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Would you say the following sentence to a witness?
On the morning of January 3rd, you did, didn’t you, meet with your General
Counsel and were you not told to cooperate with the impending investigation,
after which you sent an email instructing employees to do the same, is that not
so, sir?
This question, asked of a corporate executive, remained unanswered. And
not because the witness was uncooperative or hostile, but because he was unable
to follow the question because of the confusing language that the lawyer used.
This question provides a perfect example of what NOT to say. Lawyers are
generally comfortable with complex locutions. But, it may be harder to
remember that just plain folks, the people who make up juries and who serve as
witnesses, have trouble understanding questions comprised of several phrases,
complicated negatives, and complex syntax (questions within questions, embedded
suppositions).
In order to communicate, there must be an exchange. The listener has to
understand what the speaker is saying, which means that the listener has to
understand not just the information being transferred but the way the
information is encoded in language. If the speaker speaks and the listener
does not understand, communication has not occurred. If there is no
communication and no understanding, no information or argument can be effective.
People’s language skills are varied, and influenced by ethnic background,
regional geography, level of education, age, gender, and other social factors.
Since juries are comprised of people of different language skills, it is
important to learn to adapt your speaking style to the needs of your diverse
audience.
Everyone adjusts their speech style to their audience – usually unconsciously.
If you are talking to a judge or another lawyer, you probably use a style that
differs from one you use if you are asked to explain your job to your child’s
third grade class or to the person who cuts your hair. A talented lawyer
is able to translate complex ideas into simple language because the goal is to
be understood. It is generally accepted that “ordinary” people, and
especially those who are not native English speakers, have language skills at an
elementary school level. One of the purposes of sociolinguistic analysis
of legal speech is to provide attorneys with “translation guidelines” for the
courtroom setting:
Here are some useful guidelines:
1. Use simple vocabulary. Although the courtroom is a formal venue,
and may encourage specialized language, it is important to use plain English
when communicating to a jury. Plain English implies no legal jargon or
technical terminology, but simple and straightforward vocabulary. For
example, “it is more likely that” is clearer than “a preponderance of the
evidence”; “support” is clearer than “corroborate.” Often, a lawyer has to
actually translate legal language into ordinary English to be understood.
What does “malice aforethought” mean?
2. Avoid irony, sarcasm, and metaphors. If they are subtle, they
may be lost on jurors and witnesses, and will simply leave people confused.
If they are too heavy-handed, they may backfire and reflect badly on your side
rather than the other side.
3. Use simple grammatical constructions. Not only word choice
but sentence structure should be kept simple. Subject-verb-object is best.
Passive voice is less understandable for many people than active and can result
in confusion of who did what to whom. Pronouns are not always clearly
referenced and should be avoided. Complex negation, such as double
negatives (“You failed to call the police, did you not?) can also be difficult
to understand. Long sentences are harder to process than short. Embedded
clauses are often misunderstood. “Front” (put in the beginning of the
sentence) the most important information.
4. Relate your points to jurors’ everyday lives. Examples,
illustrations, and analogies from “normal” experience may help to clarify
difficult concepts.
5. Tell your story chronologically. Chronological order is
best for presenting the “story” of what happened. Avoid going forward and
backward in time. What may be an effective literary device is not an
effective communication tool in spoken language.
These guidelines are based on decades of linguistic research. They appear
easy and obvious, but for speakers who normally use sophisticated speech styles,
they are actually difficult to follow. It sometimes requires time and
education to re-learn simple communication skills. However, for effective
courtroom presentations, they are well worth learning.
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