Fish do not think they are wet. If they thought about it at all, they might think you are dry. But just going along their fishy paths, leading their fishy lives, they give no thought to their own wetness. They don’t notice it. It’s just their environment, part of them. Just as you don’t routinely consider your dryness. Swim in something long enough and you won’t even notice it. Until someone points it out.

Counsel, you are probably a fish. Someone had to say it. At least it’s coming from a friend.

It is more common than not that courtroom lawyers, quite apart from their skills as litigators and legal strategists, nevertheless talk like lawyers… and don’t really notice it. Why? Because it just passes through our gills.

What’s wrong with sounding like lawyers? Two things.

One is – not to shock you – people don’t really like lawyers (until they need one, of course). So it would be a good idea not to sound like one if you want laypeople to go along with you. The other is that any unfamiliar jargon is off-putting and disruptive to listening and processing what the presenter is saying.

So at the risk of becoming the Torquemada of Text, I suggest courtroom lawyers banish certain wordings, at least in front of jurors:

Voir dire

There is absolutely no reason to use this term in front of jurors. Let’s start there. The evidence rules and the procedural codes of your state probably don’t even use the term. There is zero need – none – to introduce the term to jurors. I guarantee that they will figure out very quickly that this is the section of their day in which you will ask them various questions. They will figure that out the instant you start asking them questions.

Have you ever been to a restaurant in which the waiter appears at your table, and says “This is the part of the evening where I will ask you what you would like to order. [Pause] What would you like to order?”? Of course not. If you want a throat-clearing sentence before launching into your questions, here’s a good one:

“Good morning again. I would like to get to know you a little better. Who here might have some uncomfortable feelings if…”

Banishing “voir dire” from your vocabulary will also protect against one of the lamest, most hackneyed opening lines in the Hack Lawyer Trope Hall of Fame: “The term ‘voir dire’ comes to us from Old French, and it means…” Ugh.

“You understand that …/Would you agree with me that…”

OK, I admit that this is less a vocabulary problem than an intent problem. But banish these phrases and you’ll be well down the road to banishing the fallacies that gave rise to them.

Archetype:

Mr. Prospective Juror, you understand that the Constitution says my client doesn’t have to testify, that he is presumed innocent, and that the only thing that can change that is if a jury finds that the prosecutor proved all the elements beyond a reasonable doubt. [Pause] If my client doesn’t testify, would you have a problem with that?

(And believe me, I have plenty of examples from civil trials, but I trust you get the idea.)

Well, unsurprisingly, once you lay down the rule first, then ask what people think, they tend to answer the way you just taught them was correct:

“No, that’s the system.”

Unfortunately, the unspoken part in that person’s mind was:

“I think anyone who is innocent would welcome the opportunity to get on the stand and defend themselves.”

So the Rule-first-then-ask method is horrible and self-defeating. Banish all that “Would you agree with me that…” and “Do you understand that …” language, and it might help to train your mind to want to lead with questions rather than the Correct Answers.

Opine

I hope this needs no explanation, but I’ll give it anyway: Nobody talks this way. People do not talk this way. Try “say,” “what do you think,” “gave an opinion,” or what you really mean besides some stuck-up word like “opine.”

 “Is that fair?”

A lawyer synonym for “Is what I just said a fair and accurate statement of your belief?” However, if you’re not a lawyer, it is awfully ambiguous. Examples from too many jury selections:

Attorney: “So you’re responsible for all the analysis that comes from your department. Is that fair?”

Imaginary Juror, thinking: Is that damn guy asking whether it’s fair that I am in charge of my department’s analysis?

Real, normal human beings simply don’t use the phrase “Is that fair” to mean, “Do I understand this correctly?”

Better: “Did I hear correctly that you are X?” Or “I think I heard X; is that right?”

Indicate

Normal human beings do not indicate things. They say things. They imply. They bellow. They whisper. They yell. They speak with mouthfuls of food. They take long pauses before saying something. They dope-slap others in the back of the head. They wave their arms. They fold those same arms. They drop their jaws. They freeze in the lights. “Indicate” is just about the weakest, lamest, least descriptive word you can apply to one area of human behavior that is rich with ways to describe it: communicating something.

If you use this word, know that you only use it because you heard other lawyers using it and just adopted it into your programming like a computer virus. Now that you’re aware of this habit, though, you can sometimes catch yourself and replace it with any of literally hundreds of better words.

As with most of the words on the list, figure out what you are talking about. Do you mean say? Do you mean hinted? Do you mean answered?

My objection to this word is two-fold. It’s unusual, non-normal English language, thus to be avoided lest you be viewed by your jurors as non-normal. And it’s vague and mealy-mouthed.

Please come back for Part 2 on Tuesday, July 2.