by Susie Salmon THE LEGAL WORD
Susie Salmon is Assistant Director
of Legal Writing and Associate Clinical
Professor of Law at The University of
Arizona, James E. Rogers College of Law.
Before joining Arizona Law, she spent
nine years as a commercial litigator at
large firms in Tucson and Los Angeles.
Use Your Words
A careful lawyer
considers purpose and
audience in selecting each
word and constructing
Great lawyers craft every sentence—written or spoken—with
care. The best trial lawyers select each word in voir dire, opening statements, witness examinations, oral motions, and closing arguments
thoughtfully, considering every nuance and connotation. You can enhance the impact of your legal writing if you do the same.
Pretend that you are a criminal-defense attorney trying to select a
jury. Consider the wording of these questions in jury selection:
• Who on the panel needs to hear from the defendant in this case?
• Who wants to hear what the defendant has to say?
We all probably recognize that few, if any, jurors will raise their hands
in response to the first question. They have a general notion that the
defendant has the right not to testify,
and they do not want to seem ignorant
of that fact or cross the judge. The law
tells them they do not need to hear
from the defendant; even if their guts
tell them otherwise, their minds and
their egos will not let them admit it.
The second question, however,
might elicit some admissions. Sure!
I’m curious. I want to know the defendant’s side of the story. Answering
“yes” to this question paints me as
engaged and fair.
A careful lawyer considers purpose
and audience in selecting each word
and constructing each sentence. Some
lawyers may have studied rhetoric; Aristotle long ago counseled that
word choice can and should change depending on the perspective of
the speaker. One person’s offer of compromise is another’s extortion. One
party might say that a man took an item; the opposing party would insist
that the thief plundered the victim. 1
Psychological research confirms that word choice has a powerful impact on how we perceive reality. In a 1974 study by Loftus and Palmer, for example, after subjects watched a film of
a traffic accident, researchers asked subjects how fast the vehicles had been going. The wording of the question dramatically
affected the reported speed. Subjects asked how fast the cars had
been going when they contacted one another estimated a speed
almost 10 miles per hour slower than those asked how fast the
cars had been going when they smashed one another. The verbs
hit, bumped, and collided each elicited different speed estimates.
In a related experiment, participants who were asked how fast
the vehicles were going when they smashed each other were significantly more likely to report having seen broken glass in the
aftermath of an accident than those asked how fast the vehicles
were going when they hit one another. 2
Research also shows that vivid, concrete language makes facts
more memorable—and therefore more influential—than pallid,
generic language. In one study, researchers had subjects read trial
arguments regarding a drunk-driving case. The pallid version of
the arguments described the defendant as
having “staggered against a serving table,
knocking a bowl to the floor.” The vivid
version stated that the defendant “staggered
against a serving table, knocking a bowl of
guacamole dip to the floor and splattering
guacamole on the white shag carpet.” The
subjects who had read the “vivid” version
were more likely to conclude that the defen-
dant was drunk and therefore guilty. 3 The
image of the guacamole marring the beau-
tiful white shag burned in their brains; they
could see defendant stumbling out of the
party, three sheets to the wind, and they
knew that he had been intoxicated when he
climbed behind the wheel.
Think about a dog-bite case. A repair
person entered your client’s house through
an unlocked door, startled the family dog
sleeping on a pillow near the front door, and
the dog bit the repair person on the hand,
breaking the skin. Do you call the dog the
60-pound German Shepherd mix or a guard
dog Probably not. Instead, you call her a
family pet, or Lucy. You paint an image of
her, snoozing on her pink pillow, her head
resting on her favorite stuffed tiger, when
an intruder—a stranger—burst through her
front door, and her split-second instinct is
to protect her family.
Whether motivated by the principles of
ancient rhetoric or the observations of modern psychology, great lawyers spend time
and thought selecting their words because
they know that the payoff justifies the effort.
For the speaker, this requires significant
preparation in advance and perhaps some
memorization. For the writer, this simply
requires time, thought, and revision.
1. See Stephen E. Smith, A Rhetorical Exercise:
Persuasive Word Choice, 49 UNIV. OF SAN
FRANCISCO L. REV. FORUM 37-39 (2015).
2. See E. F. Loftus & J. C. Palmer,
Reconstruction of Automobile Destruction: An Example
of the Interaction Between Language and
Memory, 13 J. OF VERBAL LEARNING & VERBAL
BEHAV. 585-589 (October 1974).
3. See Robert M. Reyes, William C. Thompson
& Gordon H. Bower, Judgmental Biases
Resulting from Differing Availabilities of
Arguments, 39 J. OF PERS. SOC. PSYCH. 2-12