The Words Under the Words

Patrick Barry *

The words lawyers choose can change the decisions people make. Psychologists call the mechanics of this change “framing.” 1 See, e.g., Amos Tversky & Daniel Kahneman, Rational Choice and the Framing of Decisions, J. Business, April 1986, at S251, S257 (1986) (“[Framing] consists of a preliminary analysis of the decision problem, which frames the effective acts, contingencies, and outcomes. Framing is controlled by the manner in which the choice problem is presented as well as by norms, habits, and expectancies of the decision maker.”); Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Economy of Choice, 211 Science 453, 453 (1981) (“We use the term ‘decision frame’ to refer to the decision-maker’s conception of the acts, outcomes, and contingencies associated with a particular choice.”). They’ve found, for example, that more people will decide to have a surgery if they are told that the “survival rate is 90%” than if they are told that the “mortality rate is 10%” 2 Tversky & Kahneman, Rational Choice, supra note 3, at S254-55. —even though a survival rate of 90% is exactly the same as a mortality rate of 10%. They’ve also found that having to pay a “surcharge” for using a credit card rankles people (especially people in the credit card lobby) more than if they were simply told they would get a “discount” for instead using cash. 3 Id. at S261. (“It is easier to forgo a discount than to accept a surcharge because the same price difference is valued as a gain in the former case and as a loss in the latter. Indeed, the credit card lobby is said to insist that any price difference between cash and card purchases should be labeled a cash discount rather than a credit surcharge.”). They’ve even found that meat labeled “75% lean” will taste better to consumers than the same meat labeled “25% percent fat.” 4 See Irwin P. Levin & Gary J. Gaeth, How Consumers Are Affected by the Framing of Attribute Information Before and After Consuming the Product, 15 J. Consumer Res. 374, 374 (1988). Framing, it seems, extends all the way to taste buds.

The researcher who pioneered the study of framing within the legal context is the psychologist Elizabeth Loftus, whose expertise has been used in trials as different and influential as the O.J. Simpson trial, the Timothy McViegh trial, and the trial of mass murderer Ted Bundy. 5 Roc Morin, The World’s Top False-Memory Expert Explains Why Everything You Know Might Be Wrong, Vice (Nov. 5, 2014, 8:27 AM), One of Loftus’s most well-known experiments showed that changing just a single word when questioning eyewitnesses about a car accident can significantly alter their memory of that accident. If you ask witnesses, “Did you see the broken headlight?,” you’ll likely get more yeses than you would if you instead ask them, “Did you see a broken headlight?” 6 See, e.g., Elizabeth F. Loftus & Guido Zanni, Eyewitness Testimony: The Influence of the Wording of a Question, 5 Bull. Psychonomic Soc’y 86, 88 (1975) (emphasis added). This discrepancy persists even in scenarios where none of the cars in the accident actually had a broken headlight. 7 Elizabeth F. Loftus, Leading Questions and the Eyewitness Report, 7 Cognitive Psychol. 560, 562 (1975). Simply asking the question using the definite article “the” instead of the indefinite article “a” seems to create a (false) broken headlight in people’s minds.

Keep these findings in mind when you approach any piece of writing. Think about more than just the straightforward definition of the words you use. Think about the connotations of those words as well, about the ideas they might evoke, about the reactions they might elicit, the images and emotions they could stir up.

The poet Naiomi Shihab Nye has a wonderful phrase for all this below-the-surface action. She calls it, in a poem about her grandmother, “the words under the words.” 8 Naomi Shihab Nye, The Words Under the Words, in Words Under the Words: Selected Poems 36, 36 (1995).

The next time you write draft a motion, create a contract, or even just send a memo, think about the words under the words in the message you hope to communicate. The same goes for less formal modes of communication. It could be an email. It could be a text message. It could be an invitation, thank you letter, or tweet. Whatever you compose, and whomever you compose it for, the words under your words will play a role. Be aware of the work they are doing.

I. Case Study: “Password”

Being aware of the words under the words is especially important when crafting headings. From appellate briefs to internal reports, headings represent some of the most valuable written real estate around. They give lawyers a chance to frame an issue and pitch their story even before the reader gets to the main text. The best advocates treat them like headlines in a newspaper. That level of economy and precision is required—as is the understanding that a busy reader might not read much else.

Take, for example, a heading from an appeal handled by the Unemployment Insurance Clinic at the University of Michigan Law School, which is a group of faculty and students that give free legal representation to aggrieved workers. The case involved a client, Mr. Louis, 9 The client’s name and other minor details about the case have been changed for privacy purposes. who had worked as a pharmacy technician for over a decade in a busy Detroit hospital. We don’t need to go into all the details of the case; it is enough to know that during a particularly hectic day, Mr. Louis used the password of a coworker so he could fill prescriptions for patients more quickly. Doing so was (unbeknownst to Mr. Louis) against company policy. So he was fired.

The law students who represented Mr. Louis did not appeal the pharmacy’s decision to fire him. His termination was perfectly legal. What they appealed is whether his actions that day rise to the level of misconduct necessary to keep him from getting unemployment benefits. Here is the heading the students used to argue that his actions do not indeed rise that high. It could use some editing.

Given that Mr. Louis maintained a good-faith belief that he could more rapidly serve patients by utilizing a pharmacist’s password, he was not willfully and wantonly disregarding his employer’s interest and thus, should not be disqualified from unemployment benefits.

One reason this heading could use some editing is because the whole thing is too long and unwieldy. It’s tough even to think about the words under the words when there is so much other junk in the way.

Another reason involves the phrase “utilizing a pharmacist’s password.” Put aside for the moment how “utilize” may strike many readers as an ugly, pretentious substitute for “use”; focus instead on the last two words: “pharmacist’s password.” Those pose a bit of a problem for Mr. Louis—which means they also offer an opportunity for some careful editing to make a major impact.

The students representing Mr. Louis are fortunate because there is case law in Michigan that says if you are fired for actions you thought were actually helping your employer, you are not necessarily disqualified from receiving unemployment benefits. 10 See Razmus v. Kirkhof Transformer, 357 N.W.2d 683, 685 (Mich. App. 1984). But the help this case law gives to Mr. Louis’s case might get lost if the reviewing judges fixate on the word “password,” a term that, especially when paired with a verb that says Mr. Louis took something from somebody else, doesn’t put Mr. Louis in the best light. The words under the words of “password” connote an invasion of privacy. They suggest, in this context, shiftiness, even theft.

The students could address these concerns by ditching the term “password” and reframing the whole heading to better show that (1) Mr. Louis was simply trying to help the pharmacy serve its clients and (2) Mr. Louis’s actions therefore do not rise to the level of misconduct required to disqualify him from unemployment benefits.

Here’s the original heading again:

Given that Mr. Louis maintained a good-faith belief that he could more rapidly serve patients by utilizing a pharmacist’s password, he was not willfully and wantonly disregarding his employer’s interest and thus, should not be disqualified from unemployment benefits.

And here’s a new version, after several rounds of editing:

Mr. Louis’s good-faith effort to help the pharmacy more quickly serve its patients does not rise to the level of misconduct required to disqualify him from unemployment benefits.

Notice the use of “good-faith effort” right at the beginning of the heading. These words appeared in the students’ draft as well, but now they are quickly followed by the phrase “to help the pharmacy.” That pairing nicely highlights the point the students need to make to the court: that Mr. Louis wasn’t trying to sabotage the pharmacy or in any way shirk his responsibilities. He was just trying to do his job.

Notice also the phrase “rise to the level.” The words under the words of that phrase helpfully indicate that “misconduct” is a high burden. Not just any wrong action will do. As one of the lawyers supervising the students explained during the rewriting phase, “We want to make clear that getting to ‘misconduct’ involves climbing a big-ass mountain. The judges need to know just how high a bar this is.” Inserting “rise to the level of” communicates that information. It plants the big-ass mountain on the page.

II. Nobody Has a Monopoly on Effective Language

None of these edits will earn anyone a Pulitzer Prize. Nor will they automatically win the case for Mr. Louis. Some might have even made you uneasy. I know I get nervous when it seems words are being used to manipulate an event or experience, especially when I remember that nobody has a monopoly on effective language. Many glorious deeds have been helped along by powerful phrases, but many terrible deeds have as well. The ability to marshal the words under the words is not reserved for noble minds like Maya Angelou, Abraham Lincoln, and Elie Wiesel.

But to be an effective advocate for your clients, for your organization, or for yourself, it is important to embrace the point with which this essay began: the words lawyers choose can change the decisions people make. Or as the epigraph from Nobel Prize winning psychologist Daniel Kahneman put it, “People don’t choose between things; they choose between descriptions of things.” 11 Michael Lewis, The Undoing Project: A Friendship that Changed Our Minds 343 (2017).

Knowing that will help protect you from being duped by someone else’s words. It will also help you give voice to the ideas, issues, and causes you think deserve fuller, more eloquent articulation. Perhaps the single most important thing lawyers—especially young lawyers—can do to improve their effectiveness is follow this directive: become good with words.

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The “Questions and Examples” section, included at the end of the attached PDF, is designed to help you start to do that. Treat it as a way to build your writerly acumen and awareness. The goal is not to get every question right. The goal is simply to start to pay close attention to the force and flexibility of language, to the way words shape everything from custody battles, to sporting events, to how we tell stories about ourselves and others.

* Clinical Assistant Professor of Law, University of Michigan Law School. I would like to thank Shai Dothan, Tim Pinto, and Vivek Sankaran for helpful suggestions, as well as Julie Aust, Hannah Hoffman, and Joel Richert for excellent research assistance. The essay is significantly better because of each of them—and because of the tremendous edits made by the staff at the Stanford Law Review, who went beyond just cleaning up the citations and actually improved both the content and organization of the piece.