Textemada (d.b.a. the Torquemada of Text) is back with more words and phrases that lawyers simply must banish from their vocabularies. I would say “at least in front of jurors,” but I think the reality is that our minds get trained by whatever we do, wherever we do it. The person who says “disingenuous” around the office – and, boy, is there a more weasely word than ‘disingenuous’? – will likely say it in court, too.
I can’t believe it has taken this long to flog this one. As with much of my advice about communicating with jurors, let’s start with the question of what real, normal people take this word to mean in common usage.
OK, trick question: there is no common usage, because nobody except lawyers uses this word. Therefore, neither should you.
What does the speaker mean, anyway? If one means “dishonest,” then one should own that and say it. Have courage in your beliefs. If you mean “lying,” say it; have courage. If you mean “difficult for me to believe,” say that; it’s more precise. Or “hypocritical.” Or “insincere.” Or whatever your true meaning. Any of these are better, plainer, more descriptive, and more persuasive than “disingenuous.” And they are all different senses. Say what you mean.
Besides being a lawyers-only word, ‘disingenuous’ is so wishy-washy that it is itself . . . well, disingenuous. If you can’t bring yourself to say “dishonest” or “hypocritical” but want to hide behind a fancier word that might or might not mean that you’re accusing your opponent of lying, then that is exemplary disingenuousness. In much the same way that anyone who actually uses the hackneyed phrase “think outside the box” is forfeiting any claim to the fresh thinking the phrase called for (decades ago), the mere act of calling someone “disingenuous” forfeits the speaker’s right to call anyone disingenuous.
“That argument is flawed”
People don’t talk this way. I watched the group of laypeople when the lawyer used this phrase, and there were a couple of quizzical looks – not because they did not understand the word or that it wasn’t simple enough. Rather, my hypothesis is that people take it as either (a) weakness, or (b) off-puttingly formal and delicate. While no good jury expert would ever advise you to be belligerent, there is danger in going too foppishly the other direction, too. Use active words that people actually use.
“That argument doesn’t work.”
“But that doesn’t add up, either.”
“But here is where that argument falls apart…”
“And yet, if that is really what he thought, then he should have done X…”
Using the word “witness” during jury selection (oral or on questionnaires)
Here’s a fairly common question that gets circulated on lots of juror questionnaires and/or used in oral questioning of prospective jurors:
“It may be that one or more of the parties, attorneys, victim or witnesses come from a different nationality, racial or religious group, or may have a lifestyle different than your own. How might this affect your feelings or opinions of their presentation or testimony?”
“We will put on witnesses who might have [committed crimes in the past/are related to one of the parties/whatever]. How might this affect your thinking about what that person says in court?”
So what’s the problem? They’re true statements, after all.
The problem is that you mean “witness” in the Evidence Code sense—a human being who will take an oath and sit in the box next to the judge and answer questions from the lawyers.
That is not what laypeople think the word “witness” means. They take it as someone who saw the occurrence—which implies at least two things that might not be very helpful for your side. One is that there was an occurrence (a crime, a potential tort, etc.) Well, that’s a hell of an admission to make right at the start, especially when we didn’t mean to and it isn’t even true. The other implication is that someone saw that occurrence and will come into court and talk about it—and I would not want to be on the wrong side of that accidental promise when it turns out to be untrue.
One of the things I talk about a lot is the urgency of getting the Evidence Code out of our heads as any kind of a map of how humans actually think or speak. It’s not. We have to realize our own homonyms . . . and realize that we are the ones who carved our meanings out of layperson meanings, not the other way around. It’s on us to be clear to them.
Seriously. Heard a lawyer use this phrase to jurors this year.
Look, even if your jury is comprised of twelve law professors who teach first year torts (dream or nightmare? Discuss.), it’s best not talk like a lawbot. It’s meaningless and confusing at best, pompous at worst. When the best is “meaningless and confusing,” go a different way. This applies to almost every phrase we did not already know before we went to law school.
“Will prove by a preponderance of the evidence”
Or, as the non-lawyers on the jury heard it in their minds, “Will prove by a papadam and some mints. Wait, there’s no way that’s right. Though Indian food does sound good; it’s been awhile. What did he say?” And by the time the audience rejoins you, they missed your cool summary of what you were going to show.
Again, lawyers should talk like people, not the Evidence Code or the Procedure Code.
And anyway, why is the party who has the burden of proof talking about the burden of proof? How does that help?
Something is “unclear”
Much like “disingenuous” is a disingenuous word to use, “unclear” is ambiguous. Think of all the senses in which we use the word, and notice that they are not the same thing:
“I’m unclear on that.” [Possible meanings: I don’t understand that at all; I understand it only partly; I am uncertain; I don’t know.]
“Whether X happened is unclear.” [Possible meanings: It is unknown to anyone whether X happened; I personally don’t know whether X happened, but it is known to one or more other people; not only is it not known, it might not even be knowable whether X happened.]
“It is unclear what effect X might have.” [Possible meanings: it cannot be forecasted by anyone; there are forecasts but there is no reason to believe one over other competing hypotheses; I don’t have an opinion or preference among competing hypotheses; there are good faith differences of professional opinion in my field about this.]
This is not only a word lawyers should avoid in the courtroom, but listen for it during your witness preparation, as they should not use it, either.
Really, lawbot? “In freaking sum?” Who talks like that? Or rather, who talked like that before enduring law school?