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The Use of Language for Trial Lawyers and Their Clients, MAJ Trial Reporter (Special Issue 2019)

by Keith Mitnik and Eric Stravitz

Although many lawyers consider themselves wordsmiths, it is easy for us, in the crush of our daily lives, to become lax about our word choices. We hope the following pointers will serve as a useful refresher.

I. Use the strongest language that is accurate

--For example, if your client is in a crash with considerable visible property damage, call it a crash or a wreck.

--If there isn’t much visible property damage, call it a collision.

--But do not call it an accident, which, for some people connotes an act of God, when you are trying to prove that the Defendant chose to . . . not pay attention, blow the stop sign . . .

--Consider the example of texting while driving. Would you want to call it distracted driving (sounds like being momentarily distracted by a bug flying in the eye, a roadside attraction or the sound of an incoming text), or deliberate inattention not much different than putting on a blindfold.I

--Corollary: Try to phrase the defendant’s behavior in terms of choices that he or she made. --Consider the following spectrum of words characterizing an impact: touched—contacted (defense attorneys love these two)—struck—smashed—crushed—obliterated—destroyed. Again, choose the strongest words you can use without exaggeration.

--Corollary: Do not exaggerate or let your client do so.

--“Defendant stole her right-of-way.”

--Care Given v. Actions Taken or Actions Withheld

--Lift v. Lift and Transfer. In a medical setting, the latter includes the serious matter of maintaining control of the patient through the transfer.

II. Do not sound like a lawyer (unless you want jurors to make fun of you!)
  1. Avoid legalese

    --(A few) examples:

    --Prior to → before
    --Subsequently → after
    --Utilize → use
    --Approximately → about or around
    --Condition precedent → requirement
    --State . . . → tell us. . .
    --Observe → see, hear, taste, smell, feel
    --Vehicle → car, SUV, truck, van
    --Proceed → go, drive, walk, jog, run
    --Transpire → happen
    --Depicts or indicates → shows
    --Did there come a time when . . . → Did you . . .

    --Caveat: Use legalese sparingly to link your case to a term of art contained in the jury instructions, but make sure you define in plain language any terms of art for your jurors.

  2. Omit timid or precious phrases

    --“It is respectfully suggested” or “I submit to you…” → Simply argue your point, or use a less lawyerly transition (e.g., Now I’m going to talk about . . .)

  3. Use focused direct examination questions

    --“What, if anything, happened next?” → “After the truck went through the red light (“looping” the last answer in a line of questions), what was the next thing that happened?” (This avoids a narrative answer and potential extraneous information and properly repeats favorable information.)

  4. Be wary of contractions—the jurors may not hear them.
  5. Be brief, not lengthy.
  6. In opening statements, paint pictures with visual language.

    --Consider using some of the five senses: sight, hearing, touch, taste and smell.

    --Examples:

    --“Day after day, she sits in her room unable to move or get to the bathroom on her own…”
    --“He shudders with fear, pinned inside his car, crushed and deformed metal and glass all around him, not knowing if his car remained on the highway where it could be smashed all over again. . .”

III. Use active, not passive, voice.

--Caveat: Unless using passive voice to de-emphasize.

--Active voice: “Joe Smith saw the crash.”

--Passive voice: “The crash was seen by Joe Smith.”

IV. Consider Reverse Leading

--With some clients the catch-all question “What areas of your body did you injure in the crash?” may not elicit all of their injuries. If they leave out, for example, their right shoulder, instead of using a document to refresh their recollection, you can say: Let’s talk about your right shoulder. Tell us whether or not it was injured in the crash?

V. Use Wiser WordsII

Crash Cases

Head Snapped Back Suddenly: Don’t say whiplash. It sounds bogus. Don’t say flexion/extension injury. Of course, the neck bends. Say her head snapped back suddenly and unexpectedly.

Rammed from Behind: Don’t say rear-ended. It sounds like a run-of-the-mill mishap. Say rammed from behind. It sounds violent.

Not a Lot of Visible Property Damage: Don’t say low impact. It sounds harmless. Say not a lot of visible property damage. It taps into experiences where a body shop fixed those things they could find, but the car never ran the same after the crash; there is more there than meets the eye.

Normal Aging: Don’t say degenerative disc disease. It sounds like an unrelated, devastating condition. Say normal aging. It becomes a “so what.”

Metal Plates and Screws: Don’t say internal fixation. It sounds fixed. Say metal plates and screws or hardware. It sounds unnatural.

Road Hog: Don’t say negligent trucker. It sounds too lawyerly. Say road hog with a my-way-or-the-highway attitude. Everybody has dealt with those jerks.

Tailgating: Don’t say following too close. It happens every day in rush-hour traffic. Say tailgating or riding their bumper. It makes people’s blood boil.

Barreling Full Speed: Don’t say driving too fast for conditions. Everyone has done it. Say it was pouring, yet he was barreling full speed ahead. It sounds reckless.

Endangering the Motoring Public: Don’t say the defendant was negligent. It sounds like something that would come out of a trial lawyer’s mouth. Say there was one person who was the problem on the road that day, and it was the defendant who was endangering the motoring public. It evokes images of that maniac we all glare at while thinking, where’s a state trooper when you need one?

Minding Her Own Business: Don’t say my client was not at fault or she is not comparatively (or contributorily) negligent. It sounds like you’re ducking personal responsibility. Say: [insert client’s name] was minding her own business when she got rammed.

Completely Unrelated: Don’t say the defendant claims these injuries are pre-existing. It sounds reasonable and fits their theme. Say the defendant claims these injuries are completely unrelated. It brings to mind coincidence, which sounds unreasonable and strikes at their Achilles’ heel.

Taken or Lost: Don’t say compensation or compensate. It sounds like take-home pay from a job. Say this not about how much she is going to get; it is about how much was taken. What’s the fair value of what was lost.

The Vehicles Collided or The Point of Impact Was: When your client was cut off and collided with the car in front, don’t say your client hit, struck, or ran into the defendant’s vehicle. It sounds like the plaintiff was at fault. Say the vehicles collided or the point of impact was . . . It is neutral. Then bring it home with something like this:

The defendant pulled smack out in front of my client, cutting off her right of way, causing a collision that changed her life. The point of impact was the defendant’s rear fender. [This avoids “my client struck him on his rear fender” or “my client hit his rear fender.”

The Defense: Don’t use the word defendant when referring to the other side. Instead say the defense. The more you make it about that person individually, the more you risk sympathy getting in the way. The more impersonal you can make it by creating an entity known as the defense, a cold thing made up of lawyers and the unseen, the better chance you have of getting a full and just result.

Medical Negligence Cases

Did Not Do His Job: Don’t say the defendant doctor failed to compy with standards of care or was negligent. The standard of care sounds like it needs to be in writing or it is open for debate. Since it rarely is in writing, you’ll have a big problem with that terminology. Negligence sounds like a fancy-pants lawyer’s word. Say the doctor did not do his job right. Other words that work: the doctor failed to follow the basics of patient safety, the ABC’s of being careful when entrusted with someone else’s life. Other potentially useful phrases: • Do not take unnecessary changes when it comes to patient safety.

  • Be safe rather than sorry, within reason.
  • Keep the patient in the loop, not in the dark.
  • Finish the job [he or she] started.
  • Take the time to do the job right.

Within Reason: Often we need to add a qualifier, such as within reason, to head off any backlash from sounding like we are setting the bar unreasonably high. Take, for example, the basic patient safety rule—rather be safe than sorry, within reason. Without including the ballast within reason provides, there would be a risk the defense could effectively counter with, “the plaintiff’s counsel would have us keep every patient in the hospital for months just because we’d rather be safe than sorry!” By building in common sense and reason, you can nip these distortions in the bud.

--Taking Unnecessary Chances: Likewise with taking unnecessary changes with patient safety. If we leave out unnecessary, they could respond with, “There are always chances; medicine is not about guarantees.” By including unnecessary, you eliminate that risk. Words matter.

--For additional word choices for medical negligence cases, see “Don’t Eat the Bruises . . .,” supra, at 200-202.

VII. The Defense Medical Examination

Consider whether you should characterize a doctor hired by the defense to crush your client’s case as an independent medical examiner, OR a defense medical examiner, a paid minimizer, a paid opinion witness, the person the defense picked and paid, a hired gun or perhaps . . . wait for it . . . Dr. Moneybags!III This works best when you are relying on treating doctors and the defense is using a hired gun. Regardless, you should not call this exam independent.

--Caveat: We do not file motions in limine to try to force defense counsel to refer to the examiner as a “defense medical examiner” (rather than an “independent medical examiner”). We’d rather argue to the jury that calling this person “independent” is a defense effort to pull wool over their eyes.

VIII. Miscellany

--“Soft tissue injury”(sounds minor, even though the heart is comprised of soft tissue) v. “connective tissue injury” (If if anyone has focus grouped this one, we’d like to hear the results.)

--“Comminuted fracture” v. the “bone was broken into pieces.”

IX. Avoid Irritating Filler Words and SoundsIV

Too many speakers start off undermining their credibility. “Umm,” whether at the beginning or sprinkled among the words, creates boredom and disinterest.

Cable news is cluttered with “experts” who do not start their responses to those piercing interview questions with a convincing, forthright answer. Instead, we get:

  • I mean (This seems to have replaced “you know” as the filler of choice in recent years).
  • Well
  • So
  • You know
  • Listen
  • Look
X. Framework for Analyzing Word Choices for TrialV
  • Carefully vet your case-framing words.
  • Pick the perfect words to build your case upon, like building a foundation of rock.
  • Start by making a list of the key words and phrases you will repeatedly use at trial.
  • Put key words under a microscope to find out if they are the best words for the task.
  • Ask yourself:
    • “Are there words that more directly make the point I am trying to make?”
    • “Are there words that would make the same point, but would pack more of a punch?”
    • “Are there weaknesses that opposing counsel could exploit?”
  • Do not worry about every word that you utter.
CLIENTS’ USE AND UNDERSTANDING OF WORDS IN THE CONTEXT OF THEIR CASES

--At an initial meeting, talk to your client about how the imprecise use of language can hurt his or her case. For example: A client is two weeks into her physical therapy regimen. She walks in the door to a PT appointment and is greeted first thing in the morning by a smiling, pleasant, hopeful physical therapist who asks “How are you doing today?” Wanting to validate the physical therapist’s efforts the client replies “I’m feeling better.” Of course, this later appears verbatim in the PT records. When an insurance adjuster or defense attorney sees this they interpret it as 100% better. The client may, in fact, have only felt 5% better than the last time she was in. So tell clients to be specific, and use examples like this one.

--In a crash case, advise clients (and experts) to never speak the word “whiplash” because of its negative connotations.

--Of course, when preparing clients for testimony, we caution them to be scrupulously accurate. We separately caution them to be as accurate as possible with their word choices. As most of us know, if a client simply says “Well, I was in pain,” that is far less useful in explaining the experience than describing pain as shooting, stabbing, massive, horrendous, excruciating, throbbing, burning, pulsating, sharp, sore, or nagging pain. Or using words to describe how they may have felt later in time such as stiff, aching, numb, or dull.

--Better (or additionally): Have your client tell one or more short stories about how the injuring event adversely affected their lives.

--Better still: Have a “before and after witness” do so.

--Headaches can be called “headaches” or “wicked migraines” or “splitting headaches.”

--My head got “tossed around” not, for heaven’s sake, the dreaded “whiplash.”

--Pain can also be described:

--In terms of its location as “localized” (for the jury: staying in a particular area) or “radiating” (again, for the jury: spreading out from that area into . . .); and

--In terms of its frequency as “constant” or “intermittent.”

–For deposition or trial prep, clients need to understand the difference between being asked about their pain level “these days” versus “sitting here right now.”

--Listen carefully during client prep sessions and try to excise weak qualifiers like “I believe,” “I think,” “to the best of my recollection,” and “as I recall” if, in fact, your client has a strong memory of the events but uses these phrases as verbal ticks.

--If your case involves an impact, talk to your client about how he or she will characterize both the sound and force of the impact. You don’t want to be characterizing it at trial as a far more significant impact than your client will.


I This example comes from Mark Towery, a Virginia trial lawyer.

II This section is taken verbatim from Keith Mitnick, Don’t Eat the Bruises: How to Foil Their Plans to Spoil Your Case at 192-196 (and is but a small taste of the many excellent ideas contained in this book).

III I urge extreme caution with this one.

IV This section is taken verbatim from Theda C. Snyder, Get to the Point! You Lost Me Right From the Start: Avoiding Communication Turn-offs, by, December 12, 2017 | Communicating, Daily Dispatch, Get to the Point, Legal Writing.

V Mitnik, supra note 2, at 196-197.

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