At the Jury Room, Douglas Keene offers some advice on how not to win a case.
Researchers tell us witnesses who had been taught about how cross-examination would proceed performed much better on the stand than did witnesses left to manage without instruction. Well, yeah. That makes sense. But here’s where it gets interesting. The issue was not in the process (as in anxiety over performing) but in the language of cross-examination.
‘Lawyerese’ which the authors define as “complex questions, containing multiple parts, double-negatives and advanced vocabulary” throws off the brain’s ability to process information correctly. So, witnesses who had been trained in ‘lawyerese’ were more likely to respond appropriately and less likely to make errors in testimony.
What bothers me about this isn’t the advice, but that the researchers call the inability to ask a proper question “lawyerese”. There is absolutely nothing lawyerly about asking “complex questions, containing multiple parts and double-negatives.” Didn’t the researchers speak to a competent lawyer before engaging in this study, so that they might have the slightest clue how a lawyer asks a proper question?
About the only part of the Lawyerese definition that raises the slightest concern is the “advanced vocabulary” aspect. The use of lawyer words, unfamiliar to people who are successful at meeting the opposite sex at parties, is a major mistake, but one often committed by newer lawyers and lawyers who don’t have much experience in examining witnesses.
Whether because they think fancy words make them appear smarter, are more precise, or have become ingrained in their speech after three years of being told by lawprofs that lawyer words are incredibly cool, some lawyers will use jargon to question a witness. This isn’t lawyerese. This is bad questioning. Bad, bad, bad.
As for a lawyer who puts someone on the stand for direct examination without having fully prepared them, that’s just bad lawyering as well. No competent lawyer puts a witness on the stand without preparation. Never.
Keene goes on:
It doesn’t take advanced education to think about which witness would seem more credible to a jury. It’s all part of a witness preparation strategy. You want your witnesses to be prepared for their testimony and that means more than simply running through your plans for direct examination with them. Preparing witnesses should not be an afterthought.
Obviously, this is good advice. Equally obviously, this is so basic that if it needs to be said, then the lawyer really isn’t ready to try a case. If you found this advice helpful, chances are exceptionally good that you should avail yourself of a mentor, a second chair opportunity, a few good quality CLEs, a stint at the National Criminal Defense College or a different job. What you should not be doing is trying a case that involves some poor schnook’s life.
The conflation of bad lawyering with the mistaken understanding that the inability to ask a competent question falls under the heading of “Lawyerese”, however, contributes to the public’s lack of understanding of what lawyers do, or should do. It’s bad enough that some Liverpudlian shrink, Jacqueline Wheatcroft, is so clueless about lawyering that she would confuse really bad questioning with lawyerism, further advancing the notion that lawyers are inherently blithering idiots.
Lawyers are guilty of many things that society tends to frown upon. We’ve got enough going against us to make it incredibly difficult to procreate and maintain the species. Let’s not exacerbate the problem with psychologists attributing incompetent preparation and questioning as a lawyerly trait. And let’s not perpetuate it by approving the use of a word like “lawyerese” when the real problem is basic incompetence.
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Well, when I was a prosecution witness, the defense atty asked me a question that had at least 3 parts, one of which was part of my statement, negated, surrounded by a double negative. Had I not stopped to think carefully, I would have answered “no” when the real answer was “yes”. But having survived quals in comp sci, I took the question apart, much to the judge’s amusement, and then answered.
I think that’s the type of question being referred to: not accidentally crafted, but deliberately obscure. Is that not a legitimate style of questioning? The judge allowed it over the prosecution’s objection.
Scott,
I appreciate and agree with your comments. Clearly, the term “Lawyerese” is not complimentary, and does not characterize the approaches that skilled lawyers employ. On the other hand, I am a bit shy about calling people who do those things “incompetent”. I think that the researchers I quoted in the blog post knew full well the difference between what they were seeing and effective examination– the contrast is what gave rise to the use of the critical term. In social science circles, the equivalent of “Lawyerese” is “Psychobabble”, and it isn’t any more useful or complimentary.
Our blog is read by a lot of people as experienced as you, and a lot of people who don’t spend much time in front of juries, so we write for both. An active criminal defense practice is about trial examination. An active civil practice is far more about deposition examination. In my teaching trial advocacy, I have urged my students to consider the difference between these two ‘styles’ much smaller than has usually been taught in the past, but for some lawyers it is tough to keep the ultimate audience (jurors) in mind. For some, lapsing into legal jargon is a second nature they struggle to resist. And if your only real audience is a judge or a mediator, that might be more understandable. For a criminal defense lawyer, it is, as you said, unforgivable. But for those who are having to translate their practice from a judge-focused effort to one that is jury-focused, it is sometimes more difficult than it looks.
This particular blog entry is hopefully obvious to most people when it is pointed out, but it is sometimes lost in actual courtroom conduct. I am sure you have seen lawyers lapse into lawyer-speak at times (whether they are trying to preserve error or just got lost in their own heads) and ask questions that are frankly unintelligible to jurors. The impact of those questions on the jury is not only ineffectual, it can actually be alienating.
All that said, I enjoyed reading your insightful comments, and appreciate the feedback. It makes me think further about what we post, and I look forward to exchanging ideas with you in the future.
Cheers, Doug Keene
The use of lawyer words, ***unfamiliar to people who are successful at meeting the opposite sex at parties***, is a major mistake, but one often committed by newer lawyers and lawyers who don’t have much experience in examining witnesses.
Well done.
I appreciated your post, Doug. I just get annoyed when academics “study” something that bears no relation to good lawyering and use it to denigrate lawyers. It sends the wrong message and further bolsters the belief that lawyers suck. We may well, but not for that reason.
This post was about direct examination. A question like that on cross is the legal equivalent of a capital crime.
My intent, and that of my colleague Rita Handrich, never includes denigrating the legal profession in any way. I spent the first post-educational part of my life as a clinical psychologist (in practice), the second as an expert witness on a wide variety of psychological and neuropsychological topics, and for 15+ years I have been supporting the efforts of a large number of trial lawyers all over the country. We follow research done by others carefully, conduct field research on cases, but don’t do it at an ‘academic distance’. Our intent is to enhance the connection between the lawyer’s efforts and what is most important to the jurors. So that what is important to the lawyer becomes both understood and embraced by the jury. I am proud of what I do, and my clients (trial lawyers) are proud of what they do. Now we need to make sure that we consistently find a way for jurors to be proud of supporting us… That is where I find the art of advocacy.