Lawyers make their living with words. They employ their tool of the trade by carefully crafting what is said in the courtroom and on paper, from a jury trial to a real estate contract.
A good lawyer also knows that words that may work wonderfully before a jury could backfire in a brief as inappropriate exaggeration or attempted emotional influence. As lawyers, we must know our audience.
So just how powerful are words in shaping perception and future action? We can turn to quantum theory, of all places, to better understand their impact.
Words are fluid
The Heisenberg Uncertainty Principle (HUP) is a rule in physics that says we can’t know everything about a tiny particle (like an electron) simultaneously.
Specifically, if we try to measure exactly where the particle is (its position), we can’t know exactly how fast it’s moving or where it’s going (its momentum). And if we focus on knowing its speed and direction, we lose track of its exact location.
It’s like trying to take a picture of a bird flying in the sky. If you zoom in really close to see exactly where the bird is, it becomes blurry, and you can’t tell how fast or in which direction it’s flying. But if you step back to see the bird’s motion clearly, you can’t pinpoint its exact location.
Like particles, words never seem to impart a single position when it comes to their meaning. It’s difficult to conceive of a truly neutral word because as soon as you label a concept, you’re changing how people perceive it.
To make things more consuming, the meaning of a word can change over time and impact people and events in various ways depending on their context. While the words we use to shape an argument may powerfully impact some people, they might also unintentionally disassociate or alienate others.
Memories reshaped
Lawyers often use artful language techniques to call upon different emotions to best serve their clients. Sure, word choice can steer the analysis of a case, but it can also unintentionally distort or even generate false memories.
For example, in an automobile accident case, defense counsel may refer to the cars “making contact with each other,” while the plaintiff counsel may say one car “smashed into the other.”
Researchers Elizabeth Loftus and John Palmer demonstrated the influence of leading descriptions like these on testimony and subsequently on the jury.
In their first study, participants watched a film of a traffic accident and were asked to describe what they witnessed. They were asked a series of questions, including this question with different versions of the verb: “About how fast were the cars going when they smashed/collided/bumped/hit/contacted each other?”
The estimated speed was affected by the verb used in the question, impacting the participants’ memory of the accident. The participants in the “smashed” condition reported the highest speed estimate (40.8 mph), followed by “collided” (39.3 mph), “bumped” (38.1 mph), “hit” (34 mph), and “contacted” (31.8 mph) in descending order.
Their second study examined how memory may not just be influenced, but rather modified, supplemented, or even changed because of the language used.
Three equal groups of participants watched another video of a multiple-car accident. Fifty participants were asked how fast the cars were going when they “hit” each other. Another 50 participants were asked the same question, but the verb was replaced with “smashed.” The remaining 50 participants weren’t asked any questions to serve as a control group.
A week later, all 150 participants were asked if they remembered seeing broken glass at the accident scene. Results showed that participants who were asked the question with the verb “smashed” reported seeing twice as much broken glass as those who were asked with the verb “hit.” The control group, which was not asked any questions, reported broken glass just as much as the group that was asked with the verb “hit.”
If altering a single word can impact and even change how people recall an event they witnessed minutes or even a week before, just imagine how perceptions might be influenced months or years later and under distracting conditions.
And we don’t have to wait until the courtroom to see the potential impact. Other victims, witnesses, or the police themselves may also influence the recollection of an event.
For example, a witness may say to another at the time of the crash, “Did you see that truck just fly through that intersection and total that car!?” From the time a memory is formed, it’s subject to the influence of words.
Raise your words, not your voice
Along with impacting people’s perception of reality, words construct the foundation of our society. Words form our laws and establish our freedoms. Words can enforce our rights and protect us from injustice. They can also convey our opinions and express our beliefs.
Today, words are quickly and easily shared around the world through social media. And the temptation to eschew civil discourse for a chance to draw greater attention or followers haunts many.
Nevertheless, as lawyers, it’s important that we reflect on the ethical tenets, which lay out our responsibility to use our words precisely and diligently as advocates and negotiators who zealously assert our client’s position under the rules of the adversary system but in a way that demonstrates honest dealings with others.
New frontiers: generative AI tools for persuasive writing
In recent years, advancements in generative AI (GenAI) have introduced powerful tools that lawyers can use to refine their persuasive writing and trial strategies by fine-tuning word selection and phrasing.
These tools leverage large language models (LLMs) trained on vast datasets to assist attorneys in crafting arguments tailored specifically for their audience — whether it be judges, juries, or opposing counsel.
For instance:
- Enhanced word selection: GenAI tools can analyze drafts for tone appropriateness or suggest alternative phrasing that strengthens emotional resonance while maintaining professionalism.
- Tailored arguments: By analyzing prior rulings from specific judges or jury trends within certain jurisdictions, some legal-industry GenAI tools can recommend language that is likely to appeal to a judge based on historical patterns and even judge-specific precedents.
- Consistency across documents: AI-powered drafting ensures uniformity in style and tone across briefs while flagging ambiguous or outdated phrasing.
- Real-time feedback: Tools integrated into word processing applications provide instant suggestions for improving clarity or persuasiveness during drafting.
Trial preparation meets AI
Beyond written briefs, AI is transforming trial preparation by helping lawyers develop compelling narratives tailored to specific audiences.
GenAI can craft opening statements or closing arguments aligned with established case themes while suggesting impactful phrasing to resonate with the intended audience. Likewise, when specific topics or phrases should be avoided in court in response to a motion in limine, for example, prompts can be drafted to have GenAI generate content that meets that demand while achieving your goals.
Additionally, AI tools now enable the creation of visually compelling exhibits derived from discovery documents or deposition testimony, enhancing storytelling and making complex information more accessible and persuasive during trials.
Human oversight remains critical
As lawyers, we make our living with words, and that affords us a special responsibility to manage our language with due care. While GenAI tools promise efficiency gains and sharper arguments, human oversight remains critical. Lawyers must validate AI-generated content for accuracy and ensure it aligns with ethical standards.
By integrating GenAI into their workflows judiciously, lawyers can elevate their craft, using technology not only to save time but also to amplify their persuasive power while maintaining integrity in advocacy.
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