By Dr. Ken Broda Bahm:
Here is the most important thing you can ever possibly learn in law: Hyperbole will absolutely crush your chances of winning. Okay, maybe that’s a little over the top, but there is something about legal writing and oral advocacy that can sometimes encourage a tone of exaggeration that reduces credibility. Based on a list compiled by Gary Kinder at WordRake (courtesy of Eugene Volokh), there are some bad examples out there. One lawyer describing a case about bolts of cloth stored in a warehouse wrote, “This is a story of a legal system run amuck, a Kafkaesque demonstration of tyranny given free rein.” In another case, the Plaintiff wrote, “The Defendant’s actions can only be described as economic sodomy.” Really? That’s the only description?
Of course, there are many more common instances of hyperbole. Is the other side’s argument truly “ridiculous,” for example, or is it merely wrong? The tendency toward hyperbole comes in the form of over-emphatic phrasing, extreme framing, and exaggerated descriptions of the other side’s position. It can crop up in legal writing, oral advocacy, negotiations between parties, arguments before the bench, and even legal marketing. In litigation, advocates who want to come across as civil, reasonable, and credible know that it is often necessary to dial back on some of your most extreme rhetorical impulses. In this post, I will look at a few reasons why hyperbole doesn’t work and why its opposite, understatement, works better.
Hyperbole is Worse than the Plague
So, even if it doesn’t quite rise to the level of the Black Death, there are a few reasons why hyperbole is likely to backfire in a litigation context:
Because hyperbole shows a lack of experience. There is a certain law-student zeal in just opting for the most strident prose one can think of. But even seasoned litigators can occasionally fall victim to the exaggeration that comes from viewing one’s own case through an advocate’s lens. As Brendan Kenny writes in The Lawyerist, “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.”
Because hyperbole comes off as grandstanding for client’s enjoyment. Clients can be delighted when their lawyer socks it to the other side in the strongest possible terms. But it is generally best to avoid techniques that are more satisfying than effective. The hyperbole doesn’t add substance and isn’t likely to make the argument any more appealing to a neutral or skeptical audience. As Thomas Crane writes in the San Antonio Employment Law Blog, “The words we use may provide temporary satisfaction, but they may well lead to long-term pain.”
Because hyperbole invites counterargument. The natural response to an inflated argument or an exaggerated construction is to check it against reality. Is the other side’s argument really “incoherent?” If I can make minimal sense of it, it isn’t. Would the implications of the ruling really be to “destroy” your chances of a fair trial? If not, it might seem even more reasonable by comparison. The problem with hyperbole is that it calls attention, not to the substance of the argument you are making, but to the degree of force that you are choosing to put on it.
Because hyperbole exceeds the burden (and could create a new burden). In just about any situation other than comedy, choosing the hyperbolic expression over the direct and descriptive expression worsens your case. In litigation, it can be seen as stepping up to prove something you don’t have to prove. Calling a claim not just unsupported but “frivolous,” for example, can end up lowering the implied burden for the other side. If they succeed in meeting that minimal threshold of “not frivolous,” then that might seem like enough.
Because hyperbole is akin to crying wolf. If you use extreme expression to call out even common arguments, then what will you use in the event that you have an argument that actually does call for the extreme phrasing?
Understatement is Okay
“Understatement is a powerful weapon,” Brendan Kenny writes. “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.” Persuasion means more than just presentation of facts, it means participation by an audience. When an audience understands the message to be understated, they participate by adjusting it upward. When they see hyperbole, they respond by dialing it down. So the bottom-line choice between understatement and hyperbole is this: Do you want the audience’s participation to be working for you or against you?
If you want that participation working for you, then there are a few rules of thumb to apply:
- Don’t extend your argument even an inch beyond what you can credibly support.
- If you create a formulation of your argument that makes you feel good, ask whether it is likely to make a skeptical audience feel good as well.
- Lay out the information that allows your audience to reach their own conclusions, instead of ramming those conclusions down their throats.
- Choose the direct and economical expression over the purple prose of adjective-filled arguments.
- Whenever you can safely violate expectations by being more reasonable and less extreme than your audience would expect, take that route.
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Other Posts on Rhetorical Style:
- Should You Ask Rhetorical Questions? Yes, You Should
- Know Your ‘God Terms’ and Your ‘Devil Terms’
- Persuade Through Dialogue
- Ethos, Pathos, and Logos: Use All Three in Your Legal Writing and Oral Argument
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Image credit: 123rf.com, used under license (edited)