I wrote last about credibility in the context of preserving one’s reputation for honesty. I doubt many lawyers will argue with the importance of reputation. However, at a more granular level, there are more subtle ways of losing credibility than being untruthful with the opposition, a judge or your client. I’m thinking here about the tendency in our profession to exaggerate or overuse hyperbole in correspondence, briefs or argument.
Yes, “this bag weighs a ton” is more colorful, immediate and powerful, than merely, “this bag is heavy.” But it’s a slippery slope. As I write this, however, it occurs to me that the risk may actually be less about preserving credibility, and more about simply being a better advocate. The goal in our writing and argument should be less about telling a judge, jury or opposition that a course of conduct was malicious or–another good one–heinous. Our goal should be to drive the point home using the facts themselves. Show, don’t tell, as I hear in my sleep from all those fiction workshops. Describe the facts which lead us to conclude on our own that the conduct was malicious or heinous. If done properly, you can leave out the hyperbole and adjectives entirely.*Back to the heavy bag, saying it “weighed a ton” is more powerful than simply “heavy,” but “the bag weighed 300 lbs.” or “plaintiff could not lift the bag without assistance” is more compelling still. We trust this statement, not because someone else has concluded for us that the bag was “heavy” (a relative term), but because most of us can infer from our own weight that 300 lbs. is heavy. Describe the facts precisely and well; if the bag truly was heavy, we’ll know it.
I know when I receive a letter or a brief with hyperbole or exaggeration my first thought is not, “Wow, we’re in trouble.” Typically the opposite. This is because I know that if my client and I have something to worry about there won’t be any need to cloak the facts in fiery adjectives or other nonesense. Again, if the facts are good or bad enough, they’ll speak for themselves.
I suspect it’s because judges are so inundated with exaggeration on a daily basis that they often seem at their wits-end during law and motion calendar. There’s only so much of it one can take without growing tired and cynical. I’ve never sat as a judge, but I sometimes imagine what they must be thinking, in their black robes presiding over lawyers bickering over interrogatory responses like little children: “Somebody is really paying these people several hundred dollars an hour for this?”
Exaggeration in the courtroom is not dissimilar from crying wolf. The first time we hear a lawyer suggest a defendant was calculating or heartless it might carry some impact. But, like the gun in the first scene of a play, hyperbole and adjectives generate an expectation. If the lawyer doesn’t deliver the goods by the end of the show, the audience is going to want a refund. And they’ll deserve it.
*An exception being adjectives that are specifically drawn from applicable jury instructions. If the instruction requires the jury to conclude conduct was “malicious” to impose punitive damages, then a lawyer should use the term itself. But don’t just conclude the conduct was “malicious,” describe the conduct in such a way, with facts, that no sane person could reach any other conclusion.