NHEH Publications

The Smartest Thing I Never Said

by Michael Masuda, ESQ


Attorneys talk too much.  Some lawyers will consider this heresy demanding a lengthy rebuttal.  But we all know it's true.  It is as if attorneys, like Charles Dickens, are paid by the word.

Lawyers talk too much to each other, judges, jurors, witnesses, and clients.  I am no longer surprised when opposing counsel reveals important information while prattling on.  I have done so.  Judges become impatient after an attorney makes her final point for the fourth time.  Jurors and witnesses complain about attorneys repeating the same thing over and over and over again.  Clients appreciate their attorneys listening to their concerns instead of telling war stories.

I am convinced the main causes of this verbosity are the yin and yang of our profession – overconfidence and insecurity.  Each breeds loquaciousness. 

Overconfidence can be defined as the systematic overestimation of the correctness of one's position.  A better description is seeing two answers to every question, your answer and the wrong answer.

Overconfidence is understandable.  Having worked hard mastering the law and the facts, don't you have the right to display your expertise?   Be careful about drinking your own cool-aid.  We are rarely as articulate as we think we are.   This article proves my point. 

Overconfidence spurs verbosity.  We feel so self-assured that remaining silent would callously deprive the judge, jury, and opposing counsel of our eloquence.  Such confidence is reserved to cats and professional wrestlers. 

In many situations remaining silent reflects real confidence.  If an adverse witness has self-immolated on direct examination, be secure enough not to use cross examination just to kick the charred remains.  Opening your mouth may risk jurors viewing your questions as gratuitous pig-piling or allow the witness to rise from the dead.

If you have accomplished most of your goals with a witness or an argument, have the confidence to leave well enough alone.  Don't allow the perfect to be the enemy of the good.  Perry Mason moments (I am dating myself) are extremely rare.  I have yet to hear a witness shriek on cross-examination "Yes!  Yes!  I admit that is not my signature.  Just stop your relentless questioning."

You may be dying to use a real cool exhibit or expensive expert witness.  However, due to the vagaries of trial, such evidence is no longer needed.  Resist the siren's call to use this evidence just because you can or it cost your client a lot of money.  Everything, and I mean everything, you do in court should be geared to advancing your case.  If it doesn’t, don’t.  Every exhibit and witness is a potential trap ready to boomerang.  No fish was hooked by keeping its mouth shut. 

Many attorneys' DNA contains a show-off gene.  Having mastered (seemingly) an arcane and technical subject, it becomes imperative to display this virtuosity.  I once heard an attorney ask a lay witness:  "Did you consider utilizing pulsed field gel electrophoresis instead of an electrophoretic mobility shift assay?"  The witness' answer mirrored what the jury was thinking:  "Huh?"  No one cares how clever you are and there is no billing entry called “showing off.”  Open your mouth when it will help win the case, not indulge your ego.

A kissing cousin to showing off is engaging in the fantasy of annihilating expert witnesses on cross-examination.  Generally, no good can come of it.  Attorneys who recklessly pick up that gauntlet usually leave the field of battle bruised and battered.  If you cannot effectively cross-examine an expert witness, the best thing to say is "no questions."

We have all been recipients of nasty-grams assailing our intelligence, ethics, and parentage.   Such attacks trigger a Pavlovian response to retaliate.  I urge you to do so.   Respond in kind by composing the most vituperative letter your imagination can conceive.  Let it marinate overnight.  This allows the venom to leach from your system.  By dawn’s early light your cooler head will prevail and you will hit delete.   Silence is the better part of valor.

Holding your tongue is more difficult if the vilification is more immediate, when opposing counsel is in your face.  Take a deep breath, summon all your willpower, and turn the other cheek.  Recall Ambrose Bierce's advice:  "Speak when you are angry and you will make the best speech you will ever regret."

If during settlement negotiations it becomes obvious resolution is not forthcoming, why reveal anything that will simply educate the other side?  You are not going to change their minds.   Exercise your constitutional right to remain silent.

Confident I have fully discussed overconfidence, I will turn the coin over to insecurity.  Self-doubt is the Mr. Hyde to the Dr. Jekyll of overconfidence.  Paradoxically, we often talk the most when we have the least to say.  If we don’t have something to say, instead of keeping quiet, we blather on, often simply to justify our existence.  After all, as law school graduates, licensed attorneys, and wearing a suit, we must have something to say.   "Blessed is the person who, having nothing to say, abstains from giving us wordy evidence of the fact," as George Eliot observed.

At times we talk merely to fill conversational voids.  Try it.  While talking with someone, stop.   The other person often keeps chatting for no reason except breaking the uncomfortable silence.

I have personal experience with this phenomenon.  I knew a very cagey attorney who said very little in settlement negotiations.  His taciturnity unnerved me and I would yammer on, revealing more that I should.  Eventually it dawned on me he was keeping quiet precisely so I did not.  I stopped talking.   But I could not hold out for long and exclaimed:  “Fred, I know what you are doing and I am not saying another word until you do!”  A wry smile slowly formed on Fred’s face and he to negotiate.

A final illustration of insecurity motivating more words is the practice of opposing everything the other side does simply because they did it.  This custom has generated gigabytes of pabulum.  We should import the concept of "statements of non-opposition" from motion practice into our day-to-day dealings with opposing counsel.

Regardless whether our nattering comes from narcissism or self-doubt, Gandhi, himself a lawyer, suggested the best remedy: talk only when it improves on silence.  I have nothing more to say.  

This article is intended to address topics of general interest and should not be construed as legal advice.

Printed in the Los Angeles Daily Journal 11/2015
© 2015 Noland Hamerly, Etienne & Hoss