One of the great weaknesses of the civil litigation process is its near-total reliance on language. The vast majority of civil lawsuits are resolved, either by being dismissed or settled, before any party or witness testifies before a judge or jury, a process which is largely dependent upon written filings, transcripts of testimony given outside the presence of the judge or jury (that is, depositions), and, to a limited extent, oral arguments made the court hearings.
As Dinosaur Comics lucidly explains:
(Hat tip, Language Log.)
Take a couple recent examples of the problems of language:
The crux of Martin’s argument involves semantics. It takes issue with the imperfect terminology we use to describe the emotional state that humor triggers. Standardizing language would help humor studies earn the respect of related fields, like aggression research. Martin exhorted his audience to adopt his preferred word for the “pleasurable feeling, joy, gaiety of mind” that humor elicits. Happiness, elation, and even hilarity don’t quite fit, to his mind. The best word, he said, is mirth.
Former Republican Sen. Rick Santorum announced Wednesday that he was forming an exploratory committee for a possible presidential run. His slogan was, and remains on his website, “Fighting to make America America again.”
Hughes, who died in 1967, was an African American Communist who advocated for civil rights and social justice. A key figure in the Harlem Renaissance, Hughes may well have been gay; some of his poems were homoerotic and others defended gay rights.
Boredom is a dangerous subject for any writer. When Jonathan Franzen told a journalist that “Dave died of boredom”, he was condemned by internet commentators who felt that he was belittling his friend’s illness. But The Pale King is, among many other things, the record of a struggle against all the things that “boredom” comes to stand for in this novel: disengagement, distraction, isolation, an inability to feel. The world of boredom is a world without love, without human connection. It would be a simplification to see it as a metaphor for depressive illness but the two are intimately bound together.
So when I begin, I usually improvise a melody and sing words—and often those words are just clichés. If it is an old songwriting cliché, most of the time I throw it away, but sometimes I keep it, because they’re nice to have. They’re familiar. They’re like a breather for the listener. You can stop wondering or thinking for a little while and just float along with the music.
Many biologists find these assertions baffling. Said David Queller, a biologist at Rice University who spearheaded the letter to Nature that was signed by 136 other scientists: “At some really fundamental level I don’t understand what Ed Wilson is trying to get across, and I think that’s the response of most of the community.”
That’s exactly the problem, according to Nowak, whose new book, “SuperCooperators,” co-written with Roger Highfield, summarizes his work as a mathematician on the origins of advanced social behavior. “They don’t know what they’re arguing against,” Nowak said recently at his office, where an oversize print of the Nature cover hangs on the wall. Specifically, Nowak explained, the critics don’t understand the math, and moreover, they don’t realize that the math is the most important part.
In each one of those, the meaning intended by the speaker was either consciously (like with the humor professor, or Paul Simon leaving in “cliched” lyrics) or unconsciously (like with Franzen and Santorum) different than the interpretation by the listener. (Those are all great articles, by the way.)
The most common advice given to public speakers, including trial lawyers, is: keep it simple. Don’t oversimplify anything, but make your arguments as concise as possible, limit your use of obscure terminology, and adopt a plain-spoken manner. “As simple as possible, but not simpler,” as Einstein would say.
Some cynics view that as a dumbing down of their arguments for judges and juries, but it’s not. It’s a matter of figuring out what your argument really is (“If I had more time, I would have written a shorter letter” — T.S. Eliot) and of properly communicating it, particularly in the stilted, formalistic situation of a trial.
There’s no easy solution; nothing a lawyer does today or tomorrow or next week will suddenly make them better at communicating with the jury. The best solution, though, is a simple one: know the subject well enough that you don’t have to try to say anything, you can just say it. The more natural your language — whether filled with terminology or not, and whether filled with compound sentences or not — the more likely it is that the idea in your mind will make it successfully to your listener’s or reader’s mind.
If you can think about it clearly, you’ll be able to express it clearly.