Attorneys, Judges, and the Perils of Powerless Speech

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shutterstock149536214By Jill D. Schmid, Ph.D.

A few weeks ago I was listening to a judge give his rulings on a number of pre-trial motions. With each ruling, he began by saying, “I’m inclined to find …” The first time, I didn’t really think anything of it, but a few hours and dozens of motions later, it was clear that this judge could not make a simple and strong declarative statement. While I typically do not look for opportunities to “take on” a judge, this particular example of a powerless speaking style deserves some attention namely because of the position and also because the judge was a man.

For years, I’ve studied, lectured, and written on gender communication. The “powerful – powerless” communication continuum is part of that work and is used to describe the difference between stereotypical male vs. female communication styles. The “female” end of the continuum is often associated with “powerless” speech – speech that includes hedges and qualifiers: “perhaps,” “maybe,” “I think,” “kind of,” or “I guess”; speech that includes intensifiers: “so,” “really,” and “very”; speech that includes hesitations: “um” and “uh”; and speech that includes disclaimers: “I’m not sure, but…” or “I’m not an expert, but…” Reading these, it should be obvious that the use of these types of phrases or words weaken the statements being made.

As an easy example, which of these sounds more assertive, therefore powerful?

• Acme failed to follow the FDA testing requirements, which means the test results are invalid and do not prove this drug is safe or effective.

• I think you’ll find that Acme probably should have followed the really, really important FDA rules that, uh, are usually used when testing so I think you’ll agree that the tests really can’t prove this drug is all that safe, or um, very effective.

Extreme? Over the years I’ve heard many statements that sounded exactly like the second bulletpoint. While some “uhs” and “ums” can be expected, it’s the other phrases that cause more serious problems. For example, the judge’s introductory phrase to every ruling encouraged argumentative responses. After all, if he is only “inclined” to find, then perhaps he is open to changing his mind. On that particular day, each “ruling” was followed by a lengthy debate led by the party that “lost.” An appeal would be made to the judge, the other side would counter; back and forth it would go until the judge finally stepped in and said, “I’m going to go with my initial ruling…”( which is still not authoritative sounding). He did not change his mind once, which begs the question of why not just say “I find…” and move it along?

I believe (deliberately chosen hedge) that if he had started with “I find…,” the full day of motion rulings would have lasted only a few hours instead. Some might assert that he was doing this deliberately – an attempt to appear open to what the parties had to say. If that were true, though, there was a more deliberative way to say that, as well: “On motion 12, I find in favor of the defendant; I am open to revisiting this finding if the plaintiff has anything new to add that was not covered in their brief.” Then, when plaintiff starts stating things that were in the brief, the judge can interject, “That was covered in your brief, ruling stands. On motion 13, I find…”

The point is that all of us – men, women, judges, attorneys, witnesses – fall prey to the use of powerless communication (spoken and written). “I think the evidence will show…” is not nearly as strong as “The evidence will show…” If you want to avoid a debate about a decision you have made, lose the tag question – “The meeting will start at 1 pm, ok?” If you want to make sure no one listens to you, begin with “I’m not sure, but…” Is it truly more important if you add a few “reallys”?

Most of the time, we are not aware that we are adding these phrases/words to our communication. I can not tell you how many times I’ve written an email, letter, article and then gone back and had to delete all the “watering-down” language (all those extra or unneeded words that only make a point less clear and less credible). My extra words of choice tend to be“just” and “really.”

• I just read your email and I just want to say that…

• I really enjoyed meeting you the other day and am really looking forward to working with you on…

When writing, go through and delete all the unnecessary words – words that confuse the meaning and undermine your credibility. When speaking, be deliberative in your choices. There are times when you might want the tag question as you are seeking buy-in by encouraging participation. However, if you can not figure out why people keep questioning your decisions, think about your delivery. Perhaps, you just might be sort of undermining your authority by, I think, using too many really, really unnecessary words.

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