Hyperbole and overstatement do more harm than good. Hyperbole is exaggeration. Overstatement is an attempt to convince your audience by bludgeoning them with facts, arguments, and pleas to get them to accept your assertion.
If you tell your audience what they should think, don’t be surprised if they think the opposite just to spite you. Lawyers do much better when we calmly and methodically lead our audience to the conclusion we want them to reach, but allow them to reach it themselves. It’s called understatement.
Methinks They Doth Protest Too Much
As Justice Scalia advised, “Your objective in every argument … is to show yourself as worthy of trust and affection.”1 A good way to lose your case is to lose the trust of the judge and jury. This is easily done. Just add some sarcasm and snark:
This is the straw man fallacy in reverse. Above, the association gives itself a burden that civil litigants never have: proving that their opponent’s arguments are frivolous. Now all the plaintiff needs to do is provide a non-frivolous theory of why the association could be responsible for the brakes, clutches, and gaskets. In this way, the association’s overstatement tends to reduce the plaintiff’s burden of proving their case.
Consider the FBI’s response to Defendant Jay Michaud’s argument that the FBI concealed information from courts and prosecutors about how the malware it installed through a child pornography site operated:
In short, Michaud’s argument is outrageous, untrue, and not even supported by the flimsy “evidence” he offers.2
If Mr. Michaud can provide some facts and reasoning in support of his argument, he wins a battle he is ideally suited to win. The FBI’s overstatement presents Mr. Michaud with a challenge that a competent lawyer can likely meet: show that Mr. Michaud’s argument is not outrageous, not obviously untrue, and supported by some evidence. And the FBI needlessly risks losing a battle it never needed to fight by making an argument it probably can’t win.
You Shall Know These Lawyers by Their Insincerity
If the judge or the jury suspects that you don’t buy your own argument, they probably won’t bother listening to it. Consider this fact pattern:
- Plaintiffs sue a cruise liner for overcharges added to the price of shore excursions;
- They state under oath that they would have gone on the shore excursions no matter how much they cost; and
- They later describe the surcharge as “immoral, unethical, oppressive, and/or unscrupulous”.
The court’s reaction shouldn’t surprise anyone:
We also note that the Wangs stated they did not care what the excursions cost. It is therefore less than convincing that they are now outraged by the allegedly “huge” (fn. 6, ante) surcharge.3
Playing loose with the facts invites your audience to question your sincerity and suspect that you are trying to manipulate them. They may retaliate by rejecting your client. In short: avoid even the appearance of insincerity.
The Unexamined Case Is Not Worth Trying
According to Aristotle, “Knowing yourself is the beginning of all wisdom.” Here’s why we should apply this adage to our cases:
That is, we are used to thinking that our own case is better, and it often is. But that perceived advantage shouldn’t blind us to the merits of the other side. Another recent study (Lammers, 2010), found that when you perceive yourself to be at an advantage in a negotiation setting, that causes you to think of an opponent in less personalized, and less human, terms. When we advocate, we exaggerate our strengths and we minimize our opponents—to our detriment.4
If you exaggerate the strength of your client’s case in your mind, you will naturally do the same in your written and oral advocacy. Because your tone doesn’t fit the case that the judge and the jury are learning about, they will soon start doubting your honesty, sincerity, and competence.
And if the way lawyers behave at depositions accurately reflects their mental state, most of us have a lot of room for improvement. In this excerpt, it’s hard to see how the objecting attorney’s strategy here helps his client:
Compare that performance with the deposing attorney’s questioning (ending at 18:27) of a slippery witness in a defamation case:
The First Rule of Narrator Club: Don’t Be Unreliable
An unreliable narrator is a narrator whose credibility has been seriously compromised. Think of Verbal in The Usual Suspects, Leonard in Memento, and the narrator in Fight Club. For different reasons, all three are unreliable. Lawyers who are unreliable narrators typically fall into three categories: the Picaro, the Naif, and the Liar.
The Picaro is an exaggerator and braggart, the Naif’s unobjective viewpoint limits his perception, and the Liar deliberately misrepresents herself to obscure the weakness in her own case. Lawyers who fit these descriptions lose the trust of judges and jurors:
If you distort or even fudge, you’ll be found out. And if you’re found out, you’ve lost everything there is to lose. You’ve lost credibility.5
Whether the lawyer is morally culpable for losing the trust of the judge or the jury, the result is the same: no one will listen.
Now for the fun part. Let’s look at how we can respond when lawyers throw overstatement in our direction.
Appetite for (Self) Destruction
The key to defeating overstatement is realizing that it contains the seeds of its own destruction. In a type of verbal judo, your opponent’s overstatement exposes them to a counterattack. The power of your counterattack depends on how well you take the force of their overstatement and hurl it back at them.
In other words, the best way to deal with an overstater is to present the court or the jury with the most extreme statements from your opponent and then move on. Bryan Garner provides a great example from a reply brief:
In what must be some kind of record, the 31 pages of Plagiar’s brief contain more than 200 expressions bordering on the hysterical: the leader by all counts is abusive and its variations (17 appearances), next followed by permutations of the root word fraud (fraudulent, defrauded) (14), then extort (extortion, extorted) (13), and close behind it phony (12).6
Now it’s time to find out how we can avoid ending up like Plagiar’s lawyer.
Lend Me Your Ears
In The Elements of Style, Strunk and White note that it is “seldom advisable to tell all.” This is particularly true in fiction:
One of the most useful and powerful devices for the fiction writer is understatement. You tell the reader less so that the reader knows more. Instead of having everything spelt (sic) out, the reader is given, in a very careful way, just enough information for the imagination to go to work.7
When you use understatement, your audience fills in the blanks you have left with facts in your favor and comes to their own conclusion—the conclusion to which you led them. In this way, minimizing the significance of something maximizes its effect. Let’s look at the three main flavors of understatement: litotes, euphemism, and meiosis.
Litotes is deliberate understatement that works by making your point by stating the opposite of what you mean. In this example, the court highlighted the plaintiff’s questionable mental health by praising his creativity:
Euphemism is a polite way of saying something unpleasant. In law, this means going to great lengths to avoid calling someone a liar, as the Idaho Industrial Commission takes pains to do in this order:
As noted at the outset, although the Commission has no reason to believe the Claimant intentionally dissembled the truth, he is a poor historian, with a somewhat fallible memory, both problem which are compounded by his limited education and language difficulties.
Meiosis (“lessening”) combines understatement and euphemism to enhance the impression in the reader or the hearer, as Bryan Garner’s example illustrates:
Dagwood wakes up late, trips over the children’s toys, misses the bus, rushes up the stairs instead of waiting for the elevator, only to discover that it’s Saturday and he’s not supposed to be at work. Dagwood grumbles, “Today is not my lucky day.”8
After reading this, the reader ratchets up Dagwood’s description of his difficulties to the level that the reader thinks is appropriate. With each understatement, Dagwood’s credibility increases.
Wisdom of the Crowd
Mercutio wins the prize for greatest understatement:
And now for a Friday #PersuasionPoll:
Best understatement of all time?
— Brendan M. Kenny (@KennyBrendan) May 6, 2016
Mercutio downplayed his own fatal wound. This makes his death all the more tragic. And he dies the way he lived, defiantly rejecting haughtiness, melancholy, and sentimentality.
Lawyers can learn much from Mercutio. Lawyers often mistakenly appeal heavily to the jury’s sympathy when trying a case, especially when they are representing the plaintiff. But sympathy is a low-power strategy. Much better to offer facts that encourage your audience to view your client as the tragic hero who suffers adversity, challenges it, and never gives up. The lawsuit then becomes part of the hero’s journey. Ultimately, the judge and jury must intervene only because the hero cannot overcome the injury on their own.
This is a much stronger call to action than sympathy.
One Little Barbed Arrow Is Enough
If for no other reason, lawyers should use understatement because it makes our opponents scared. Here’s how Anglican clergyman Charles Kingsley addressed Catholic convert John Henry Newman’s effective use of understatement:
I know that men used to suspect Dr. Newman—I have been inclined to do so myself—of writing a whole sermon, not for the sake of the text or of the matter, but for the sake of one single passing hint—one phrase, one epithet, one little barbed arrow which, as he swept magnificently past on the stream of his calm eloquence, seemingly unconscious of all presences, save those unseen, he delivered unheeded, as with his finger-tip, to the very heart of an initiated hearer, never to be withdrawn again. I do not blame him for that. It is one of the highest triumphs of oratoric power, and may be employed honestly and fairly, by any person who has the skill to do it honestly and fairly. But then—Why did he entitle his sermon “Wisdom and Innocence”?9
Because Newman never wrote anything to justify Kingsley’s allegations, Kingsley was reduced to warning his readers not to trust Newman, no matter what Newman wrote.
The result? Newman skewered Kingsley for deeply wronging him in Apologia Pro Vita Sua, the book became a bestseller, and Newman later became Cardinal Newman. Not much more was heard from Kingsley.
Understatement is a powerful weapon. But don’t use jargon-laden legalese and call that understatement. Legalese is the enemy of effective understatement, persuasion, and all things bright and beautiful. It invites this response:
— Zoe Tillman (@ZoeTillman) May 18, 2016
Comas Are Serious
One other thing understatement is not: a less-than-human reaction to your client’s—or the opposing party’s—difficulties. As we learn from The Smiths’ Girlfriend In A Coma, being too casual about tragedy can be a bit creepy:
Girlfriend in a coma, I know
I know, it’s serious
Girlfriend in a coma, I know
I know, it’s really serious
There were times when I could
Have murdered her
But you know, I would hate
Anything to happen to her
This type of humorous creepiness makes for good music, but poor persuasion.
Judges and juries probably expect you to exaggerate. So, defy expectations and strengthen your position by understating it. If nothing else, at least you’ll scare your opponent.
Featured image: “Illustrations from “Le avventure di Pinocchio, storia di un burattino”, Carlo Collodi, Bemporad & figlio, Firenze 1902″>Wikimedia Commons.” The image has been cropped at the edges.
Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges xxxiii (ThomsonWest) (1st ed. 2008). ↩
Gov’t’s Consolidated Response Defs.’ Mot. Dismiss & Reply Re Mot. Reconsid., U.S. v. Michaud, No. CR 15-5351 RJB, at *8 (W.D. Wash. May 6, 2016). ↩
Bryan A. Garner, The Winning Brief 338 (Oxford University Press) (2d ed. 2003). ↩
Bryan A. Garner, The Winning Brief 42 (Oxford University Press) (2d ed. 2003). ↩
Bryan A. Garner, The Elements of Legal Style 154 (Oxford Univeristy Press) (2d ed. 2002). ↩
Venerable John Henry Newman, Apologia Pro Vita Sua 33 (Oxford University Press) (1913). ↩