McElhaney on Litigation
The Right Words
The Language You Choose to Argue Your Case Can Help Make it a Winner
Posted Jan 25, 2005 4:24 AM CST
By James McElhaney
Angus walked into my office and put a cup of dark mountain roast and a walnut-apple bear claw on my desk. Instead of saying anything, he just looked at me expectantly.
“This is not because I was right when I predicted Judge Standwell would grant your motion for a summary judgment,” I said.
Angus smiled. “You’re right,” he said. “How long since you’ve worked on a genuine pro bono case?”
“Too long,” I said, picking up the bear claw. “Count me in.”
“Terrific,” said Angus. “Community Suppers—the charity that runs the string of soup kitchens and delivers hot meals to destitute shut-ins—is in trouble.”
“And we’re going to get them out?” I said.
“No,” said Angus. “We’re going to help Mindy Garcia get them out. She’s a bright young lawyer, and Community Suppers is her client. For all kinds of good reasons it wouldn’t do for us to take over the case.”
“So why does she need help?” I said.
“Because she can’t talk to a jury,” said Angus. “She doesn’t know how. Never tried a jury trial in her life. But unlike most lawyers, she’s aware of her problem and she’s smart enough to know she needs help.”
“Sounds like fun,” I said. “What kind of case is it?”
“I’ll let her tell you,” Angus said, and we went to the conference room where he started the video machine.
It was a tape of a mock trial Mindy had done with neighbors of her storefront law office serving as the judge and jury. A voice from off-screen said, “Ms. Garcia, you may proceed with your opening statement.”
“Thank you, your honor,” Mindy said, walking over to the jury. “Ladies and gentlemen, in this part of the proceedings it is my duty to give you what we lawyers call an opening statement. I want you to understand that nothing I say—and nothing that Mr. Reynolds, who represents the defendant, Rio Grande Renovators, says—is evidence. It’s just lawyers’ talk, intended to help you understand what evidence we expect to adduce during the course of this trial.
“The essence of this case—the gravamen of this cause of action—is the contumacious disregard by the defendant of its contractual obligations under the agreement at the heart of this dispute, with which the defendant has wholly failed, neglected, omitted and refused to comply.”
After 45 minutes more of some of the densest legalese I’ve ever heard, we figured out that Community Suppers had bought an old hardware store building from Rio Grande Renovators. The deal included brand new restaurant quality stoves, sinks, refrigerators, freezers, dishwashers and steam tables worth more than $350,000. But all Community Suppers got from Rio Grande Renovators was some worthless kitchen equipment torn out of an old cafeteria that had been closed for almost 20 years.
The directors of Community Suppers had not consulted their lawyer about the deal ahead of time and had paid the entire purchase price for the building before the kitchen equipment was delivered. So, despite Mindy’s verbal fog, we knew a little about the case before she came to Angus’ offices that evening.
Angus started right in. “Mindy,” he said, “don’t ever tell the jury that nothing you say is evidence. That’s shooting yourself in the foot at the beginning of the trial. You’re telling them to pay no attention to what you say. “Second, stop talking like a lawyer. When you say, ‘The gravamen of the cause of action is the contumacious disregard of the defendant to its contractual obligations,’ everybody zones out. People not only don’t understand it, they’re convinced you’re trying to pull the wool over their eyes with fancy talk.” “But that’s how I learned to talk in law school,” said Mindy. “Whenever I talk about some legal issue, those are the kinds of words that come to me.”
“I used to have the same problem,” said Angus. “Let me show you an easy way to learn how to talk like a real person when you’re in court.
“Make a vocabulary list for every case—words to use instead of traditional legalese. In this case, start by listing every word you can think of—good or bad—that you could use instead of ‘contract.’ ”
“Bad as well as good?” said Mindy.
“Exactly,” said Angus. “Words you should never use will often lead you to good ones that otherwise might never come to mind. Don’t cull through the words until you’ve listed every one you can think of.”
With the help of a dictionary and a thesaurus, Mindy started out:
Bargain ... Undertaking ... Commitment ... Promise
Dedication ... Obligation ... Compact ... Covenant
Bind ... Pledge ... Vow ... Assurance ... Pact ... Agreement
... Swear ... Guarantee ... Deal ... Handshake ... Gave their word ... Signed their names.
Then Angus and Mindy winnowed the list down to the kinds of words that speak to real people:
Bargain ... Deal ... Promise ... Agreement ... Gave their word ... Shook hands ... Signed their names.
Next, Angus said, “Why do we enforce contracts, anyway?”
“Because a breach of contract is unfair,” said Mindy.
“But why is it unfair?”
“Because people relied on the promise,” said Mindy.
“Exactly,” said Angus. “And what do you have to do to rely on someone’s promise?”
“Trust him,” said Mindy. “Believe him.”
Before long, they had another list of powerful words:
Believed ... Trusted ... Counted on ... Relied on ...
Took their word ... Depended on ... Had faith in what they said.
“Do those words also point you to how to talk about a breach of contract?” said Angus.
“Absolutely,” said Mindy. “ ‘Broke their promise.’ ‘Went back on their word.’ ”
“What about ‘reneged’ or ‘repudiated’?” said Angus.
“Not words real people ever use,” said Mindy with a smile.
“Wonderful,” said Angus. “Now let’s take a coffee break and then listen to you tell the story with your new words.”
Put It another Way
After the break, Angus said, “Counsel, you may proceed.”
Mindy stood up and said, “Ladies and gentlemen, I’m here for Community Suppers, the charity that runs eight different soup kitchens throughout the city and delivers more than 200 hot suppers every day to shut-ins who have no other opportunity for a hot meal. “They’re here to ask you to right a wrong.
“This case started more than three years ago, when the economic downturn hit our part of the country hard. Thousands were out of work, shelters were all filled, and many people couldn’t afford the price of a healthy meal.
“Community Suppers needed a new headquarters: a central kitchen with the equipment to make the hundreds of hot meals they delivered every day as well as the three meals they served daily in their soup kitchens to people who could walk in.
“After months of looking, they found the right place. Rio Grande Renovators—an out-of-state corporation—was offering an old brick hardware store building that could be converted to what Community Suppers needed.
“After three weeks of negotiations, they reached an agreement. They had a deal. Community Suppers would do all the interior fixing up themselves mostly with volunteer work—and Rio Grande Renovators would include more than $350,000 worth of brand-new restaurant stoves, sinks, refrigerators, freezers, dishwashers and steam tables in the purchase price of one-and-a-half million dollars.
“Then they put it all in writing and both sides signed it.
“Rio Grande Renovators gave their word, and Community Suppers believed them—they trusted them—not knowing that Rio Grande Renovators had no intention of keeping its promise to deliver the new kitchen equipment.
“So, when Rio Grande pointed out that the agreement called for Community Suppers to pay for both the building and the kitchen equipment before it was delivered, Community Suppers kept its word. It finished making all the payments before the kitchen equipment arrived.
“But Rio Grande did not keep its promise. Instead of delivering more than $350,000 worth of new restaurant equipment—stoves, sinks, refrigerators, freezers, dishwashers and steam tables—Rio Grande Renovators went back on its word. It delivered a truckload of useless junk: kitchen equipment torn out of a fallen-down cafeteria in Colorado that had been closed for nearly 20 years.
“That’s the wrong that Community Suppers is asking you to set right. At the end of all the evidence we’re going to ask you to tell Rio Grande Renovators that it’s got to keep its word and reimburse Community Suppers what it had to pay to other suppliers to get the equipment—the tools it had to have to do its work.”
Then, turning to the imaginary bench, Mindy said, “That, your honor, will be our case.” After Mindy left and Angus was locking up, I asked him what he thought. “Remarkable transformation,” said Angus.
“It would be nice if she took us to the negotiations with her words so we could see for ourselves what happened,” he said. “And give us the details that would make the bargaining come alive so we could judge the people by their conduct. We need to see Rio Grande’s treachery grow and feel Community Suppers’ outrage when the truckload of old junk arrives at the newly remodeled building.”
“Those are pretty advanced techniques,” I said. “She’ll get there,” said Angus.