Words. Hidden Meanings

• Author: John Froemming
• Pages: 10-11

Published in Litigation, Volume 47, Number 4, Summer 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 10

should. Not a little more—much more.

They vastly under-edit, over-include, and

over-present, thereby weakening their

work and effect.

Mark Twain is credited with saying, “I

didn’t have time to write a short letter, so

I wrote a long one instead.” Surely, it takes

more effort to pare things down and get

to the point with meaning and force than

it does to ramble.

How can we do it better?

First, make shorter presentations.

The foundation of more potent and more

persuasive arguments is a crystal-clear

understanding of the points to be ar-

gued; an unwavering focus on the per-

spective of the reader or listener; and a

dedication to tightening and wholesale

slashing of anything that unnecessarily

lengthens, repeats, distracts, or softens

the focus.

Efficiency often grows when the space

or time is tight. The outer limits of words,

pages, or minutes should not be the guide.

Speaking time and page counts should

be dictated by the purpose. Make the ar-

guments as effectively as possible. Once

you’ve concisely and powerfully made

your points, stop writing, stop talking.

Sit down.

All of us think that we’re being rea-

sonably efficient, that our drawn-out

verbal routines are necessary. They’re

not. Content always can be stated more

clearly and briefly. Sometimes it can be

cut altogether.

Here’s a way to start: Write down your

five best arguments. How would you say,

briefly, “We’re asking the court to find X

for the following five reasons” and simply

name them? Not all submissions will be

that rapid-fire. But they could be. They

would be better if they were.

Second, call less evidence. We include

too much and prune too little. Presenting

evidence must be done thoughtfully, not

impulsively. Instead of asking why you

wouldn’t present a particular piece of

evidence, ask why you would. Evaluate

each choice from the perspective of the

decision maker. Press truly essential, core

evidence. Ask whether, in light of it, sec-

ondary evidence has any real prospect of

affecting the outcome. If not, leave it out.

Third, ask fewer questions. Give great-

er consideration to the actual purpose of

each question. If, realistically, nothing can

be gained, better to pass than to inquire.

Sometimes the best strategy is to give the

witness rope by getting the witness talk-

ing. But those times are rare.

Stripped-down, cleaned-up litigating

also means shorter, more productive mo-

tions, hearings, and trials. As advocates,

we should say all that is necessary, but

only what truly is necessary. We should

strive for significantly more persuasive

value per minute of talking, value per

piece of evidence presented, and value

per question asked.

We should do it because more focused

advocacy is more persuasive advocacy. q

WORDS

Hidden

Meanings

JOHN FROEMMING

The author is a partner with Jones Day.

As a younger lawyer, I took everything

at face value. Only later did I realize that

much of what I heard from opposing

counsel simply did not mean what the

words said, but rather something else in-

stead. The same was true for judges. They,

too, often meant something other than the

words they were saying.

To pay it forward to the next generation,

here are some common phrases uttered in

deposition or in court, along with what

might really be intended by their speaker.

When the deposing lawyer says to the wit-

ness, “I’ll come back to that” a lawyer re-

ally means That’s a negative point for my

side; I’m never coming back to it.

“Why do you say that? What do you

mean by that?” means I just got a nice

admission from you; now go ahead and dig

a deeper hole for yourself.

“Did you consider … ?” means I’ve trapped

you; either you did not consider it and thus

were careless, or you did consider it and

thus were willful.

“Have you completed your answer?”

means Stop right there; I now have what I

want from you on this point, and my record

is clear. Please don’t muck it up.

“Is it fair to say that … ?” means Let me re-

cap what you just said so that I can use it in

my summary judgment brief. If that doesn’t

work, I’ll use it for my cross-examination

of you at trial.

“If you don’t hear or don’t understand

any of my questions, will you let me

know?” means If you later say you misun-

derstood, I will play this part back at trial.

“Is it your testimony that … ?” means I’m

using reverse psychology on you to show

that you lack credibility.

“Have you ever told anybody that … ?”

means I’m setting you up for impeach-

ment at trial.

“Are you aware of the penalties for per-

jury?” means I think you’re lying.

“Is Mr. Smith an honest man?” means

Please vouch for my witness; at least ac-

knowledge that you can’t say my witness

is dishonest.

“You have no reason to deny receiving

this document?” means This document

might not be admissible, but please help me

try to get it into evidence anyway.

Asking, at the end of the deposition, “Is

there anything that would refresh

your recollection about any of your