Words You Can't Say In Court

Here at the Appellate Record, we'd like to apologize for the last week. The practice of law has really interfered with the whole blogging thing.

And it's all about you, dear reader.

Actually, it's all about me, but I digress.

While I was out, the Appellate Record has been taking over the world.

Here we are listed amongst 100 Appellate Twitter Feeds to Follow. We're listed 18th. Some might say it's alphabetical, but I prefer to think we rank 18th of 100.

Then there was the Texas Lawyer Article about things you should never say in court.

Many of you sent very kind words and also very interesting e-mails about that article of practice pointers.

After the jump, confirmation from an actual juror that at least one of the practice pointers was correct.


In the Texas Lawyer commentary, I made some observations about little throw-away adverbs or phrases that make one untrustworthy to the jury or to the judge. These verbal ticks promise what you don't deliver, or try to insert a sneaky short cuts where you ought to be showing your work. What I mean are things like:

  • "Clearly"
  • "Obviously"
  • "Briefly"
  • "Just a few more questions"

Someone who read the column recently served on a criminal jury. In fact she is kind of a super juror, because she's also a lawyer coach.

I'm talking about Debra Bruce from Lawyer-Coach. After the column ran, she e-mailed me with her experience as a juror. If you don't believe that your verbal ticks can degrade your persuasive power, consider Debra's experience as a juror evaluating whether video surveillance evidence was sufficient to identify the defendant:

. . . I served as a juror recently in a criminal matter. The prosecution kept saying “clearly” and “absolutely”. It was not persuasive, and a little offensive to the judgment of jurors. It had the effect of reducing their credibility because they engaged in hyperbole. There was surveillance video in evidence, but the images were not clear enough to identify the defendant beyond a reasonable doubt. Testimony was unconvincing. The defendant was acquitted.

The outcome of the case didn’t turn on the prosecution’s word choice, but that certainly didn’t help the case. Those words were memorable in an unhelpful way.

Ouch! Think about that: "memorable in an unhelpful way."

Kind of like the unhelpful effect that the memory of the Hindenburg had on  travel by dirigible.

It might be better not to be remembered at all.

Clearly, the next time you catch yourself falling into that little trap, remember the Hindenburg.

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