You made your case

Control the semantic playing field

Labels are important. That’s why people use euphemisms and why names are periodically changed. And that’s why you should think through the terminology of your case. Use names and words that favor your side of the argument.

Consider American Airlines. Some lawyers who have represented the company call their client “AA” in briefs, perhaps as a space-saver. That passes up an opportunity for subliminal reinforcement. If American Airlines is your client, you have the opportunity to call your client “American” – knowing that every judge sitting on your case (unless you are in some international tribunal) will be an American. Of course, if you’re opposed to American Airlines, you will call your adversary “the Company,” “the Corporation,” or perhaps even “the Carrier” – never “American.” If you can get your adversaries to use your technology, so much the better.

Sometimes it’s not a proper name at issue but an event. Some years ago, Warren Christopher represented Union Oil in connection with some major spills at offshore oil platforms in the Santa Barbara Channel. From the beginning, Christopher persistently referred to this potential environment disaster as “the incident,” and soon both the judge and even the plaintiffs’ lawyers adopted this abstract word uniformly. Anything more concrete, from Union Oil’s point of view, would have conjured up prejudicial images.

Judge James L. Robertson of Mississippi has recounted a splendid example of his use of disputational semantics when he was in practice. He was challenging some unduly restrictive outside-speaker regulations on Ole Miss’s college campuses. During the proceedings, he and his partners kept referring to the lawsuit as the “speaker-ban case.” Soon everyone was doing it. That done, the outcome of the case seems to have been foreordained. Would you be inclined to vote for or against a speaker ban?
Of course, semantic astuteness must not degenerate into sharp practice. In a high- profile medical –malpractice action some years ago, a hospital executive named Lyman Sarnoski (the last name is fictional) was accused of falsifying medical records. The plaintiff’s lawyers repeatedly referred to him before the jury as “LIE-man,” emphasizing the first syllable of his name to suggest, undoubtedly, that lying was part of his nature. It was not long before the judge ordered them to refer to the man as “Mr. Sarnoski” – and levied a $5,000 sanction on the lawyers. Even if the judge had not taken offense, the jurors probably would have.

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