All professions have their own language, a vocabulary that facilitates communication within the membership. Lawyers face a huge problem, though. While communicating with the Judge or opposing counsel, legal jargon works very well. However, in the next breath, the lawyer then has to turn and face the lay jury and explain the same concept in a persuasive manner. Here, the very jargon that just persuaded the judge to rule in your favor will not work at all in persuading the lay juror. While professional jargon lets you “fit in” with your colleagues, it makes you an outsider to the jurors you need to sway.
The great philosophers and the great story-tellers were faced with this same problem: How do I communicate lofty principles to a rather uneducated group of people? How do I use language that will let me “fit in” with the lay audience?
Aesop did this by turning his moral lessons into simple, short stories with commonplace characters. Jesus and the Buddha used parables. Cicero understood this problem and developed five classic ways to “fit in” with your popular audience (i.e., the jury):
- Proper language for the occasion (simple concepts with a strong theme)
- Clarity (eliminate legal jargon—none of us know what a “tort” is—or care!)
- Vividness (action verbs, one thought per sentence, each sentence logically leads to the next thought in the next sentence)
- Decorum (don’t try to fit in by wearing cowboy boots in a rural case or by changing your accent to a regional one. These are too transparent. Try to talk, instead, about how you have some common experience with the members of the jury—all of us drive cars, all of us have insurance, all of us have been to the hospital, all of us have made mistakes, etc.)
- Ornament (create a “place” for the jury to “store” an image for each main idea in your case.)
For example, one clever technique is to talk about a case using the image of a shopping mall. It uses all of Cicero’s simple concepts to set the stage for a complicated insurance bad faith case:
“Let me tell you the story (#2). I like to think of this case like a big shopping mall (#1, 4, and 5).
“Over here we have the big foundation store, the main reason for the mall -like a Macy’s- and in that store you will find the main point of this insurance case–that this insurance company has an overall policy of refusing to pay money they owe to their customers who have been in accidents so that the company can make more money. (#1)
“Now, to support the main store in the mall, we have a food court. In it you will find some of the small characters, like pizza and burger joints. These are like the claims adjusters who really have to do a lot of the direct contact with customers at a time when the customer might be in distress—like the food court servers who deal directly with customers who are really hungry or tired (#3). Since the mall and Macy’s are motivated by profit, they want well-treated and well-fed customers who can shop more. It doesn’t do Macy’s any good to have people just come to the mall to eat. They want people in and out of the food court fast, with some money left over, so they can get back to shopping. So the mall and Macy’s only allow those food stores that are willing and able to do this. Insurance companies do the same thing—they will only hire adjusters who will play along and make the customer feel fine.
“Then, to further support the main store and the mall, we have some of the specialty stores, like a bookstore and a jewelry store. These stores attract a variety of people. Sometimes these stores have competing interests with the main store (like, they both sell jewelry), but they also complement each other (someone goes to buy a book, see Macy’s, and remembers they need a Valentine’s Day gift for their spouse and takes the quick side trip to get it). All these specialty stores are like the claims department and the sales department in an insurance company. Each has its own special purpose, but sometimes their purposes are in conflict—like paying claims reduces the profit of an insurance company, which might decrease bonuses in the sales department. However, you have to have both. You just can’t have the functions cross over very much—like you really can’t have the bookstore selling a lot of jewelry or the jewelry store selling a lot of books—otherwise the mall kind of falls apart. Same thing in insurance, if sales and claims do similar things, the whole idea of insurance falls apart.
“But, what about this? Let’s say you have finished shopping. You hop in your car and turn the key. Nothing happens. You panic. Your car battery is dead. It is dark and getting a little cold outside. Your eye catches (#3) one of those mall phones on a light pole that says “Parking and Security Service.” You call for help. A truck quickly arrives with the mall logo on the side. The driver looks at your battery. This “expert” reveals some bad news. “Well, I think it is completely dead. I can push it over to the repair place so you can get a new one. While they are working on it, you can just go back to the mall or get something to eat.” What you don’t know is that Parking Services is paid by Macy’s to delay you—to get you back into the mall to shop. A service that you thought was supposed to be there to help you turns out to be just another way for the big company to make money.
“That is what this insurance company has done in this case with its claims department—it has turned a service that looks like it is run by experts that is supposed to help customers like my client into just another way to delay and make more money.” (#1)
This sample story uses no legal jargon. It helps lay jurors relate a complicated industry to an everyday experience. It establishes vivid, memorable anchors for the attorney to refer back to throughout the trial. It starts with “Let me tell you a story,” not “The evidence will show . . . .” Maybe it is not the be all and end all of legal openings, but it exemplifies Cicero’s approach.
Aristotle knew all this, too. He observed that uneducated people speak more simply “. . . which makes the uneducated more effective than the educated when addressing popular audiences.” Jurors are not necessarily “uneducated” in the sense that they did not go to school, but they are relatively uneducated about almost every area of the law. Your professional language may make you sound learned, but that does not equal being persuasive. To be persuasive, you have to fit in. To fit in, you have to talk like the membership talks.
(For more, see Thank You for Arguing, by Jay Heinrichs, 2007, Three Rivers Press, Random House)
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