12/29/2014 02:13 pm ET Updated Dec 06, 2017

Courtspeak: How Words Can Both Move and Confuse


Author George Orwell's famous, nerve-shattering novel, 1984, depicts a nightmarish, dystopian world in which the English language has become obsolete -- an antiquated system referred to as "Oldspeak." The government has replaced it with a new narrower language, "Newspeak," in order to gain control over society. The reason is this: limiting language limits free thought and expression, which in turn produces docile, obedient citizens. Although Orwell's novel was probably meant to be both symbolic and hyperbolic, he knew well that language can alter tone, instill clarity, calm nerves, build confidence, and warm hearts, but he also knew that it can confuse, shift meaning, distract, and redirect.

Language serves as a pathway for intellectual and emotional data, two fundamental ingredients in human relationships. Good trial lawyers understand the power of word distinction -- particularly in communicating with a jury -- and recognize that the legal system is a living, breathing creature that is held together by language.

If a meaningless pop song or commercial jingle can lodge itself in our brains, then a catchy turn of phrase, however light in tone, can also wield great power, especially in a courtroom. As disturbed as I was by O. J. Simpson's acquittal, I must, on the basis of pure persuasive technique, bow to the verbal, even poetic, genius of the late Johnnie Cochran, who could seduce a jury with the finesse of Don Juan. Cochran steered the proceedings away from his client and targeted the LAPD instead, which in his argument was portrayed as a racist, sloppy hotbed of corruption. He persuaded the jury that this wasn't just a murder case but a "journey toward justice." He insisted that the two lead detectives, Mark Fuhrman and Philip Vannatter, were not regular cops doing their civic duty but rather "the twin devils of deception."

Cochran's words lit that trial on fire. He described his own defense of O. J. Simpson in feverish terms, even comparing it to the civil rights movement. When it came to one piece of evidence, a bloody glove found at the scene of the slayings of Nicole Brown Simpson and Ron Goldman, Cochran used actual poetry to plant seeds of doubt in the jurors' minds: "If it doesn't fit, you must acquit." How's that for parking language within a jury's collective nervous system?

The murder trial stemming from the 1992 shootout between U.S. federal agents and white supremacist Randy Weaver in Ruby Ridge, Idaho, showed us how a single word can change the prism by which a jury views the entire narrative. Three people were killed that day: Deputy U.S. Marshall Bill Degan; Weaver's wife, Vicki; and the Weavers' fourteen-year-old son, Samuel. Throughout the trial, the prosecution repeatedly, and deliberately, referred to Weaver's property as a "compound" to evoke a military-type facility in the minds of the jury. On the opposing side, famed criminal defense attorney Gerry Spence challenged the government's language, arguing that Weaver was only defending his home, not a compound, when federal agents swarmed it. Spence powerfully described the property as "this little residence with the chickens, the zinnias, the dogs, and the kids . . . The FBI people want to call it a compound." Spence further told the jury, "Why? Because if you kill them in the compound, it's OK, but if you kill them in the house, it might not be OK." In the end, the jury adopted Spence's translation and acquitted Randy Weaver of murder.

In his essay, Politics and the English Language, George Orwell, author of 1984, wrote, "The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink." In the 1996 movie adaptation of Jonathan Harr's nonfiction book, A Civil Action, lawyer Jan Schlichtmann, played by John Travolta, represents the families of children in Woburn, Massachusetts, killed by cancer-causing toxins dumped in the water supply. In one brilliant scene inside the judge's chambers, Travolta's character argues that the jurors will never understand the convoluted instructions that accompany the verdict forms. While the judge, played by John Lithgow, dogmatically proclaims that the instructions are crystal clear, Travolta's character indignantly exclaims that the words of the instruction sound as if they had been "translated from English to Japanese and then back to English again." Harr's characterization was spot on. I can't recall the number of times I've watched jurors' eyeballs glaze over while listening to a judge explain the law and rules of deliberations. The problem is, these instructions are so tangled, dry, and bland that they are nearly impossible to fully comprehend. It's like speaking another language--a tongue of legalese that only heavily starched Ivy League attorneys can decipher. Although I realize that such directives shouldn't be expected to entertain us, the language used to convey necessary information often leaves jurors in a limbo state of muddled comprehension. Author and legal professor Peter M. Tiersma lays bare the deep-seated danger of such opaqueness: "[B]ecause the instructions are so hard to understand, however, it is uncertain how well jurors actually follow the law in reaching a verdict, even when they sincerely want to." John Travolta's character in A Civil Action makes a final unsuccessful, yet poignant, plea to the judge for clarity: "You're asking these people [the jury] to create a fiction that will stand for the truth, but won't be the truth."

James Boyd White, a professor of law and of English language and literature, sums up brilliantly why we should expect language to play a prominent role in our justice system: "One reason language is hard to talk about is that it is always a social as well as an intellectual activity. It is not merely a way of communicating information but also a way of expressing and managing relations between people." Like fish is to water and sound is to music, so language is to law. The two are inextricably linked, and the evolution of their dance continues to have a profound effect on the condition of our criminal justice system.