(1) Abstract vs. Concrete
In word selection, we have to choose specific words as well as specific terms. A word choice may be the difference between an “accident” or a “crash”. Careful consideration of phrases leads a plaintiff’s lawyer to totally avoid the use of “medical malpractice case”.
In the choice of words with impact, a good starting point is to consider concrete words rather than abstract terms. Concrete words are those which refer to the use of our five senses, i.e., what we see, hear, touch, taste and smell, for example: scarring, screams, singeing, acrid or pungent. Abstract words create no tangible image and include such vague terms as justice, equity, liberty, and democracy. The problem with the attorney’s use of abstract words is that if you ask twelve jurors to give a definition of justice, you would get twelve completely different answers because each juror would interpret justice in terms of their own background, experience, education, ethnicity and intelligence.
Therefore, concrete words are more persuasive by their nature than abstract terms, particularly in group persuasion, and should be carefully selected by counsel to convey the proper concrete message.
(1) Simulative Concrete Words
The most effective use of concrete words is to use those which simulate the action they describe as well as suggesting the sound associated with the action. These words generally rely upon the opening consonants to compel the lips to move forcefully to suggest the sounds. Examples for use by attorneys include crash, crunch, crush, blast, blare, flicker, flame, or flare; shimmer, shiver, or shutter; fizzle, sputter, splash, roar, whistle, hush, whoosh or gurgle. These are words that create vivid mental images in the minds of the listener and have the added advantage of being very familiar, simple and easy to recall. Words such as crash, crunch and crush are very specific and lead to very little controversy with respect to their precise meanings.
(b) Deliberative Abstract Terms
Not only should we carefully choose concrete words, but the better part of discretion dictates that we should avoid the use of abstract words. Abstract words such as justice are left brain, contemplative words which lead to philosophical debates and discussions, precisely the opposite of the goal which we as attorneys have in persuading jurors. Our goal is to mold the minds of the jurors into a cohesive mindset, culminating in complete accord on our side of the issue. Our purpose is not served by using words which stimulate debate. Once again Abraham Lincoln, demonstrating his brilliant understanding of the persuasive techniques that carried him to the White House and into the world’s history books, explains the problem with abstract terms:
We declare for liberty; but in using the same word, we do not all mean the same thing. With some, the word liberty may mean for each man to do as he pleases with himself and the product of his labor, while with others, the same words may mean for some men to do as they please with other men and the product of other men’s labor. Hereto, not only different, but incompatible things, called by the same name – liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names – liberty and tyranny.
In choosing the language of the case, choose carefully concrete words which most specifically describe the idea which you are trying to convey and avoid abstract terms which will merely move your jury to unwanted debate and philosophical discussion.
(c) Preloaded Word Selection and Avoidance
As a result of the extensive preload which has been imposed upon jury panel members before they walk into the courtroom through the mass media efforts of the insurance industry, the manufacturers of defective products, chemical companies and the health care professionals, there are numerous impact words which must be avoided by the plaintiff and which should be frequently utilized by the defense in particular types of cases. For example, the term “medical malpractice” will conjure up in the minds of many prospective jurors that, 1) this is the type of case that is driving up my health care costs, 2) this is why doctors are leaving medical practice, 3) this is why the elderly can no longer afford insurance, and 4) most of these cases are frivolous. Obviously a medical negligence defense lawyer should utilize the term as often as possible. However, the plaintiff’s attorney must speak in terms of “this is an ordinary negligence case that involves the failure by the doctor to meet the standard of medical care in this community. It is a simple medical negligence case. Nothing more, nothing less.” In the automobile collision case, the plaintiff should never use the term accident. An accident connotes an occurrence which was not the fault of anyone. For the plaintiff the event was a high impact collision, a crash that resulted in the crunching of metal on metal and the crushing of the life from the driver.
There are other circumstances where the industry language may be unfortunately misleading and must be avoided. For example, in the entire area of closed head injuries, the language used by psychologists and neurologists to describe the nature and extent of the closed head injury are mild, moderate and severe. A plaintiff’s attorney describing to a jury a moderate closed head injury will not “execute the required level of emotion” as Aristotle recommended 2300 years ago. The plaintiff’s attorney should advise the neuropsychologist, psychologist or neurologist who is testifying with respect to the injury of the plaintiff to use terms other than mild, moderate or severe and to avoid the use of the term “closed head injury”. Instead, more accurately descriptive terms such as permanent, irreversible brain damage go further to describe to the jury the true situation with respect to the plaintiff’s plight.
In describing our own work we should give thought to our role as we stand before a jury. Would you prefer to portray yourself as an asbestos lawyer or an environmental lawyer; a product liability lawyer or a product safety lawyer; a criminal defense lawyer or a constitutional rights lawyer. The idea is to identify the adverse words which may be used during the trial and soften those which support perceptions adverse to your position and strengthen those which aid you in explaining your client’s position to the jury.
(2) Catch Phrases
A catch phrase is an innocuous term which has been reworded so as to turn it into a thorn in the side of your opponent.
An example of a meaningful catch phrase is found in a case in which a customer in a grocery store bent down to pick up a package of candy off of the bottom shelf of a multi-tiered candy counter which was complete with shelf extenders with bags of candy attached. As she bent down she impaled her eye on one of the metal shelf extenders which was completed concealed by the cellophane packages. In preparation for trial it was realized that the term shelf extender was an innocuous meaningless term which would not “execute the required level of emotion”. During the course of deposing the company employee who loaded the candy onto the display counters, he was asked what the company called the shelf extenders. He replied “we call those profit pegs”. Profit pegs became the perfect catch phrase in the trial for the reason that those two words “profit pegs” perfectly embody the theme of the case, which is corporate greed over consumer safety.
The skilled attorney will give careful consideration to locating and utilizing catch phrases. Catch phrases may often be found by searching the literature of the defendant. For example, Clark Equipment Company, the manufacturer of forklifts which have a tendency to tip over and either severely injure or kill the driver when the top of the forklift crushes the skull or various parts of the body, refers to that crushing phenomenon as “the fly swatter effect”. This is found in their literature and demonstrates a rather cavalier attitude towards a problem which has rendered a number of their users paraplegic, quadriplegic, severely crippled or dead. Additionally, the fact that they have bothered to create a term for the phenomenon and include it in their literature, demonstrates clearly that they are familiar with the problem but chose to take no action to correct it.
Before each trial, search through the language of the case to determine if there is an innocuous term which you can develop into a thorn in the side of the opposition. Catch phrases are easy to create, easy to remember and easy to argue.
(3) Emotive Words
Emotive words are those words whose interpretation may be clouded by preloads; which invoke attitudes of hostility or which incite feelings which are rooted in such adverse emotions as prejudice or fear. Such words as demagogue, shyster, hick, wetback, dictator or quack have implicit messages which are derived from temperament, prejudice, background or experience of the jurors who hear such words.
Such emotive words are dangerous to use in the courtroom because they barricade the simple communication which we attempting to achieve with jurors. We encounter the additional problem that such words are generally chosen for the purpose of appealing to prejudice and have little to do with factual persuasion. Since we are proscribed to make prejudicial appeals, the avoidance of emotive words is recommended.
(4) Logical vs. Emotional Words
There are right brain emotional impact words and left brain, contemplative, philosophical words to describe the same event. For example, justice versus injustice. Justice is a left brain logical word which invites contemplation and philosophical discussion. It implies no call for action and seeks no remedy for a wrong. However, injustice is a right brain, emotional word which causes offense. It stirs people to action and inspires people to right a wrong.
If Martin Luther King had stood in his pulpit in Atlanta and called for “justice for the blacks in America”, he would probably still be doing it. However, Dr. King chose to go into the streets, be attacked by police dogs, knocked down by fire hoses, placed in handcuffs, thrown in jail and subjected to numerous other indignities, all for the purpose of demonstrating injustice. His demonstration of injustice stirred people to action and has caused many of the wrongs which he confronted to be corrected.
The skilled attorney should give careful thought to whether you choose to make a left brain appeal by utilizing logical words or whether you wish to make a right brain call to action by utilizing emotional words. Obviously, both appeals should be prepared and a combination of logical and emotional words should be part of the language of your case.