Should Trial Attorneys Use Complex Language? It Depends…

Today’s Read:

Alivia Zubrod, Lucian Gideon Conway III, Kathrene R. Conway, and David Ailanjian, Understanding the Role of Linguistic Complexity in Famous Trial Outcomes, Journal of Language and Social Psychology 2021, Vol. 40(3) 354–377,

I suppose starting off with a quote from one of the most famous trials in U.S. history is appropriate:

“If [the glove] doesn’t fit, you must acquit.”
Johnnie Cochran, Defense Attorney for OJ Simpson, June 15, 1995

Regardless of your opinion about the outcome of the OJ Simpson trial, you have to admire the beauty and simplicity of this contention by the defense. It does not employ any complex legal arguments, and it does not twist itself in circles trying to explain why the defendant is innocent. It just appeals to the common sense of the jury. Memorably, it even rhymes. And, clearly, it worked.

The article I’m reviewing today, published last year in the Journal of Language and Social Psychology, provides a fascinating look at the use of complex language in “famous” trials.

As their corpus, the researchers used Famous Trials, an open-access database established and maintained by Douglas O. Linder of UMKC School of Law.

The idea behind the research was to figure out whether and how the use of complex language by prosecutors and defense attorneys in their opening and closing statements appears to have impacted the outcome of the case.

The researchers’ approach involved scoring these statements using a three-part model:

  1. Integrative complexity (page 356): used to “assess the complexity of spoken or written communications according to their basic structure” that expresses levels of differentiation (how “differing dimensions are used to describe a given topic”) and integration (how “multiple dimensions [are joined] to form new ideas…about the topic”).
  2. Elaborative complexity (page 357): this is when “a topic is described using two or more differentiated points supporting either a positive or negative dominant theme.”
  3. Dialectical complexity (page 357): this is when “both negative and positive aspects of the same topic are differentiated, giving validity to each side.”

The researchers acknowledge that, while there is evidence in the literature that using simple language may be more effective, even in legal domains, the use of complex language in legal arguments might indicate a more favorable outcome for the lawyer making the argument. According to the authors, a lawyer’s use of complex language seems to indicate a higher level of ability, and complex arguments “contain more flexibility in their potential to persuade wider audiences.” (page 358)

The outcome of their analysis was super interesting. Specifically, they found that “higher elaborative complexity leads to more famous trial wins for the prosecution.”  They cited two reasons for this. First, “elaborative complexity might serve as a heuristic cue,” meaning that a prosecutor who uses complex language indicates to the jury that they are “intelligent and capable.” Second, “elaborative complexity might increase the perceived quality of the argument,” and make it more likely that the jury will be persuaded by it. (page 365)  

Based on their results, the authors also posit that the “strength of the initial case might produce more elaborative complexity.” What does that mean? I suppose it reflects the idea that, in the end, the lawyer can only really be as good as the case they have to work with. If your case is strong, it’s a lot easier to come up with good arguments for your side, as well as good counter-arguments against the other side’s contentions, that work well within a complex linguistic and structural framework. (page 367)

Finally, the authors speculate about why they saw that this worked better for prosecutors than defense attorneys. First, the attorney who has the burden of proof has to make a strong, persuasive argument to meet that burden, and complex arguments may perform this function more effectively than simple arguments do. Furthermore, if a defense attorney attempts to use a series of complex arguments when pleading their case, it may backfire because it makes them appear “too defensive.” (pages 367-68)

An article like this shows the benefit of cross-disciplinary research. While many JD students take trial practice or trial advocacy in law school (as I did), those courses don’t really go into why we can or should use complex versus simple arguments, at least not in the way this article did. The corresponding author of this paper, Alivia Zubrod, is a psychology professor at the University of Montana. Clearly, scholars in psychology and linguistics have a lot to add to the conversation about why lawyers should use certain types of language.

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