The Importance of Simplicity (Part 2)

In my previous article, I began discussing the importance of simplicity, in the service of clarity, in the presentation of facts and arguments. I asked the questions:

Why do we so often load up our papers and testimony with unnecessary clutter?

Why should we work so hard to eliminate it?

In this article, I continue exploring this topic and ponder additional questions as they relate to facts.

The second question may be the more difficult one to answer or understand, at least for the client. After all, what happened, happened to them; they’ve lived with this; they’re still living with it. Doesn’t the arbitrator, judge, or jury need to know it all in order to correctly decide the case?

The answer, of course, is “No.” As in almost all instances when one is presenting to a third-party, regardless of whether it is in connection with a sales pitch, motivational speech, or evidence in a legal proceeding, it is important to know one’s audience.

In the case of a legal dispute, let’s assume that the decision maker has every intention of listening carefully and devoting his or her full attention to your case, so that the correct determination can be made. At least at the outset, that decision maker will not know what is important, and what is not. It is up to you to tell them.

By loading up on extraneous matters, you may cause the decision maker to overlook what really is  important. And, perhaps even worse, the decision maker, who often has many cases in addition to yours, may actually lose interest. You want them to know, immediately, what the case is about, what the key relevant facts are, and why you should prevail. They should not have to wade through pages in a pleading, affidavit, or brief — or sit through hours of testimony — in order to learn this. Imagine the difference between opening a novel and having to read three meandering chapters before figuring out what the book is about, compared to one that hooks you within the first two pages. “Setting a stage” can be important and useful. But a stage need only be so large.

Most good writers know the value of the good editor; someone who will force them to strip away excess verbiage — even some of the author’s favorite turns of phrase — to make the story more readable; to make it “pop!” In the same way, a good attorney should work to help the client strip away the trees, so that the decision maker can see the forest.

That is easier in the preparation of written submissions, such as a pleading or affidavit, than it is in the preparation of oral testimony, such as at a deposition, hearing, or trial. However, the attorney can still prepare a client for what is to come. When questioned by her own attorney in direct testimony at an arbitration, hearing, or trial, this should be easy to do. It does not mean that the testimony is scripted or rehearsed; it does mean, however, that the client always remember the theme and key facts she wants to present to the decision maker.

It is trickier when it comes to responding to questions asked by the other attorney at a deposition, hearing, or trial. The client’s attorney cannot anticipate all of the questions; nor can she tell a client how to answer a question or what the answer should be. However, the client should be told to listen carefully to a question; to answer the question only, and not expound upon it, while always answering truthfully, ; and to remember what the case is really about. Remember, the audience is the arbitrator, judge, or jury; it is not the opposing counsel. Again, for the client, keeping her focus on the theme and key facts will best enable her to accomplish this, and not be lead down rabbit holes.

Clients hire attorneys to provide services and render advice. Clients want, and should demand, that those services and the advice rendered should include helping the client give the best presentation that she can. By keeping it simple — remembering that less can be more — clients can best tell their story.


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