January 23, 2024

Podcast - Effective Trial Language Part 1: Noise

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small explains the importance of being concise in the courtroom. He describes how to eliminate unnecessary words and noise so the audience, whether it be a judge or jury, can focus on the substance of the material being presented.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Too many lawyers talk too much. That's just the bottom line. Every unnecessary word, every word of noise that you utter, adds to the length and complexity of the trial, detracts from your presentation and obscures your meaning. Why? Because if everything is important, then nothing is important. Because it requires effort to listen to unnecessary words and to extract what actually matters. And why would you want the judge or jury to have to go through that process? The more time you waste on things that don't matter, the less time and attention will be available for things that do matter. It's your job to eliminate as many unnecessary words as you can. Eliminate noise so the jury won't confuse and can focus on substance.

The most obvious place to eliminate noise is with your questions. You may or may not be able to do much about the witness' answers, but you can control what comes out of your own mouth. Don't festoon your questions with balloons and ribbons, with words and phrases that add nothing but length and complexity.

Consider, for example, just a few alternative ways of asking the same question.

Question: Can you please describe, if you would, and using your own words, just what you observed on that occasion? (That's 19 words.)

Alternate: What did you see?

Question: At this time, your honor, the defense would like to offer into evidence for the jury's consideration what has previously been marked for identification as Exhibit 14 to this proceeding. (That's 30 words.)

How about: I offer this as Exhibit 14?

The same principle applies to openings and closings.

Ladies and gentlemen of the jury, I expect that the evidence that we will put before you will show you through testimony and documents that Mr. Smith was generally considered to be an excellent employee. (I lost track of how many words that is.)

But how about: Mr. Smith was a wonderful employee.

Opening: I suggest to you that the weight of the evidence demonstrates beyond any doubt that Mr. Jones is not a credible witness. (That's 22 words.)

How about, Mr. Jones is a liar.

A few extra words here and there may not seem like much, but they matter in the short term. They obscure your message. Over time, the cumulative effect is deadening. The jury starts to lose focus and their attention drifts off from the important work you are trying to do.

Being short, direct and effective is not as easy as it sounds. It takes time and practice and hard work. President Woodrow Wilson was once asked how long did he spend preparing his speeches. His answer? Well, that depends on the length of the speech. If it's a 10-minute speech, it takes me two weeks to prepare. If it's a half hour speech, it takes me a week. If I can talk as long as I want to, it requires no preparation at all. I'm ready now.

Learn from that wisdom. Take the time to truly be ready. Pare away relentlessly at the length and complexity of every question and every statement you make in court. Getting rid of extra words requires constant vigilance and careful discipline. No one will get it exactly right, but it is one of the basic elements of effective communication. Short and sweet.

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