How do you simplify your case’s “story” into one unified theme – and set it apart from all the other cases on the judge’s docket? The key is word selection.

By Roger Dodd and Patricia Kuendig, Family Lawyers

at-trial-words-matter250Whether your trial is to a jury, an arbitrator, or judge, it is imperative that you get your “story” across to the fact finder to win. The factual complexities of family cases create a harsh environment in which to locate, encapsulate, and communicate that story. To the uninitiated, a family case might seem commonplace or easy. After all, everyone knows that the court should take into consideration the children’s best interests, right? However, anyone who has been faced with the task of packaging a family law case knows the challenges of developing an apt, simple, and concise story that represents years of a complex personal and financial relationship.

For example, consider a relationship with 22 years of interactions, multiple children, two people who thought they would love each other forever and started with nothing, yet built a business and amassed a small fortune. Now add in a falling out of long-time business partners complete with fraudulent conduct, or other criminal concerns, mixed in with even more multi-layered emotional aspects of trying to guide offsprings to adulthood. It is like trying a construction defect case, a criminal conspiracy case, and a breach of fiduciary duty case all at the same time.

How do you simplify that story into one unified theme – and set it apart from all the other cases on the judge’s docket? The key is word selection. Winston Churchill famously said: “If I had more time, I would have written a shorter letter.” Taking the time to select a few words carefully will help you to convey the desired message for your case.

Lawyers who fail to create a concise, compelling narrative for each family law case will leave fact-finders to view a complex, fact-intensive odyssey as just another run-of-the-mill case: something they’ve heard a thousand times before. If you fail to make your case unique, then the judge is likely to dispense cookie-cutter justice.

We must use words to create the perfect narrative – but which words to chose? As Mark Twain said, “The difference between the right word and the almost right word is the difference between lightning and a lightning bug.”

Newly-developed neuroscience posits that the brain performs amazingly fast and predictable unconscious associations when stimulated by the right word or image(s). In addition to free-associating or brainstorming words, try letting your mind go to the background music when considering a phrase – then see the picture evoked by that music. We have recently begun experimenting with this, and we have noticed that certain words evoke similar music in most people.

Here are some examples.

1. “We will show that the client’s husband is a Machiavellian genius whose feral malevolence is covered in a thin veneer of culture and education.” Will a judge instantly buy that sentence, or is it too driven by lawyer-speak? If it is, then the judge’s brain is likely to involuntarily, immediately, and predictably reject the statement – and the lawyer who gives it. No one wants to be manipulated by a lawyer spouting pretentious phrases.

How about this: “The husband lurked for 22 years to achieve his goals.” No fancy words or long sentences – just an immediate, mental image. Lurked. Do not think about it; just let your mind go there. What picture comes up in your brain? Is it a bright, sunshiny day? Or is it dusk with shadows? Can you see the face clearly? Is a child or a woman at risk, or perhaps both? Is he about to do good or evil? All of our brains go to similar images, pictures, and feelings – involuntarily, instantly and predictably.

That is lightning, not a lightning bug.

2. “We will demonstrate that consistency and stability for the children should take precedence over the mother’s desire to relocate to another state.” You could simply state that these children are stable in their environment, but what image does this bring to mind? What music do you hear? Anything?

What about this: “Relocating the children will burst the safe bubble built around them since birth.” Are you hearing a lullaby being sung by one of your parents? Perhaps a fireplace in a cozy, protected home? These words also set up your chapters of argument and cross examination because you can “construct” their bubble factually.

3. Word selection can be very effective when you “label” a person or piece of evidence. For instance, a prenuptial agreement is a legal term. If your client benefits from one, try labeling it “the negotiated contract” or even “the marriage promise.” On the other hand, if your client wants to set such an agreement aside, perhaps it could be labeled “the surprise document” or the “exploitation agreement.” There are a myriad of other examples; choose the right one for your case and your judge.

Spending a little extra time on your choice of words can have a significant impact on the outcome of your trials. In the wise words of T.S. Eliot: “Only those who will risk going too far can possibly find out how far one can go.” Your clients deserve it.


Roger J. Dodd is a Fellow of the AAML, the IAML, and the American College of Family Trial Lawyers. He has been Board Certified by the National Board of Trial Advocacy in Civil Trial Practice for more than 21 years, and he has been listed in Best Lawyers for more than 20 years. www.doddlaw.com

Patricia Kuendig’s primary office is in Park City, Utah. She is also licensed in Florida and Georgia where she maintains active cases. She has been included in Super Lawyers as a Rising Star in the area of Family Law for the last seven years. www.doddkuendig.com