Francis Scott Key Was a Lawyer. Don’t Be Like Him.

Get a piece of paper and a pen, and try the following puzzle. Seriously, try it—it will make this much more fun and you might learn something kind of profound.

Ready? Here is the challenge:

In 30 seconds, write in one clear sentence what the first verse of ‘The Star Spangled Banner’ means.

Go. Then we’ll resume below the stars and stripes.

How did you do? My guess is that most people do poorly.

The answer should look pretty close to this:

“Is that U.S. flag we saw last evening still flying this morning?”

Didn’t get it? That’s because the sentence structure is spasmodic, jerky, choppy, almost entirely adjective clauses, and ultimately confounding. The simple message is lost to complex sentence structure.

The joke would be that it could only have been written by a lawyer. Except that Francis Scott Key was a lawyer. A courtroom lawyer. Of course he was.

And why do I mention this? Because lawyers do this in trials and mediations every day. Sigh.

Let’s take a look at Key’s poem:

“O say can you see by the dawn’s early light,
What [meaning the flag] so proudly we hailed at the twilight’s last gleaming,
Whose [meaning the flag again] broad stripes and bright stars through the perilous fight,
O’er the ramparts we watched, were so gallantly streaming?
And the rockets’ red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there; [circumstantial evidence that the flag flew overnight]
O say does that star-spangled banner yet wave,
O’er the land of the free and the home of the brave?” [restating the question in the first sentence, this time referring to country and countrymen, either a shift of focus or elaborating his argument out of nowhere.]

Ladies and gentlemen, Mr. Francis Scott Key. Esquire.

Here he is ordering breakfast:

“O say, may I have, on a plate with hash browns,

Which are cooked extra crisp, bacon and two eggs scrambled?”

And here he is at a nightclub:

“O say, would you like, supposing you dance,

For the next couple songs, to jiggy with me get?”

What subtle lesson is there for lawyers in ‘The Star Spangled Banner’?

Trick question—the lesson is not subtle. It bursts in air bombily. Sentences that convey memorable meanings move from beginning to end in one direction. No zig zags.

Let’s compare your performance on the National Anthem Challenge just now to the experience your jurors have with any section of your opening statement or closing argument, or even that neutrals and stakeholders have with your mediation statement.

You have heard ‘The Star Spangled Banner’ hundreds or even thousands of times and yet have trouble saying what it means.

They have heard your presentation once.

You have ‘The Star Spangled Banner” memorized and yet have trouble saying what it means.

Jurors and mediation participants have not and will not memorize your words.

‘The Star Spangled Banner’ contains some extremely vivid imagery, yet we still have trouble saying what it means.

Your statements should, too, though unlikely to be quite as vivid as an overnight pitched battle.

‘The Star Spangled Banner’ is written in the second person, which is automatically more engaging to listeners than the first or third person, yet it’s hard for most people to say what it means.

Your statement should, too, though only for moments at a time.

‘The Star Spangled Banner’ is set to music!  Granted, a tough tune to sing while sober with its 1.5 octave range, but we learned it as a song—and yet, hard to say what it means on demand.

Your stuff does not, alas, come with a tune and is therefore harder to remember.

So, Counsel, Francis Scott Key, Esquire, had all these advantages in getting his message across, yet his message is clouded at best, and at worst, too opaque and not worth the effort to decode correctly. So what possible chance do your jurors or mediation parties have with your stuff IF you write and speak in complex, disjointed, self- interrupted sentences?

I think it comes from four contributory causes that are rampant in courtroom lawyers.

1. There is a common fallacy that more data is more persuasive. It isn’t true, of course, as evidenced by the number of people who think President Obama was born in Kenya despite more data being offered, or the fact that anyone smokes cigarettes at all, despite universal knowledge that it’s unhealthy. Unfortunately, this more-data-is-better problem is co-morbid with . . .

2. Too much lawyerspeak permeating the brain. We marinade in it for three years of law school and then we practice in it, and it restructures the language centers of our brains so that we think it’s a perfectly sensible and clear way of talking.

I mean, what the hell, people—”The [defendant physician] must disclose to the patient all information that the [insert type of medical practitioner] knows or reasonably should know would be regarded as significant by a reasonable person in the patient’s position when deciding whether to accept or reject a proposed medical procedure”? And that is a jury instruction that is meant for laypeople. If my old high school English teacher were to diagram that sentence, it would resemble the electrical and hydraulic schematics of a jetfighter.

But us? We think that stuff is normal. It’s not, though—it’s sick and it’s wrong. And it is unfortunately fueled by . . .

3. Not preparing enough for the speech. Be honest. Are you one of those lawyers who tells himself or herself (the lie) that “I’m much better when I speak extemporaneously from just a few notes.” Well, it’s time someone told you: no, you’re not. That’s merely a justification we tell ourselves because we dislike preparing, we haven’t properly budgeted the time for it in that difficult pre-trial period, we’re afraid of doing poorly so we build in the excuse for it and rationalize it, or maybe we are not that good at writing speeches for laypeople (a task which, ahem, can be contracted out). Whatever this fallacy is there to mask, it is nevertheless poor craftsmanship.

The ideal presentation would be a well-written speech that is memorized and recited perfectly and engagingly. That’s also quite impractical almost all of the time. So the next best is a well-written speech that is rehearsed several times so the speaker is only kind of half-reading it. But the truth is that a confident, half-read delivery of a good speech is WAY better than a haphazardly delivered semi-improvised speech. Why would you want your audience to see your first draft?

The lowest level of preparation that is likely to produce a good quality speech is writing out a pretty complete outline, and talking through the entire speech at least a few times from the outline, writing down the perfect phrases and sentences as you discover them in your live rehearsals.

The odds are just too high that some phrase that seems clever in the moment will strike the wrong note with your audience—and the odds are about 100% that the speaker will have lots of sentences that are bisected and filled with quickly-realized “clarifications” – like fact salad sandwiches.

Here’s what to do:

Sentences must move in one direction from beginning to end. No zig-zags. The brown dog running at night is hard to see. Not: “The dog, who is brown and running at night, is hard to see.”

This requires raising our spoken language to a conscious level for a little while, practicing a new mindset for simplification of communication. If you get part way into a sentence and then feel the urge to halt to insert other information, fight that impulse; just finish the sentence and then supply the information you think is important.

And remember this about Francis Scott Key, Esquire.

That dude is basically history’s most famous one-hit wonder.

This entry was posted in ADR, Jury Persuasion, Opening Statement, Trial, Writings and tagged , , , , , , , , , . Bookmark the permalink.

11 Responses to Francis Scott Key Was a Lawyer. Don’t Be Like Him.

  1. Mark says:

    Nice Rich. But I wonder if anybody will remember anything that you ever wrote one hundred years from now?


  2. Good, practical advice. As someone once said in answer to why his paper was so long, said that he didn’t have time to write a short one.


  3. Bob Small says:

    Rich-Your points are all correct and well taken. In fairness to brother Key, he was not writing a poem to persuade but to move – to stir the imagination. Finally, it is NOT “unhealthy” to smoke cigarettes. It is “unhealthful.” Bob Small


    • Hi, Bob, and thanks for your comment. You are right about FSK; I was just using him as an example of a common lawyer trope that gets in the way of juror connection & comprehension. But you’re right about him. My apologies to his descendants & other Keyophiles.
      As to ‘unhealthy,’ I’m afraid I can’t agree. Merriam-Webster’s dictionary lists “not conducive to health” as the first definition; lists it third. So it appears that usage overtook the prior first definition of “not in a state of good health,” and that either word is correct. (If it helps you feel better, I still clench my teeth when people say ‘hopefully’ to mean “I hope,” another evolutionary battle that is being lost.)
      (2) Even if ‘unhealthy’ were incorrect, I would suggest using ‘unhealthy’ because of universally understood meaning and usage, so your jurors would connect with it and get it and won’t disrupt the flow of their intake of your speech. ‘Unhealthful’ would be a slight bump for them, because it’s unusual and possibly just a pinch stuffy. In my article “The Five Do’s and 12,000 Don’ts of Opening Statements,” I talk about the opposing lawyer who raised the word ‘divorce,’ only to tell the jurors, “I’ll call it ‘dissolution.'” Yes, it’s correct but it’s wrong. Trial counsel’s job is to foster jurors’ ability to connect with him or her and to be clear. Lawyers are exquisitely linguistic-logical. As often as not, that’s a barrier to communication rather than a help.
      Thanks for commenting, Bob. I appreciate it and welcome you back anytime!


  4. Mary Donovan says:

    Always a delight to read something so well written. Long, and often, may you write.


  5. Thank you Rich for illustrating that reading between the lines can be an eye opener, it depends on the reader’s lens. I appreciate your posts and will encourage my legal nurse consultant colleagues to enjoy your wisdom. Legal is a lot like medicine. The diagnosis can depend on which specialist is assessing the client.


  6. Your points about improving presentations are well taken, but you should cut F. Scott Key a little slack. Key was not just a lawyer; he was a poet. The Star Spangled Banner is a poem, not a legal brief. Poems, especially 19th century poems, often use constructions that confound modern readers. So, thank you Captain Obvious, for pointing out that a 21st century lawyer should not write like a 19th century poet. However, a little poetry can still improve that dry legal prose.


    • Hey, that’s Mister Captain Obvious, pal.

      My territory is not how 21st Century lawyers write, but how they speak to laypeople. And 21st Century lawyers too often speak by starting a sentence, then abruptly inserting a subordinate clause, an adverbial or pronoun phrase, then another, and then picking back up at the first sentence fragment. A transcript of a jury selection will instantly reveal the torturous sentence structure with which lots of attorneys speak to prospective jurors. It might win points with the ghosts of 18th Century lawyer-poets, but it ain’t winning any points with the soon-to-be deciders of their cases.


What are your thoughts and experiences?

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s