Back at the Coal Face: Selby on Returning to Practice from Academia

When Behan, Rose and Selby set up this blog we were all practitioners turned academics.  Taking practice into the Academy seemed like a good idea.  It is that, though funding problems for schools and their students, on line teaching and learning, and the ever present cry to 'do more with less', thwart the ambitions to adequately prepare today's students for tomorrow's practice.

Some 18 months ago Selby quit his tenured position and headed back to practice, about a quarter century after he'd left it.  Much has changed but the fundamentals of being persuasive, though brightened by the micro chip and touch screens, are as important and as overlooked as always.

The order of what follows reflects the significance of the issue to Selby's practice rebirthing.  Readers should impose their own order upon the material, reflecting upon their experiences.

Turning the Tables: Advocacy Students Reflect on Serving as Witnesses and Jurors

The last assignment of every semester in my basic trial advocacy course is a self-analysis memorandum in which the students analyze their performances in the final jury trial of the semester and reflect on their growth throughout the semester. I always enjoy reading these assignments. For my purposes, they are superior to the course evaluation survey instrument the law school uses. When I read what the students have to say about their own personal experiences during the semester, I learn how well they understood the pedagogical objectives of the course, what lessons they learned as advocates, and how they plan to continue improving throughout their careers.

ADVOCACY TEACHING IDEAS FROM THE NEW YORKER?

Judge Robert McGahey of Denver submitted the following guest post:

I've subscribed to The New Yorker for years and read it cover-to-cover when I get it. The articles that are directly about the law and the legal process are frequently insightful and thought-provoking, especially those by Jeffrey Toobin.  But every now and then there's an article that's not directly related to the law that has application to advocacy or advocacy teaching.  I'd like to call your attention to two such recent articles.

In the March 9, 2015 issue there's an article titled "Frame of Reference", written by the inimitable John McPhee, one of my favorite authors.  McPhee writes on a myriad of subjects and his economical but stylish writing is always a treat.  This article discuss the fact that different people understand – or don't understand -- what someone is talking  or writing about depending on the listener's  or reader's frame of reference.

Thematic Foundations for Advocacy Courses

Designing an advocacy course is a challenging task. One of the panels at the recent EATS conference addressed issues of course design and implementation. The panel consisted of advocacy professors from several law schools: Chris Behan (SIU), Megan Canty (Loyola-Chicago), Rafe Foreman (UMKC), Wes Porter (Golden Gate), Adam Shlahet (Fordham), and Gwen Stern (Drexel). Wes and I were supposed to participate from San Francisco via Skype but ran into technical problems. The remaining panel members had to operate under a bit of a time crunch. Prior to the conference, however, we each prepared extensively for our presentations, developed a structure for our panel, and created handouts for distribution at the conference.

What I hope to do in the next few blog posts is to provide for our blog readership the handouts we created for our panel presentations. We built all of our presentations on the idea that there are common thematic foundations for all advocacy courses: certain elements that the course designer must include in order to be successful. There are also some common pitfalls, dangers, and trouble spots to be aware of and avoid if necessary. On that foundation, we then prepared presentations pertaining to different advocacy courses based on trial phases. In other words, we started with pretrial advocacy courses and ended with appellate advocacy courses.

Why Are Lawyers So Dramatic: The Sequel

Since posting about dramatic lawyers yesterday, I've received some thought-provoking emails from friends. I thought I'd follow up on the post with some additional thoughts.

First, to those of you who commented favorably on my new status as a centerfold, especially given my age, girth, and so forth: Thank you. It is heartening to know that we centerfolds have supportive networks of friends and family who will be with us throughout the process.

Second, on the subject of drama, my friend and colleague Tom Leggans provided some great insight. Tom is an Assistant United States Attorney and a member of our trial advocacy faculty at SIU School of Law. He is a phenomenal trial lawyer and teacher. Here are Tom's thoughts:

Using Checklists in Advocacy Teaching and Practice

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In 2010 Atul Gawande, a Boston based surgeon, published his ‘The Checklist Manifesto: How to get things right”  [Henry Holt and Co. LLC, ISBN 978-0-8050-9174-8]. The point of the book is that customised checklists help us all – no matter how experienced and clever – to do the job better.

There’s nothing new about checklists. For lawyers there is much transactional law that lends itself to ‘doing by numbers’, a reality that encourages the profitable use of paralegals.

For advocates too the notion of checklists is also well established. A trial note book is a super checklist, inside of which there are sub checklists and far too much distracting detail. Having sat grudgingly through a number of presentations on the necessity for a trial note book and the need to have it tabbed and colour coded etc. etc. ,  I did not expect to find a book on checklists interesting, let alone a successful change agent for how and what I teach.

Gawande’s insight is the bleeding obvious (with hindsight), namely that a checklist is only as good as its immediate relevance to the user.  Take the weekly shopping list – whether it be the adhoc list of items scribbled on the white board fridge magnet, or that new cell phone app you’ve been playing with that lets you put items against various categories on that shiny, bright little screen.  The former probably works better than the latter unless you can readily change those app categories. Why is this so?  The app categories are generic and are not the best fit for your shopping preferences.  There’s a best fit checklist in your head that reflects both your categories AND where you’ll find them in your supermarket.

For so long as you shop alone and you know what’s missing from your home shelves then your ‘inside the head’ checklist is very efficient.  The problem arises when you share the shopping: your ‘assistant’ is not inside your head, doesn’t share your priorities for filling the missing spaces on the shelves, doesn’t tour the supermarket in the same idiosyncratic way that you do, and probably wants to move along some of those shelf items and stock a few items of which you do not approve.

There are ‘would be’ high flyer advocates who share with some aspirant surgeons the misconception that theirs’ is a solitary craft for genius, overlooking that without continuous teamwork nothing notable is achieved. Developing and sustaining that teamwork is a high order application of sharing the shopping journey. The method is to start with the generic (like the app shopping list) and then tailor that checklist to the needs of the team so that it’s there, being easily and helpfully applied, during the preparation and during the performance.

By the way it’s a misconception to believe that such a checklist cuts off the capacity to be creative.  To the contrary, with everyone knowing what they are doing, and why, there is the opportunity to search for a better way.  And, having found it, the checklist is updated.

As advocacy teachers we can use checklists both for trial preparation and performance sessions. By showing that it works it is more likely (I hope) that our students will then carry over the habit into their practice. My present plan is to create a checklist backbone, to which students (and other teachers) can add such ‘reinforcing’ and finishing detail as meets their changing needs.

Paying false homage to my blog colleague Charlie Rose’s commitment to a rule of three I introduce the substantive part of this article by calling upon the 3A’s ( the advocacy teacher’s response to the 3R’s).  We have adversarial, audiences, and anticipation as the three touchstones of our craft.  I’ve yet to find a way to properly use this insight but astute readers may find a way and share it in the Comments box.

Within our adversarial system we define a contest within the legal elements of each cause of action or charged offence that is before the court. But that’s not the only foundation concept to which the student must pay attention. There is also, and always, identification of audiences and the respective objective needs and subjective wants of each audience. That this is so is readily seen as this article is being written by the hype around the forthcoming trial of a recent head of the IMF who engaged a hotel staffer who entered his New York hotel suite. Whether what then happened was an outrageous abuse or a consensual fling is for a New York jury to decide. The legal teams for both prosecution and defence are doing their darndest to create atmospherics for the audiences that give their side some advantage in the public space that is the media.

That leaves ‘anticipation’. This is a concept with several implications in the advocacy concept.  It is clearly difficult to grasp – the proof of that being the daily performances of too many advocates who clearly don’t have a clue about even one such implication. ‘Anticipation’ requires an advocate to recognise what their competent opponent would do and either prevent it, or minimise the amount of damage that their opponent can do.  The problem is that the less than competent advocate lacks the capacity to discern what a competent advocate would do, no matter for which party they act.

‘Anticipation’ also refers to what the good advocate will set up in each of their audiences: a sense of a case that is well prepared, will be well delivered, and which will be persuasive.  (There is a third aspect of anticipation to which we will turn later.)

The foundation of elements, atmosphere, and anticipation leads into a checklist of ‘required’ evidence. Both sides must engage in this task: one side to make sure they have it, the other side looking for the bit that is missing, or the bits that are there but are, for one reason or another, compromised. Hence the checklist requires the lawyers to look to the sources of evidence and then objectively evaluate the ‘weight’ that each bit bears.  So, early in the piece, there are reasons for advocacy to be taught tethered to an evidence course.  How better to understand the critical place of ‘credibility’ as a basic evidence concept than to see in the course of practising the art of cross-examination that a critical mass of mud on the face of the messenger is so very effective to cast doubt on the strength of his or her relevant and admissible message.

Given the sources and their perceived strengths and weaknesses the advocacy student must then consider the interwoven concepts of, ‘What is the most persuasive order in which to present this evidence?’ and, ‘How do I minimise on direct the target size of my witness who will be cross-examined when I finish?’ It’s at this point that the student is applying the guideline, ‘Start with your best, finish with your second best, and wrap the weak stuff in the middle’.

Following this skeletal approach the student should be able to run ‘trigger’ points from her or his checklist that bring to mind the topics of factual material that need to be drawn out from one or other witness in a predetermined, persuasive story.

With the law and fact content settled, a student advocate needs to pay attention to the presentation aspects of both their and their witness’ performances. For the novice this means that the checklist includes how their anxiety is going to be masked. It may include such detail as, ‘Are my feet and that of my witness facing towards the decision maker?’ ‘ Do I and my witness have a half glass of water handy?’ ‘Are we both able to bring our voice speed down to a good court room speed by syncing our toes with our voice speed, and having a note that has ‘SLOW’ written vertically on the page?’ and, ‘Am I now entering that 3D space with my witness to recreate for the audiences in this court room a past experience of the witness that is being retold by us today?’ That amount of detail is only necessary for the newbie.  The more experienced, where such preparation is automatic, merely writes:  ‘control anx’ to cover for that rare occasion when the automatic deserts them. That’s the beauty of the customised checklist: it’s there when it’s needed.

The checklist may also include a reminder about clothing and artefact such as tattoos and body piercings: doing whatever can be done to keep a prejudice in the audience turned off.

That done there is the checklist point about how and how early to introduce visuals that will entice the audience into a story that they can now ‘see’ as well as listen to.  There’ll be a cross link to that evidence topic of ‘more prejudicial than probative’ to remind the advocate who loves gore that some in their audience max out with a ‘low level violence’ rating.

Slipped repeatedly into this sequence will be the message, “Reassess your position. Should you now reinforce, back up, shift focus, or move forward?” That’s the essence of having our students acquire the inner knowledge that all good advocacy is both reactive and pro-active to the immediate environment.

Making or not making objections to questions or assertions by the opponent is another application of the reactive/proactive approach.  The common objections lend themselves to a checklist.  Introducing that list – for the novice- are two questions: 1. Do I have a good faith basis for this objection? AND 2. Do the tactical benefits (now and for possible appeal) outweigh any tactical downside (such as antagonising a jury)? Once again the ‘objections’ checklist provides a good link with the parallel evidence learning.

By dint of explication and repetition above I hope that it is clear that this article does not endorse generalised checklists of the sort that might be otherwise called templates or precedents.  Sadly, but fortuitously for adept advocates, there are plenty of situations where the witnesses have used such generics.  Sometimes the advocate just knows that the witness will have followed, for good or ill (and usually with their assessment brain in the ‘off’ position) some inappropriate checklist. It is good to anticipate such a witness because worse than no checklist is the slavish following of the wrong one. The cross examination of such a witness must eschew belittling but leave the other audiences in no doubt as to the lack of witness credibility.

Our students need to know that a checklist is a map for macro items and a reminder of those things that are important to the student at and around the time that the checklist is prepared.  Just as effective CV’s change with time so should a useful checklist.

A useful checklist uses topics (just like the agenda for witness examination).  It is short (like an opening and a closing). It is easy to find.  It will do either or both of: ‘Do this and confirm you have done it’, or, ‘Read this and do it’.  It does not include explanation because that is a given before the checklist is prepared. Just as teacher and student find it useful in basic training, so later that student, now an advocate, can make it useful for advocate, witnesses and anyone else on the team.

I can see an advocate walking up the stairs to the court house. The mobile phone is open, they have closed out the non work apps and they are looking at their pre-court checklist. There are many things on their mind.  Fortunately the last item is, ‘turn this thing OFF’.

Hugh Selby ©  June, 2011.

Co-opting their witnesses to your case: your argument is your cross-examination

Memorable cross-examination is a fusion of an advocate’s passions: a passion to live a life made richer by absorbing and applying the lives of others; a passion to understand the law; and, a passion to capture the minds of audiences by taking them -through the medium of the target witness- into the advocate’s narrative, exquisitely blending that law and the necessary facts of life.

Readily forgettable cross–examination is the all to common approach of an unsubtle verbal attack upon the witness. There is an assumption that the audiences, including judge, jurors, and media, will be impressed by the battering ram technique: the mere sight of a witness being distressed by the process is taken as success. The problem with this approach is that it ignores the necessity for the cross-examiner to have the audiences adopt the cross-examiner’s case narrative. The undermining of an opponent witness’s credibility may be a means to that end but as an end in itself it is inadequate.

A witness reduced to tears may be a sign of cross-examination failure or success. If the audiences are empathising with that witness then the cross has failed. The tears have diverted the audience from the narrative to the witness. If, however, the audience now believes in the cross-examiner’s story, and sees the tears as being the waters of contrition, then the advocate has won.

From an advocate’s point of view the role of the witness in cross is to be the amplifier of the advocate’s persuasive narrative. The advocate puts their argument, disguised as questions, to the target witness. That witness’s verbal and non -verbal responses should confirm the strength of that argument in the decision audiences’ minds. The sweetest point for the advocate is when it no longer matters what the target witness answers. If they agree with the question then that confirms the audience perspective. If they disagree or prevaricate then this confirms the audience opinion that the witness lacks credibility.


The Scenario

As a vehicle for explaining and applying an approach to cross-examination let us take a scenario in which one man, A, owed another man V a debt. When asked at a bar by V to pay, A refuses and V decides to persuade A otherwise. To that end V and an associate W, arm themselves with bats and go looking for A on V’s motor bike.

V and W see A riding on his motorbike. A sees them, stops and gets off his bike. V and W do likewise. They approach A and beat him. However, A has a large knife under his motorbike seat. He gets the knife. He stabs V twice in the chest causing serious injury. He also stabs W in the upper back.

A admits the stabbing but raises self-defence. The onus is on A, on the balance of probabilities, to show that he believed at the time that his stabbing of V and W was necessary to defend himself and that it was a reasonable response in the circumstances. It follows both that the defence cross-examination of V and W must explore ‘self-defence’ and that A will give evidence – thus allowing the prosecutor to cross-examine him.


How to Prepare and Perform

For the defence advocate the task in cross-examination is to persuade the audience that the ‘self-defence’ claim is credible. If successful then A may be able to show the court when he gives evidence that he believed at the time that his repeated use of the knife was necessary. Of course, his following cross-examination by the prosecutor may destroy that interpretation. Preparation is the key – for both sides.

A cross-examiner should, whenever possible (and that’s often), co-opt the witness to advance the cross-examiner’s narrative. The way to achieve this is for the cross-examiner to locate a neutral time and place – a back story- and then incrementally advance the story line showing, question by question, its plausibility.

A defence who is instructed by their client to ‘make them prove it’ and who deliberately avoids obtaining any detail from their client is often much assisted by a prosecutor’s failure to adequately develop their story on direct. That failure means there are gaps in the story – so that the audiences and the defence are free to insert new detail as it is ‘created’ during the cross-examination.

A defence is also assisted by the prosecutor’s failure to recognise and minimise the weaknesses in their witnesses. Such failure allows the defence to focus upon and magnify the import of these weaknesses during cross-examination.

Suppose that the prosecutor has lead the story as recounted above, but failed to spend time both on the full conversation when A refused to pay, and upon visualising the location where the incident occurred, other than to say that it occurred on the side of a road at night. Here is a sample of cross-examination of V by the defence that is built upon that foundation of prosecutorial neglect.

Topic heading: I’ll be exploring the chat at the bar, your riding around on the bike, and the fight.

Q. You, and W and A had met at the bar a couple of hours before the incident?
Q: A arrived there after you and W?
Q: So you and W were ahead of him with the drinks?
Q: And his arrival reminded you that he owed you money?
Q: Money that you’d asked him to repay before?
Q: So you went up to him?
Q: You asked him for the money?
Q: And he didn’t give it to you?
Q: So you decided that he needed persuading or your money was gone?
Q: Because ‘being nice’ hadn’t got you your money?
Q: Being ‘less nice’ might require a bit of a threat?
Q: And the bats, you thought, would do that?
Q: You and W picked up a couple of bats?
Q: So the two of you, with those bats, rode around on your bike?
Q: And, being lucky, you saw A?
Q: On his bike?
Q: Alone?
Q: Without a bat?
Q: And he saw you?
Q; Stopped?
Q: Got off his bike?
Q: You got off your bike?
Q: Both of you?
Q: Bike engine off?
Q: Each holding a bat?
Q: Two to one?
Q: Seemed perfect?
Q: He went back to his bike?
Q: Lifted the seat?
Q: Did you think he’s getting the money?
Q: You go up close?
Q: Both of you?
Q: Each with a bat?
Q: He pulled out a knife?
Q: Not so perfect anymore?
Q: He’s not getting money out?
Q: He needed more persuading?
Q: The two of you advanced?
Q: You didn’t go back to your bike?
Q: Two bats to one knife?
Q: Should have been easy?
Q: But he put up a fight?
Q: And your luck ran out ?

Let’s suppose that the defence advocate is careful to build a complete picture on the direct of A, a picture that reflects the above cross-examination. Now it’s the turn of the prosecutor to cross-examine A. The ‘back story’ makes use of the bikes and the money.

Topic heading: I’ll be asking you about your thoughts.

Q: Have you paid V the money yet?
Q: The night at the bar V’s demand for the money was clear?
Q: And your refusal was clear too?
Q: So you think the money was yours?
Q: You earned it?
Q: Anyway, as you told us, you saw both V and W on W’s bike later that evening?
Q: Each of them holding a bat?
Q: And they followed you?
Q: And you were alone on your bike?
Q: Make you think about your safety?
Q: Office Harley told us that both bikes were the same engine size. You agree with him?
Q: So, if you wanted to, you could have opened up the throttle?
Q: And ‘left them for dead’?
Q: But you didn’t open up the throttle?
Q: You closed it?
Q: Switched off the ignition?
Q: Got off the bike?
Q: Leaving the knife handy in the compartment under the seat?
Q: Drew them up close?
Q: Let them think they were going to get theirs?
Q: Got the knife out?
Q: This one – exhibit X?
Q: Thrust it into V?
Q: Pulled it out?
Q: Gave him and W quite a shock?
Q: Pulled them up?
Q: V couldn’t swing that bat anymore?
Q: You stabbed him again?
Q: W holds up V?
Q: The bats are on the ground?
Q: Both of them?
Q: You get W too?
Q: From the back?
Q: So you stabbed him in the back?
Q: When he was holding V?
Q: You reckon they earned it?
Q: Lucky they weren’t left for dead?

The preparation approach in both these crosses has been to ask, “How can the target witness’s story be ‘fitted’ to our story?” The questions then integrate the bits of their story that mesh with ours, as well as explaining/exposing/ridiculing the contrary aspects.

The delivery of the cross questions reflects the following useful guidelines to cross-examination:
• Be mindful of your audience/s;
• Be nice as long as possible;
• Be clear as to what you mean;
• Be incremental, building from a sure foundation;
• Be helpful to the audiences by using topics to share your structure;
• Be a user of closed questions so as to get the shortest of answers: ‘yes’, ‘no’, or ‘don’t know/recall/remember’;
• Be focussed so that the target and the audience are drawn ‘into and through’ your story;
• Be manipulative so that your story is highlighted where you want it to be; and,
• Be a persuader so that it is your story, as embedded in your questions, that stays in the audiences’ minds because they ‘knew’ the right answers even before the witness uttered the right or wrong answer.


Message or Messenger: must one prevail?

While many advocates aspire to be charismatic, and thus deserving of attention, most of us must make do with being nothing out of the ordinary. It follows that instructions to make you, the advocate, the centre of attention are counter-productive.

Rather more useful is, ‘how to make good use of those talents we’ve got’, especially when the target witness has been brain washed by popular culture to expect that cross-examination will be a ‘battle of wills’ and a ‘stare down’.

For those of us not endowed with film star looks and the physical attributes of sport heroes and heroines the following pointers may be useful:

1. Forget about looking directly at the target. Give yourself a whole lot more mental space by looking into blank space – such as a blank wall. Then engage with the target by listening to and absorbing their reactions to what you are saying. Glance at them to confirm your interpretation.

2. It’s quite common for a cross-examiner to be ‘fuelled’ by the target’s answers. A result of that ‘fuelling’ is for the time interval between the target’s answer and the next question to get shorter and shorter to the point where there seems to be no gap. This is bad for the cross-examiner. If you have this habit then position your feet so that you swivel on your hips to face the target: when you get too excited you can look down and away. You need the time between last answer and your next question to reflect on what the answer means so take a sip of water, look into the blank wall, think, and then open mouth.

3. Be slow.

4. Forget that so-called rule, “Don’t ask a question to which you don’t know the answer”. Cross-examination, the sort that has you humming, requires the ability to seize unexpected opportunities and to manage risk. So you’ll ask questions to which you don’t know the answer when it’s your assessment that the worst possible answer will leave you no worse off. It may, of course, leave you much better off. And when might this happen? Three examples follow.

The first is when your case has come apart. It’s a lost cause; however, go fishing on cross-examination and a miracle might occur. The miracle cannot occur if you do nothing.

The second is a scouting exercise to decide whether to stay on the known track or follow a diversion. The method is to ask a question or two (incremental and requiring ‘yes’, ‘no’ or ‘don't know) which allow a quick and safe retreat, or, if the answers are good to take the new path.

The third, final example is when your case has gone so well, or the witness being cross-examined has gone so badly, that asking the most open question, ‘Why?, will draw an answer that, no matter what it is, will confirm for the audience your assessment of this witness. As mentioned above, there is great satisfaction when you allow the audience to confirm by itself, listening to the hapless witness, the preferential attractiveness of your case narrative.

Hugh Selby ©
December 2010.

More on Language ,Word Choice, and Persuasion

by
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.

Word Choice and Persuasion

This post was written by Professor Joe Lester, Director of Advocacy Programs & Professor of Law at Faulkner University in Montgomery, Alabama.


It is not what you say that matters, but rather what the jury hears that counts.

My seven-year-old boy Christian was in the back of our family van singing “chicken nugget, chicken nugget.” While the words were peculiar, the tune was familiar. When asked what he was singing he merely repeated “chicken nugget, chicken nugget.” Figuring it to be a song from his imagination I wondered about the origin – fearing it was going to be a request for fast food. I was surprised to hear him say that he did not make up the song; he heard it on the radio. He once again sang “chicken nugget, chicken nugget” but this time the tune struck a chord. “Christian,” I said, “I am pretty sure the words to that tune are ‘Rick and Bubba, Rick and Bubba.’” The song was an advertisement for the national morning radio show. Christian laughed and told me that I was being silly and that I did not know what I was talking about. He then sang once again “chicken nugget, chicken nugget” this time with a slight giggle as he believed his father to be from another planet.

How many times does our story-telling fall off-track because of unintentional miscommunication? Students often do not give enough attention to their choice of words. When our language is sloppy we lose the ability to control our message. To illustrate this point I do the following exercise.

I ask my students to yell out the first thing that comes to their mind after I give a description of a person. I then say the following one at a time after waiting for responses from the class after each: the woman who takes care of my children; the woman who cleans my house; the woman I hooked-up with last night; my first wife; my current wife; my life partner; my best friend; and my co-pilot. All of these are descriptions of my wife (FYI: don’t ever actually introduce your wife as your “first wife” unless you want to sit alone for the whole evening). But each of these phrases has baggage. They lead the listener to make incorrect assumptions merely because of the sloppy language. Is this really a danger? Absolutely. It only takes one juror perceiving the evidence in a contrary manner to hang the jury.

The inferences a jury draws should be carefully crafted by the advocate so that they can persuade the whole group. Leaving individual jurors to draw inferences based solely on their own experiences will diffuse the effectiveness of the presentation. I often use the common exercise of having a student try to describe a person in a picture to the class to see if they can get the jury to all visualize the exact same person. One time a student described a person in the picture as a “typical Auburn student.” I could see by the reaction of the class that the description created many different images in the students’ minds. That comment produced a wide spectrum of images ranging from very positive to very negative depending on their predisposition regarding the Alabama/Auburn rivalry. While it made perfect sense to the story-teller the listener was confused. Confusion does not assist persuasion.

So how do you check your language? A simple solution would be to bring in an outsider to observe your presentation. Stop periodically to ask the outsider what they know and what they think the case is about. If your story and the outsider’s story match, your language is sufficiently precise. If they do not match, you have to identify the problem language. To make that task easier ask the outsider often what they are thinking -- not just at the end. Just because it was said, does not mean it was heard. At the end of the day all that matters is what the jury hears.

You can’t stop a wildcard like Christian from misinterpreting the information, but you can minimize the danger by carefully selecting your words and understanding that everything the jury hears will leave an impression. Just make sure it is the one you meant to leave.

The Importance of a Clear "Ask"

Another gem from Bob McGahey:

From Adam Gopnik’s article on Churchill in this week’s New Yorker:

Seventy years ago this summer, in June of 1940, an aging British politician, who for the previous twenty years had seemed to his countrymen to be one of those entertaining, eccentric, essentially literary figures littering the margins of political life, got up to make a speech in the House of Commons. The British Expeditionary Forces had just been evacuated from France, fleeing a conquering German Army—evacuated successfully, but, as the speaker said, wars aren’t won that way—and Britain itself seemed sure to be invaded, and soon. Many of the most powerful people in his own party believed it was time to settle for the best deal you could get from the Germans.

At that moment when all seemed lost, something was found, as Winston Churchill pronounced some of the most famous lines of the past century. “We shall go on to the end,” he said defiantly, in tones plummy and, on the surviving recordings, surprisingly thick-tongued. “We shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.” Churchill’s words did all that words can do in the world. They said what had to be done; they announced why it had to be done then; they inspired those who had to do it.


Read more at the New Yorker


Bob