For this article, I had intended to outline some useful software for lawyers. But the website, Win More Cases,1 has just listed its “Top 5 Software Programs for Lawyers”2 and I could do no better than to refer you to that list. The software that Win More Cases recommends first, Ultimate Vocabulary,3 which is reviewed at Write Better English,4 sparked an idea for an alternative topic for this column: What is the role of a good vocabulary in persuading judges in writing?
Again, I have been beaten to it somewhat by the recent publication of John Davis’s essay called “Vocabulary Improvement and Professional Success: What Can Lawyers Tell Us About the Relationship?”.5 You can find other tidbits on lawyers and vocabulary in other publications, especially George Rossman (ed), Advocacy and The King’s English (1960).6 Even so, I thought I would still offer some of my own thoughts on why good lawyers have good vocabularies and what you can do to improve yours.
A “vocabulary” in fact involves four kinds of vocabulary: aural vocabulary (the words you hear); reading vocabulary (the words you read); spoken vocabulary (the words you speak); and writing vocabulary (the words you write). The four vocabularies overlap, but no two of them are the same.7
For example, a word you read in a book or hear someone say may not appear in your own speech or writing; it requires much less effort to understand a spoken or written word than that needed to use that same word effectively.8 I have been told that a word must be used in context 40 times before mastery of that word and its meaning is achieved.9 Although speaking vocabulary and writing vocabulary are both important in the realm of law, since this column is about written persuasion, I will talk mainly about “writing vocabulary”.
A “good” vocabulary involves both breadth and depth. Breadth of vocabulary refers to the number of words you know. It is hard to measure the number of words a person knows. The number of “words” in the English language is itself difficult to measure. Estimates vary because of differences in what is counted as a single word. For example, do we count derivatives? Do we count compounds? Do we include technical terms? What about slang, archaic words, and foreign derivatives?10
For a ballpark measure of your vocabulary, you might read the study done by lexicographer Dr. Frank Horace Vizetelly and published in an article in Popular Science magazine (see Vocabulary Test).11 Read Table C in that test and multiply the words you know from Table C by 250 to discover the size of your vocabulary. According to Vizetelly, English has around 1 million words. The average person uses only a few thousand of these words. But lawyers have a speaking acquaintance with around 23,000 words (compared to 5,000 words for other occupations such as mechanics and artists and 8,000 to 10,000 for “educated” people).
Depth of vocabulary refers to how well you know the meanings of words in your vocabulary. Most words have more than one meaning. The more often a word is used, in general, the greater its number of meanings12 and the more potentially dangerous the word can be:
“The really serious misunderstandings … concern those words we all think we do really know — the familiar, the friendly, incessantly useful key words in every third sentence. In general the more useful a word the more dangerous it can be.”13
In addition, many words in common use have infrequently used meanings.14 Others in general use have a particular and quite special meaning in law, science, and other branches of knowledge:15 “It is fatal, therefore, to proceed at any time on the basis of equating a word with a single meaning”16and wrong to equate a “good vocabulary” with quantity without quality:
“Size of vocabulary is akin to speed in reading: it is part of the solution of the problem, but it is not the entire solution. Indeed, as with speed in reading, our concern over the problem may have caused us to exaggerate the importance of the number of words a student knows. Size is important — yes; but of equal importance, possibly of greater importance, is the accurate use of words.”17
It is particularly important for lawyers to know the different meanings of words. For example, words like “damage,” “property,” “fraud,” “intent,” and “malice” have a lot of potential meanings. As a result, “[s]emantic vigilance is essential to deal skillfully and knowledgably with the innumerable tricky words that occur in law.”18
A really good vocabulary also involves knowing something of a word’s sound, history, and associations; the use that has been made of the word “by the great masters of the tongue”;19 the utility and value of certain words; and the ability to use the most apt word in the most apt place:20 “The advocate … must have the faculty, innate or acquired of being able to use the right words in the right order, if he desires to be a master of the art of persuasion.”21
The link between a good vocabulary and success seems established. According to Johnson O’Connor’s 1934 famous article in the Atlantic Monthly:
“An extensive knowledge of the exact meanings of English words accompanies outstanding success in this country more often than any other single characteristic we have been able to isolate and measure.”22
Similarly, R Bowker in the English Vocabulary Manual (1981) says:
“English vocabulary level has been shown to be strongly related to educational success. In addition, it is related to the level of occupation attained. It is highly correlated with measures of reading ability and intelligence.”23
C Rexford Davis says in the introduction to his book, Vocabulary Building:
“[T]he possession of a large vocabulary does not in itself guarantee success. But without a large vocabulary outstanding success seldom occurs.”24
If a good vocabulary correlates with success generally, then the correlation must be even stronger for lawyers. After all, words are the principal tools of lawyers.25 And the written word is the most important of all:
“[B]y far the greatest proportion of the lawyer’s product, the commodity in which he deals, the thing which he sells, if you please, is the written word … To that end the lawyer should have a good vocabulary, not necessarily a large vocabulary, but a discriminating knowledge of the utility and value of a sufficient number of words —preferably simple words — which will enable him to use the right word in the right place and the most effective word for the place.” 26
People use their vocabularies for several purposes. Most obviously, we use words to receive information and to understand information (aural vocabulary and reading vocabulary) and to convey information so that we are understood (speech vocabulary and writing vocabulary).
But lawyers also use vocabulary for a special purpose — to persuade:
“Language is not used solely for the communication of thought … we lawyers easily forget that words are frequently employed with quite a different object — to make someone do something.”27
How, then, does a good writing vocabulary affect the process of written persuasion?
A lot has been written about persuasion techniques, in diverse fields. But, for the purposes of this column, let us look at just the 3 classical rhetorical devices that Aristotle made famous28 — logos, pathos, and ethos — to see how a good vocabulary can help lawyers persuade judges.
Logos refers to the process of persuading through substance and logical argument.29 Clarity of language is essential to persuading through logos. If you do not use clear words, then your audience will not understand the logic of your argument.30 And a good vocabulary — one that is both broad and deep — is essential to clarity. Edwin Abbott says in his classic work, How to Write Clearly (1883), that “Verbosity is cured not by a small, but by a large vocabulary”; if you have a large stock of words, you can choose the most effective word. When Ronald J Waicukauski et al ask in The Winning Argument, “What is the key to effective word choice? How do you get to the point where it comes naturally and regularly?” they answer: “Improved vocabulary is the first.”31
In Writing At Work (2007), Neil James shows, precisely, how a broad and deep vocabulary can help you write clearly without losing precision. James gives two useful tests when choosing your words: first, look among your stock of words for the words that convey your meaning most exactly (this will narrow the field); second, pick the shortest of the alternatives. The word that passes both tests will give your language power and precision.32
A good vocabulary also helps you persuade through logos in other, even more important, ways. Logos encompasses most of the persuasive arguments lawyers routinely use, such as arguments based on text, intent, policy, and precedent. “When it comes to persuasion, nothing can replace effective research and effective legal analysis”.33 In these tasks, a good vocabulary plays an important role.
For example, when using digests, indexes, and databases to research the law, a generous vocabulary helps you think of as many alternative words as possible that describe or relate to your research topic.34 And “[t]he importance of developing an accurate and creative list of key words and phrases to use in all index searches cannot be overestimated”.35 Also, a nuanced vocabulary helps you interpret and understand the words used in statutes and precedents36 by alerting you to subtle differences in meaning of seemingly easy words.
Pathos is persuasion through emotion.37 You can persuade through emotion in two main ways. You can please the reader by using language that is correct, clear, concise, concrete, and coherent (known as the “Five Cs”; see “Vocabulary Improvement and Professional Success: What Can Lawyers Tell Us About the Relationship?”). Well-written prose makes readers happy, but a poorly written document forces the reader to struggle through the document.38 For example, in relation to the fifth C, “coherence”, John Davis says:
“When language and vocabulary are coherent, a message flows seamlessly from one point to the next, avoiding abruptness or ‘choppy’ delivery. Coherence makes time seem to fly by, as its use in presentations will lead an audience logically from one point to the next without chasing proverbial rabbits.”39
Your vocabulary can also please your reader if you speak the reader’s language. Litigation expert, Hugh Selby, says that we are more trusting of those “we know” than those who are outsiders:
“Membership of the same crowd, even if it’s temporary, induces a sense of belonging which brings trust and acceptance. Shared experiences and demonstrated understanding suggest a common cause.” 40
So does the deliberate choice of vocabulary that meets the needs of your audience, according to Selby. To persuade someone who has a dominant visual sense, you might use words like “see”, “picture”, or “describe”; for an audience with a strong auditory sense, “hear”, “listen”, or “strike”; for those sensory audiences, you might use words like “feel”, “touch” or “empathize.”41
But persuading through emotion involves more than just pleasing your reader with a nice writing style. By sensitizing you to careful uses of emotive language, a broad and deep vocabulary directly enhances your ability to persuade.42 You want to evoke an emotional response in the judge favorable to your client’s plight, such as sympathy for your client’s circumstances or anger towards an opponent’s behavior. Here, your vocabulary can make a difference.
Byran A Garner gives some examples on when you might use charged verbs like “renege” and “dishonor”.43 The key is not to pick the most extreme word available but to select the most apt word in the most apt place. Ronald J Waicukauski et al in The Winning Argument (2001) give an example:
“Depending on the circumstances, ‘sad’ may be a more apt word than ‘devastated’ … Using strong words inappropriately will amount to overstatement, causing your listener to respond, ‘Give me a break.’ On the other hand, a person whose child was killed by a drunk driver is ‘devastated’ — a far more apt and evocative word than ‘sad.’”44
Ethos refers to establishing and maintaining credibility in the eyes of the audience.45 “Credibility” has several elements,352 including professionalism and intelligence. “Intelligence”, in turn, involves several traits, which include paying attention to detail and articulating your argument clearly.356
A good vocabulary can boost your credibility in several ways. A good vocabulary lends you distinction: “It silently distinguishes us from the sluggard, the weakling, and the upstart.”46
A good vocabulary also helps you pay attention to detail. For example, studying vocabulary can improve your spelling. And good spelling is important for lawyers since erroneous spelling “makes the judge go back to square one in evaluating the counsel.”47
As well as affecting the mood of the reader, mentioned previously, an overstated vocabulary can affect your believability. Credibility is not enhanced by overstated vocabulary like calling every position of an opponent as “utterly fallacious” and “completely without support in law or in fact”.48 Overstatements damage your credibility not only in the immediate case but in future cases as well. 49
By contrast, some psychological research suggests that a qualified vocabulary — words such as “probably” and “possibly” — actually persuade people who know your area of expertise (for example, judges) more than unqualified statements (though the reverse may apply to people who do not know your area of expertise (such as jurors)).50
Improving one’s vocabulary can come from incidental learning from context, direct learning, or of a combination of these. 51 The best incidental learning comes from reading good books and associating with others who have a good spoken vocabulary and written vocabulary. Direct techniques include looking in a dictionary for unfamiliar words. Another technique is to use a notebook to record the definitions of new words and review your notebook whenever you get some spare time — at lunch, on the train to work, or whenever. You should try to learn at least one new word a day.
The quickest and easiest form of direct learning these days is through vocabulary-building software. I use a popular vocabulary tool called Ultimate Vocabulary.52 I use Ultimate Vocabulary because I know and trust Marc Slater, the maker of the vocabulary software. Marc has not only a First Class Honors degree in Software Engineering but has also studied psychology and communication at tertiary level, which adds credibility to his company’s vocabulary builder software.
By using Ultimate Vocabulary, I can create my own custom word lists where I collect all the words that are new to me. I learn the new word through links to definitions, synonyms, antonyms, word flash cards, and a database of example sentences for each word I am learning, so that I can see the word in context. I then test myself with several inbuilt tests — a definition test, word test, synonym test, antonym test, word recall test, and spelling test — until I have mastered the new word. My favorite part of Ultimate Vocabulary is Word Messenger. When I turn on Word Messenger, the words I am learning will pop-up on my PC throughout the day to remind me of the new words in my expanded vocabulary.
Another reputable and popular piece of software is StyleWriter.53 Unlike Ultimate Vocabulary, StyleWriter is not a vocabulary-building program per se; it will not directly help you learn new words. However, StyleWriter will help you choose the most apt word for the most apt place. StyleWriter’s programmers know the importance of correct, clear, concise, coherent, and concrete language, which the software will help you implement.
A broad and deep vocabulary can help lawyers persuade judges in writing by making clear the logic of your arguments and by helping you find and interpret the sources of information on which you base those arguments. Carefully chosen words that follow the “five Cs” of correctness, clarity, conciseness, concreteness, and coherence can please the judge. Choice words can also evoke positive feelings in the judge toward your client and your cause. A good vocabulary enhances your credibility by helping you eliminate so-called trivial errors, such as spelling mistakes, and by distinguishing you as intelligent, professional, and articulate. Overall, if you can command words, then you can influence people. And if you can influence people, you can influence outcomes.
My newfound English language mentor, John Davis, just wrote to me to add: “And when you have influenced those outcomes, you have impacted the world at large.” John says to think of it this way —
“A single drop of water falling into a lake sends waves, no matter how small, to each side of the opposite shoreline. That same type of effect holds true within the use of our own persuasive language: even a single spoken word can send ripples to places, times, and people we never once imagined. Herein lies the power of broad, deep, and powerful vocabulary. Words can change minds, change laws, and when used most effectively, they can truly change lives. No greater lie has ever been spoken than this: ‘Sticks and stones may break my bones, but words will never hurt me.’”
6 See, for example, Lord Macmillan, quoted in Norman Birkett, “Advocacy” at page 17: “The fortune of an argument depends much more than is commonly realised on the literary dress in which it is presented. A point made in attractive language sticks in the judicial memory”; Norman Birkett, “The Art of Advocacy: Character and Skills for the Trial of Cases” at page 933: The “love of words, that discrimination in the use of words, is all essential to the advocate. The presentation of your case in the appropriate language, in the inimitable language, is part of the art of persuasion; and persuasion is the whole end of it, as I understand it”.
7 Lee C Deighton, “Developing Vocabulary: Another Look at the Problem” (1960) 49(2) The English Journal 82, 82.
8 Lee C Deighton, “Developing Vocabulary: Another Look at the Problem” (1960) 49(2) The English Journal 82, 82.
9 I thank John Davis for this statistic and for his other comments on an earlier draft of this article.
10 Joseph R Jenkins et al, “Learning Vocabulary Through Reading” (1984) 21(4) American Education Research Journal 767, 768.
12 Lee C Deighton, “Developing Vocabulary: Another Look at the Problem” (1960) 49(2) The English Journal 82, 85.
13 IA Richards and C Gibson, Learning Basic English (1945) 88 quoted in Bryan A Garner, “The Language of Appellate Advocacy” in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 188, 192.
14 Lee C Deighton, “Developing Vocabulary: Another Look at the Problem” (1960) 49(2) The English Journal 82, 85.
15 Lee C Deighton, “Developing Vocabulary: Another Look at the Problem” (1960) 49(2) The English Journal 82, 85.
16 Lee C Deighton, “Developing Vocabulary: Another Look at the Problem” (1960) 49(2) The English Journal 82, 85.
17 Frank Heys Jr, “Means of Vocabulary Development” (1963) 6(2) Journal of Developmental Reading 140, 140.
18 Bryan A Garner, “The Language of Appellate Advocacy” in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 188, 191.
19 Norman Birkett, “Advocacy” in George Rossman (ed), Advocacy and The King’s English (1960) 19.
20 Harold G Pickering, “On Learning to Write: Suggestions for Study and Practice” in George Rossman (ed), Advocacy and The King’s English (1960) 826, 827–8.
21 Lord Justice Birkett, “Law and Literature: The Equipment of the Lawyer” in George Rossman (ed), Advocacy and The King’s English (1960) 775, 784.
22 At page 164.
23 At page 1.
24 Quoted in William Darby Templeman, “Does Vocabulary-Building Have Value?” (1955) 26(6) College English 366, 367.
25 Zechariah Chafee, “The Disorderly Conduct of Words” in George Rossman (ed), Advocacy and The King’s English (1960) 620.
26 Harold G Pickering, “On Learning to Write: Suggestions for Study and Practice” in George Rossman (ed), Advocacy and The King’s English (1960) 826, 827–8.
27 Zechariah Chafee, “The Disorderly Conduct of Words” in George Rossman (ed), Advocacy and The King’s English (1960) 620.
28 See, for example, Aristotle and JH Freese (ed), The Art of Rhetoric (1947) 17: “[T]he proofs furnished by the speech are of three kinds. The first depends upon the moral character of the speaker [ethos], the second upon putting the hearing into a certain frame of mind [pathos], the third upon the speech itself, in so far as it proves or seems to prove [logos]”.
29 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 22.
30 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 98.
31 At page 128.
32At page 190.
33 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 3.
34 Susan McKie, Legal Research: How to Find and Understand the Law (1993) 42.
35 David Stott, Legal Research (1993) 28. See also Allen Bryce, “Topic Knowledge and Online Catalog Search Formulation” (1991) 61(2) The Library Quarterly 188.
36 In Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 188, 191.
37 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 22.
38 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 98; Miriam Kass, ‘The Ba Theory of Persuasive Writing’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 179, 179.
40 Hugh Selby, “Arguing for Other Persuasions” (3 August 2007) Lawyers’ Weekly Online
41 Hugh Selby, “Arguing for Other Persuasions” (3 August 2007) Lawyers’ Weekly Online
42 Bryan A Garner, “The Language of Appellate Advocacy” in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 188, 192.
43 Bryan A Garner, “The Language of Appellate Advocacy” in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 188, 192.
44 Ronald J Waicukauski et al, The Winning Argument (2001) 127.
45 Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2002) 23.
47 Patricia M Wald, ‘19 Tips from 19 Years on the Appellate Bench’ (1999) 1 Journal of Appellate Practice and Process 7, 22
48 Bryan A Garner, “The Language of Appellate Advocacy” in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 188, 190.
49 Bryan A Garner, “The Language of Appellate Advocacy” in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 188, 190.
50 See John C Reinard, 'The Role of Toulmin's Categories of Message Development in Persuasive Communication: Two Experimental Studies on Attitude Change' (1984) 20 Journal of the American Forensic Association 206; Paul T Wangerin, 'A Multidisciplinary Analysis of the Structure of Persuasive Arguments' (1993) 16 Harvard Journal of Law and Public Policy 195, 207.
51 Joseph R Jenkins et al, “Learning Vocabulary Through Reading” (1984) 21(4) American Education Research Journal 767, 768.