And you know that when someone says “a few questions,” some other persnickety person (like me) will start counting; the current leader in the clubhouse is 167 questions.

3. Watch out for the Grammar Police. The lawyer is winding up his so-far first- class opening statement: “At the end of this case, my client and me will ask you to bring back a verdict in the amount of one million dollars.” If a member of the Grammar Police (like my wife) is on that jury, the lawyer’s persuasive power just dropped like a stone. We need to make sure we use “I”, “me”, “him” and “her” correctly. The jury expects us to sound like educated people, albeit not stuffy, pompous or condescending ones.

4. PWC. Did I just say “albeit?” I shouldn’t have. My late Mother-in-Law was a grade school teacher for more than thirty years. One of her grading codes was “PWC” for “poor word choice.” Lawyers are notorious for this. We use legalisms, long words where short ones will do, or go the other way and attempt to sound “normal” by using inappropriate slang or catch-phrases. Clarity and understandability should be the keys. As Chris Tucker said in Rush Hour: “DO-YOU-UNDERSTAND-THE-WORDS-THAT-ARE-COMING-OUT-OF-MY-MOUTH?” Ooops. Sorry.

5. Words that mean something different to lawyers. This is a variant of PWC. An example: Q: “Let’s talk about your relationship with your boss.” A: (from indignant employee): “I don’t have a relationship with my boss! I’m just his administrative assistant, nothing more!” The word “relationship,” beloved of lawyers, clearly means something else to most civilians. The fix: Q: “Let’s talk about how you and Mr. Schmit get along at the office” or “Let’s talk about the way Mr. Schmit treats the people that he supervises.” There are lots of other words like this.

There are lots of other language mistakes that we all make every day. I’m not suggesting that we want to sound like Olivier doing Hamlet, but only that we remember that the words we use are some of the post powerful weapons in our arsenal -- and we want to deploy those weapons effectively.

1 comment:

  1. I'm in complete agreement about word choice being a critical part of advocacy. Judge McGahey's comment about "Just a few more questions" or "I want to talk a little bit about..." is especially apt.

    Credibility is the name of the game for trial lawyers. We want the fact finder to believe we are the "Gold Standard" when it comes to reliability and trustworthiness. When we make false promises about the duration or number of questions within a line of questioning or how much time we will spend with a witness it effects how the fact finder perceives us. In essence, we lie. If we lie about such simple things as time what else is disingenuous?

    In everyday life we often make such comments - "I'll be right there" - when we are watching a critical play during the game and it's dinner time. At trial, you just can't say those things and expect to be forgiven.

    The reality is these are simply "throw away" comments. They clutter our examinations, waste time, and call into question our honesty. Just don't do it!