Podcast - Effective Trial Language Part 2: Legalese
In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the use of legalese in the courtroom. He advises attorneys to avoid using too much legal jargon when speaking to jurors in a trial because it can be confusing and distance the lawyer from the audience. Instead, he suggests using plain English as much as possible in order to effectively communicate with jurors.
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.
Chances are you didn't grow up speaking like a lawyer. But from the time you started law school, you have been consumed with a new and strange language, especially once you began working with other lawyers who have also been consumed. You've been immersed in legalese, and whether you realize it or not, all kinds of legalistic words and phrases have probably crept into your speech. Consider, just as a few examples: "subsequent to" instead of "after," "prior to" instead of "before," "held a meeting with" instead of "met," "on that occasion" instead of "then," "with regard to" instead of "about."
One of the most important rules of trying cases is to remember and to respect your audience. This is not a committee of highbrow lawyers. It's a jury. Normal people. Think about occasions when you talk to normal people. Family gatherings, strangers at a bar, whatever it is, you wouldn't talk to them that way. Or if you do, that's a separate problem. Indeed, those are the people you should talk about your case with and listen to their questions. And those are the people you should be thinking about when you are speaking in court.
If you want to try cases effectively, you have to weed out all that stuff out of your vocabulary. Use plain English. Don't use words that are more complicated than what you need. Legalese isn't just pompous and unnecessary. It's also confusing.
Here's an example from an actual trial.
Question: Under what circumstances did the defendant come to give you this check?
The witness looks confused. Do you mean, why did he give it to me?
The lawyer looks sheepish. Yes.
The witness gives an answer.
If the witness is correcting your questions, it's probably not a good sign. Because if the witness is correcting your questions, the jury is not understanding them either.
Sometimes legalese and occupational jargon come together for a one-two punch. Here's an example from a trial of a construction case.
Did you invoice the surety for a partial payment pursuant to the ratified subcontract?
Consider instead: Did you send a bill for your work? Where did you send it?
Some people view the bar as a form of mystical priesthood with its own special language and rituals. They may feel that an important part of being a lawyer is knowing the right incantations to be trotted out at the right times. Not all phrases can or should be eliminated. Some are necessary or serve as important signals to the judge.
For example, the lawyer may ask a witness whether there is something that might refresh his memory. In a normal conversation, you'd probably say something that would help him remember. But you use a legal phrase to make sure the judge understands exactly what the lawyer is trying to do under the rules.
Nor is all ritual language undesirable. For example, because a trial is a highly formal event, the use of some formal language lends an air of gravity and dignity to the process. Similarly, the use of phrases such as "your honor" or "may it please the court" serves to show respect for the court and the process. Other legalese is simply an essential part of your case. There's really no good substitute for "standard of care," even though without your help, most jurors don't really know what the heck it means.
But, don't incant legal words or phrases just because they sound lawyerly. Most of them serve no real purpose, and at best they waste time. What they really do is to distance you from the one group you want to be closest to, a jury of your peers.