Words matter: litigation isn’t a battlefield

My professional history is as a litigator. I’ve heard people use battle-related terms in the litigation context. I even had the experience of hearing this type of language from a law school student looking for a job. “Why do you want to be a litigator?” I asked the applicant. “Well,” he said, “litigation is the only way you can legally crush your opponent” he replied in a raised voice with a fist on the conference table.

The student wasn’t hired.

Michael Maslanka writes in the Texas Lawyer that we shouldn’t use battle-related terms in litigation, citing John Pollack’s “Shortcut: How Analogies Reveal Connections, Spark Innovation, and Sell Our Greatest Ideas.”

Mr. Maslanka is right.

Words matter.

Often times in mediation, I’ve encouraged the parties to leave their “shields and swords at the door” and that for the time here at the mediation, our goal is different. Our goal isn’t to injure each other but to draw a truce and resolve the conflict.

Frankly, I’ve never liked the battle-related terms used in litigation if for no other reason, it’s not a real battle. There are people who’ve honorably served this country in battle, taking bullets, losing limbs, and losing life in significant, horrific ways.

Litigation shouldn’t be that way and we shouldn’t use that language. I’ve always viewed litigation as a problem in search of a solution. As Maslanka points out, with war there must be a winner and a loser. There must be good versus evil.

Litigation (and mediation) is about resolving disputes.

Look at how successful family law mediators use language. They don’t refer to “parties” or “petitioner” or “respondent” or “custodian”. They use words like “mom” and “dad.” That makes a difference, doesn’t it? It changes perspective and it changes how we approach the situation.

Words matter. Let’s use accurate words to describe the situation.


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