Skillful Speech and the Law

I recently heard a new term. It is a term of art from a certain religious discipline. That term is “skillful speech.” The person who said it was Joseph Goldstein. He was a guest on on a podcast. He explained that speech often serves no useful purpose other than to announce your presence to another person. Or it can be speaking something other than the truth. And even when we tell the truth, it can be truth spoken in a way that advances no good cause, such as gossip. Or it can be truth delivered with an ill intent. A few mornings ago, I read up on the concept of skillful speech. In a review of one of Goldstein’s books, for instance, the concept is summarized as follows:

“Right speech”—speaking honestly and eschewing lies and gossip, divisive speech and idle chatter—is a crucial part of Buddhist ethics. Joseph invented a practice for himself in order to cultivate greater mindfulness about speech: for several months he refrained from speaking to anyone about a third person. This not only taught him that a large percentage of his conversation involved other people, but helped him notice that much of what he said included comments and judgments about other people. Stopping such speech for a while made his mind less critical toward others, but interestingly also less critical toward himself. Years later that practice continues to alert him when he begins to speak mindlessly about other people.

I decided to give it a try. A few hours later, I fell short of it in a disagreement I had with someone. And this all happened outside of the work context. And I began to wonder, if it is so difficult to speak skillfully in the personal context, how much more difficult is it to use speech skillfully in the litigation context.

In the work context, as a criminal defense attorney, I have begun wondering about the relevance of skillful speech. A good portion of my work is on the page. So, I have the benefit of taking my speech through multiple drafts. And, in the oral argument context, there is opportunity to anticipate questions that might arise. More difficult is the person who, as my children would say, “started it first.” When a person is aggressively unskillful in her speech to me, it can be a challenge to remain skillful in my response. Or when a judge or an opposing counsel speaks in an unkind manner to me, even when I don’t respond in kind in the moment, the real challenge comes in how I describe the event within my office. We often speak of it in terms of “venting” or having a sense of humor. Or we may relish the fact that we are good at it. Much of your social media feeds may consist of unskillful speech.

As I have reflected on it, skillful speech is perhaps most relevant in the work arena. After all, in this arena, I am paid professional in my speech. And as much as I work at what I say in a brief or a motion, I should work just as hard in how I speak to clients, the folks who work the courthouse door, opposing counsel, and the judge. In this area, I should strive to make all speech skillful speech.