December 2013 Bar Bulletin
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December 2013 Bar Bulletin

Legalese and Communication Breakdown

 

As lawyers, we more than others should understand the importance and impact of words. After all, words are the heart and soul of the work we do. Our words tell the stories of those we represent.

Recently, it was brought to my attention that we are not always the best communicators. We tend to talk with each other rather than with our clients, juries or others outside the legal system. At a recent meeting I attended was an author who writes about major legal cases and issues. The other meeting participants were lawyers. As our discussion went on, it became clear that the words of the lawyers were a foreign language to the author.

In a follow-up conversation with her, she told me how little she understood of what had been said during the meeting. Her takeaway of the meeting was that attorneys communicate with each other, not clients, juries or others in the public. Her perception is concerning on many levels.

Our most basic function is explaining the law, processes and impacts to others. Many of us practice the same type of law every day and there is a "legalese" that flows from almost every type of practice. We do a disservice to ourselves when we use our legalese language. While we resort to legalese because the language is second nature to us - obvious in meaning - it really is a foreign language to others.

Think of all the acronyms we use as real words: UFC, WPIC, RPC, GAL, ECR and LFO to name a few. Additionally, we use legal terms and words as if those we represent obviously know what they mean: pro bono, pro se, amicus, deposition, ex parte, respondent and show cause are a few examples.

As attorneys, we use our skills to bring down walls for our clients by simplifying the legal process. In reality, we do not simplify the process enough.

Why does this matter? The work we do shapes futures and is often one the most important events in our clients' lives: an adoption, a custody modification, a sentencing, a finding of fault with financial damages. Most of our clients, jurors and witnesses hope their involvement with us is a one-time thing.

Realistically, each case is a case to us, not one of the most important events in our lives. It is another case like many before and many to follow. As a result, we talk to clients like their case is a case, not possibly the most important event in their lives.

To illustrate my point, I share a true story about a personal hero, U.S. Supreme Court Justice William Brennan, Jr. Justice Brennan was known for his compassion, intellect and landmark opinions. Before his rise to the high court, Justice Brennan was an attorney for a prestigious law firm in New Jersey. In one of his early cases as a litigator, he was representing a young man charged with manslaughter by automobile.

During the presentation of the case, he put a character witness on the stand - a young man from his client's neighborhood. He asked his witness, "Do you know young Logan's reputation in the neighborhood for truth and veracity?" The witness responded that Logan was a good driver. Justice Brennan repeated his question and the witness again responded, "I said Logan is a good driver." Justice Brennan asked the same question two more times, louder and slower (because speaking louder and slower makes what you are saying easier to understand). The witness, who was feeling flustered kept responding, "I told you, Logan is a good driver!"

At this point, the judge intervened, quietly asking the witness, "Does Logan tell the truth?" The witness then responded, "I've never known Logan to lie." The judge thanked the witness for his answer and went on to explain, "Well, Mr. Witness, that's the question Mr. Brennan was asking you, but you see, he is a Harvard graduate and doesn't speak English."

Harvard graduate or not, we all fail to speak in simple, understandable, common language with our clients at one time or another. We may think we are being careful when we ask a client or juror if he or she understands a process or legal term and they respond, "Yes." We may have even explained the term in a loud, slow manner!

So, how do you know if you are effectively communicating with a client? Explain your case theory, legal process or terms to a group of 10- to 12-year-olds the same way you would to a client. Ask them in their own words to explain what you've said. The answers should be telling.

We need to make a concerted effort to speak to witnesses, jurors and clients in their language, not ours, to be the most effective. It is a challenge for each of us, however one that we can meet with a little thought and effort, resulting in more satisfied and better informed citizens.

 

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