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‘Lawyerese’ may work well in journals but not in the courtroom!

Wednesday, June 23, 2010
posted by Douglas Keene

You spend years and years in school learning how to communicate and write to get good grades. Then you get out into the real world and discover what worked well in the ivory tower of higher education can really mess you up in the courtroom! And in case you have not yet discovered that—here’s a head’s up!

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. Conversely, witnesses who were not taught ‘lawyerese’ “were more likely to work harder to answer the questions accurately and were more likely to become frustrated and nervous in court”. In other words, they benefited more from practicing comprehending questions than they did in rehearsing their answers.

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. Scroll down to the bottom of this page on our website to register to see the articles we’ve written on witness preparation over the years. Begin the process of ‘un-learning’ what got you A’s in the classroom and open the door to good grades for your jurors.

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