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January 01, 2017

Litigator's Muse: William Butler Yeats and How You Say Your Case

Michael E. Tigar

In a Dublin museum, there is a manuscript of William Butler Yeats’s poem “The Second Coming.” Yeats wrote:

And what rough beast, its hour come round at last

Marches towards Bethlehem to be born?

He struck out “marches” and wrote “slouches.” This is one of the wisest edits in the history of literature.

As I wrote in my earlier essay, we persuade with impressions. For the most part, we must create those impressions not with paint, but with words: our words in jury argument, the witnesses’ testimonial words, the judge’s words in jury instructions, the words in our pleadings. The impression I have in mind does the case no good unless I can express it, or have the witnesses do so. A young writer said to Stéphane Mallarmé, “I have an idea for a poem.” “That’s too bad,” Mallarmé said. “You don’t make a poem with ideas; you make it with words.”

The words we choose must convey the impression to a particular audience. Our audience—jurors or judges—will interpret what we say with the social and cultural attitudes they bring with them. Anaïs Nin wrote, “We do not see things as they are; we see them as we are.” She could as well have said that we understand words not as they are, but as we are. Language is not universal: We do not all conjure the same mental picture from any given word.

Here is a word: “pediatrician.” Did you, the reader, conjure an image of a male pediatrician or a female pediatrician? If we use a word—“truck,” “hotel,” “lover,” “kiss,” “refugee”—we must surround it with just enough context so that our audience has the same mental picture, the same impression, that we want them to have. If the witness says “truck,” each of 12 jurors may see in his or her mind’s eye a different truck. If it matters to your case what “the truck” looked like, descend to particulars.

We must use the right words, and not too many of them. “Omit needless words,” say Strunk and White in that iconic little treatise on writing. But what kinds of words are presumptively needless? Unless we ask that question, the admonition is too general to be helpful. C.S. Lewis warned us against using adjectives and adverbs as a substitute for good evocative writing. Write well, and the readers or hearers will discover for themselves that something is “mysterious” or “loathsome.” “Let me taste for myself,” Lewis said, “and you’ll have no need to tell me how I should react to the flavour.” He gave us an example: In Donne’s couplet:

Your gown going off, such beautious state reveals

As when from flow’ry meads th’hills shadow steales

beautious is the only word of the whole seventeen which is doing no work.


C.S. Lewis, Studies in Words 318 (Cambridge Univ. Press 2d ed. 2013).

Elmore Leonard has said much the same thing: “easy on the adverbs.” When Edward Bennett Williams wanted to excoriate the prosecutors in the John Connally case for making a plea bargain with a thief and confessed bribe-giver, he used a figure of speech. He described the flawed bargain, in plain words delivered in a somewhat censorious tone of voice. He noted that the prosecutors had helped this cooperating witness to keep his law license: “They dropped this piranha back in the tank.”

Someone comes forward now and asks, “Where do I learn what words to use, and not too many of them, and perhaps with an occasional figure of speech to liven things up?” Most judicial opinions, legal briefs, law student memos, and legal treatises are not good places to look. In law school and in thinking about “the law,” we often use or imagine words that are distant and different from the way that people talk to one another about matters that concern them. Justice Brennan told me about his first trial. He was appointed counsel for a young man charged with vehicular manslaughter. The defendant testified. Brennan called a neighbor as a character witness. Question: “What is the defendant’s reputation in the community for veracity?” The neighbor thought for a bit and said, “Well, he’s is a careful driver, if that’s what you mean.” Brennan tried again, without success. Finally, the judge interrupted to say, “He means to ask if the lad tells the truth. Young Mr. Brennan has been off at Harvard Law School and has forgotten how to talk to folks.”

Think of the journalist’s lead. In good news writing, the first paragraph or two tells us the who, what, when, why, how. It sets out the basic elements of an impression of the story that is to follow. It should make us want to read on. Read the work of good journalists with an eye to figuring out how they chose the few words with which the story begins.

Consider, then, that in a trial, much of the story must be told with questions and answers, with witnesses on the stand. Pick up and study a few mystery novels by Robert Parker, featuring his detective character Spenser. The action in Parker’s novels is driven largely by conversations—dialogues, if you will—among the characters. The words are those of ordinary speech, their intensity largely created by the rhythms of dialogue. Elmore Leonard tells us: “[C]oncentrate on the voices of the characters telling you who they are and how they feel about what they see and what’s going on.” The “characters” in our trial are the witnesses.

Taking the next step, read widely from poets whose work is descriptive and whose choice of words makes their imagery accessible. Yeats is one such poet, and so are Wordsworth, Whitman, Sandburg, and Melville. When Sandburg tells of Chicago, “city of the big shoulders,” or Wordsworth is “lonely as a cloud,” we may see an image and, more important, how to create an image.

Read transcripts of great advocates’ jury work—Clarence Darrow, Edward Bennett Williams, Clara Shortridge Foltz. See how these lawyers directly addressed jurors, weaving words into impressions that their hearers could seize and hold on to.

Our words, and those we get from the witnesses, are not chosen in the abstract. They will be heard and understood by people at a given time and place. In 1971, I was counsel for Fernando Chavez, Cesar’s son who was charged with draft refusal. The case was set for jury trial in Fresno, California. Fernando and his father would be defense witnesses. Jurors would have been witness to the farm worker organizing campaigns, and some of them would work for growers. It is not far from Los Angeles to Fresno, but I was an outsider. I checked into a motel a week early and listened to local radio and television stations, and read the local newspapers. What were people saying about the events that concerned them, in what words and in what tones of voice? Fernando was acquitted.

Carl Sandburg—whose words created powerful impressions—warned, “be careful what you say.” Words are “fine” and “strong” and “soft”—their character determined by the uses to which we put them. Choose and use them well.

Michael E. Tigar

The author is a former chair of the Section of Litigation and author of Fighting Injustice, Persuasion: The Litigator’s Art, Examining Witnesses, and Thinking About Terrorism: The Threat to Civil Liberties in Times of National Emergency (ABA Publishing).