January 01, 2016

Clarity of Expression: The Keystone of Successful Advocacy in Dispute Resolution

Avoiding vague and opaque language is key to successful dispute resolution.

Paul Mark Sandler

Clarity of expression is the essence of legal persuasion. Whether in court, arbitration, mediation, or settlement talks, favorable dispute resolution relies on effective communication.

Yet, in the practice of law, we are often confronted with vague and opaque writing and speech. This opacity has many causes, chief among which are lack of preparation, the abandonment of logic, and the failure to mold the message to the audience. Other causes include a misuse of emotion, lazy delivery, careless arrangement, confusing visuals, and the simple failure to recognize when to stop talking.

There are, of course, countless examples of the lack of clarity in the legal profession. For a small sample, consider the following:

  1. Counsel asks a witness in trial: “Do you know Tyra Jackson, and that she is the girlfriend of the defendant?” (See Stephen Saltzburg, Trial Tactics 54 (3d ed. 2012).) If the answer is “yes,” to what does “yes” pertain? Knowing the girlfriend? Or that she is the girlfriend of the defendant? Counsel should have delineated the compound question into two separate questions.
  2. During an appellate court oral argument in a case involving a question of jurisdiction, a judge once asked counsel: “Well, how did you get here?” Counsel responded: “I drove from Baltimore,” prompting robust laughter from observers. Replacing “you” with “the case” would have clarified the question sufficiently. (This example calls to mind one of Mark Twain’s quips, that “the difference between the almost right word and the right word  . . . is the difference between the lightning-bug and the lightning.” George Bainton, The Art of Authorship 87–88 (1890).)
  3. Contracts often neglect to clarify substantive questions. Consider this boilerplate text from a contract under the heading “Dispute Resolution”: “The parties hereto agree that before filing any lawsuit in any court they will initiate and complete mediation in an effort to resolve their differences.” The contract fails to clarify what would occur if a dispute were to arise between the parties on the last day before the statute of limitations expires. The term “complete mediation” is poorly defined.

These three examples are hardly unusual. They illustrate just how frequently legal communication leads to misunderstanding. We can always do better. Below I describe a variety of practices that can help you sharpen your oral and written communication, in and out of court, arbitration, or mediation. I hope they may be especially useful to young lawyers, but all of us could use a refresher now and then.

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