Podcast - Effective Trial Language Part 3: Jargon
In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the use of jargon within a courtroom. Mr. Small goes over the negative impact that it can have on the jury and explains why it's important to try to keep it at a minimum. He also illustrates how jargon can be used to one's advantage if there is no way to avoid it.
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.
Every profession, every occupation, even every region, has its own specialized language or jargon. Within limits, jargon can be helpful, especially so to those within the field. If you're an engineer at an engineer's meeting, you want to speak the language of engineering. Lawyers may use phrases such as "substantive," "due process" or "Chapter 93a letter," because they're useful shorthand expressions for concepts that normally do not need further explanation. Physicians may use "patella" instead of "kneecap" or "myocardial infarction" instead of "heart attack" for the sake of precision and to ensure clear communication with other medical professionals, but jargon often obscures rather than enlightens. Take that engineer out of the conference of engineers and bring them to a local bar. He needs to talk a different language.
Sometimes people want to obscure their meaning. Other times they want to sound important or superior. Whatever the reason, jargon in the courtroom creates two dangers. First, jurors may not understand it, and second, jurors may dislike it and dislike the person using it. Think about it for a moment from the perspective of the juror. When a witness or a lawyer lapses into jargon, lawyers often say, oh well, that interferes with their communication with the jury, their connection with the jury. No, it's much worse than that.
When a witness or a lawyer lapses into jargon, it leaves juror number six with three bad options. Option one, juror number six tries to puzzle it out, spends the next few minutes distracted from the trial — in which case, why did you present that other evidence? Number two, juror number six just ignores whatever the speaker might have said — in which case, why did you have him say it? Or number three, juror number six decides that the witness is a jerk and ignores everything that the speaker has to say. None of these is a good option.
As a general matter, people don't enjoy feeling lost, confused, intimidated, shut out or stupid, and they don't usually react well to people who make them feel that way. To some extent, jargon is unavoidable.
To paraphrase the old Yellow Pages advertisements, if it's out there in the real world, it winds up in here in the courtroom. But that doesn't mean you can't do anything about it. You can work with your witnesses to try to recognize the jargon, anticipate it and reduce its use, and you can ask your witnesses to stop and explain themselves. You can use charts and graphics to help explain jargon when you can't avoid it.
Consider one example.
Question: What management position did you hold?
Answer: I was responsible for all R&D projects for the BASU for filler metals.
Those words mean something to someone. Obviously, this witness thinks he's given his job description. The lawyer probably knows what it all means too. But in just one 13-word answer, there are three sets of jargon, none of which may be understandable to juror number six.
The next few questions out of the lawyer's mouth should require the witness to explain himself, asking him, well, what does R&D mean? Tell us about that. What does BASU stand for? Or what are filler metals? How are they made? Where do they come from? If the lawyer doesn't take the time to do that, as far as a jury is concerned, the witness may as well be speaking in Urdu or Czech.
Not all jargon is alike. Some is worse than others. And how jurors react to it depends somewhat on the subject matter. Medicine is filled with jargon, and jurors know that they're more likely to understand some of it and be somewhat more forgiving to the witness when they don't understand. Jurors may not understand engineering or scientific jargon, but they know it exists, and they're less likely to think the witness is showing off for no reason.
Are they likely to be as forgiving of business and management jargon? Social science jargon? No, not so much. Not all jurors are alike. Computer terminology, for example, may be absolutely incomprehensible to older jurors, even if some of the younger ones understand it completely.
Nonetheless, you should never assume that any juror understands any witness' jargon. Stop and explain. When it's not possible to avoid jargon, listen carefully enough to the speaker, including yourself, to recognize it, stop and turn an obstacle into an advantage. Prepare your witness to be interrupted so they're not disturbed by it and they understand why you're doing it. Once you've stopped, jargon may provide an opportunity to linger over an important subject to talk about its history, its meaning, its significance. Sometimes the origin of the jargon word itself is helpful. In short, avoid jargon when you can, but take advantage of it when you can't.
So beware of jargon. Make sure that you yourself are speaking clearly. Prepare your witness as best you can to speak in plain English. If your witness uses jargon, have the witness stop and explain it immediately. The point, as always, is to communicate effectively, not to show off or dazzle the jury with your big vocabulary. That won't get you anywhere.