Daniel I. Small, The Daily Record Newswire
In a previous column (DLN, Dec. 5, 2013), I examined two of the five basic language issues for which witnesses must be prepared: confusing language and legalese. Now I’ll tackle the other three: jargon, relative language and loaded language.
Jargon
Every profession, industry, region, etc., has its own language. It’s called jargon. In Webster’s words, jargon is “the technical terminology or characteristic idiom of a special activity or group.”
But like so many other words, jargon has multiple meanings. When Juror No. 6 hears jargon, it comes across less as impressive technical knowhow and more like Webster’s next definition of the word: “obscure and often pretentious language marked by circumlocutions and long words.”
Witnesses need to work hard to stay away from jargon, recognize when they fall back into it, and stop to explain if they do.
Jargon interferes with communication in so many ways. Jurors don’t understand it. They don’t like it and often feel it’s condescending. Talking about human issues in dehumanizing terms can make a witness seem cold and distant.
In fact, we understate the problem by saying that jargon merely interferes with communication. If you look at it from the perspective of Juror No. 6, it can be far worse. It forces the juror to make one of three decidedly undesirable choices.
If a witness uses jargon, Juror No. 6 can only:
1) ignore it (in which case why did the lawyer have the witness say it?);
2) spend the next several minutes trying to figure it out (in which case the testimony that follows is lost); or
3) decide the witness is a jerk and ignore everything he says.
Any of those choices can be damaging to the witness and the case. Help your witness understand what kind of jargon he or she speaks and how to avoid it.
Jargon makes a witness appear distant when it overwhelms the reality of the moment. One common example comes in medical-malpractice cases. Medicine cannot do everything. There always will be bad results, and some patients will die. No matter how good the medical care may have been, it’s hard for many doctors and other providers to talk about patients who don’t get better. There always will be lingering self-doubt and regret.
When forced to answer questions about such difficult matters, many doctors and other professionals try too hard to treat an emotional subject rationally. And in trying to be rational, the witness quickly retreats into medical jargon. That may be fine in a journal analysis or a peer review, but it’s not what lay people want to hear.
The harder the questions become, the greater the retreat into jargon. Slowly but surely, a caring health professional comes across as a cold, distant technician.
It’s more comfortable for many witnesses to seek refuge in jargon, but it can have a devastating impact on credibility and sympathy. Plain, emotional English is a more truthful reflection of feelings and a better way to reach out and persuade the listener.
Relative language
“Did you have those important meetings frequently?”
The words seem simple and common enough, but something is wrong. Simple does not mean clear, and common does not mean precise. A witness needs both clarity and precision. Relative terms are words that ask the witness to place something on a continuum with no reference points. They almost guarantee that the questions and witness will view the word, and the testimony, differently.
Examples include:
• frequently
• substantial
• common
• normal
• general (or “in general”)
• important
• regular
To get clarity and precision, the response to such terms would have to be, “compared to what?”
The problem is that the questioner may mean one thing and the witness something very different. The questioner will try to use that gap to an advantage. Don’t let that happen. Just say, “Please rephrase the question.”
Loaded language
The old saying is true: “It’s not just what you say, it’s how you say it.”
“Loaded” words are those that seek to have an emotional impact, positive or negative. In every case, there are at least two kinds of loaded words: those that counsel putting on a witness want that witness to use, and those that they don’t.
Part of preparation is helping the witness sort out which is which, and be ready for both. Think about the different ways a witness could describe the same thing. For example:
“The car flew through the stop sign” or “the car went past the sign.”
“The car smashed into the bus” or “the car brushed the side of the bus.”
“The children were screaming in panic” or “the children were upset.”
If the question contains loaded language the witness doesn’t agree with, don’t answer it. But that process must start in preparation. Always remember: The most important person in the room may be the court reporter. Language matters.
If you’re not 110-percent sure what the questioner meant by a word or a phrase, don’t answer. Remember, the court reporter doesn’t know what a word means or which meaning is intended unless either the questioner or the witness makes it clear. Insist on the discipline of clarity.
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Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (3rd Edition, 2009). He can be contacted at dan.small@hklaw.com. Previous columns can be found at masslawyersweekly.com.
