You might think that “saying nothing” is not most lawyers' forte. And you would be correct. But before you start jumping to the conclusion that I am merely being critical again, gratuitously bashing my compadres in the profession, let me direct you again to King Lear to get a handle on what it means to "say nothing."
Lear invites his youngest, Cordelia, to tell the world just how much she loves dear old dad in exchange for getting a third of his kingdom: “what can you say to draw/ A third more opulent than your sisters. Speak.”
Cordelia responds as follows: “Nothing, my lord.”
Lear is incredulous: “Nothing?”
Cordelia repeats: “Nothing.”
Lear, starting to lose it, urges her: “Nothing will come of nothing. Speak again.”
But she refuses to play ball. And Lear, of course, is completely wrong—something will definitely come of nothing. In terms of this play, the “something” turns out to be really, really bad for everyone concerned.
I’ll wager that something almost always comes of nothing. Because “nothing” is almost never really “nothing” to begin with, especially if we’re talking about communication. I can think of at least three ways that “saying nothing” means saying something rather concrete.
First, when you “say nothing” by responding to some action with silence, you are not really saying nothing. The non-response is either an act of omission perhaps speaking to your shiftlessness or an active choice not to participate in a particular language game for any number of reasons--sound or otherwise. For instance, when a party to a lawsuit files a motion and the party on the other side of the lawsuit says nothing in response, many courts have local rules stating that the court is entitled to interpret the lack of a response as a sign of no opposition to the other guy’s request. In other words, saying nothing is officially interpreted as meaning something quite specific. In other contexts, such as discretionary appeals to the highest court in a jurisdiction—like the Supreme Court of the United States—a party can elect to say nothing in response to the petitioner’s attempt to get the Court to agree to hear the appeal. In such instances, saying nothing could, perhaps, be viewed as a kind of yawn, as if the non-responding party is saying, “Court, I am not bothering to say anything about this petition because this appeal is so lame. It does not merit your attention. Nothing novel here. Petitioner is just whining because it lost below. And just as I am not bothering to respond, you shouldn’t bother to take up this measly request for error correction.”
Second, a person can also literally say the words “Nothing,” as Cordelia does. I am sure we have all been participants in real-life exchanges that go something like this:
Person X: What were you doing in there?
Person Y: Nothing.
Person X: You haven't said anything since dinner. What's the matter?
Person Y: Nothing.
Person X: Really, what's on your mind?
Person Y: Nothing.
In these situations, most people know that "nothing" does not mean anything close to "nothing." It really means "I don't want to tell you" or "I am so mad if I say anything else I might spit in your eye." And, as Cordelia does not seem to realize, in certain contexts, nothing is more provocative than saying “nothing.”
Third, a person can “say nothing” by going on and on yet utter little of value. Never a good idea, especially for lawyers. Yet finding legal briefs filed by lawyers from fancy law firms that suffer from this condition is not difficult. Indeed, briefs that go on and on and yet say nothing tend to invite a desire to respond by saying nothing as per the first example described above. But then you may have the problem that, by saying nothing in that way, you will be misinterpreted by a learned judge. The court may think your nothing amounts to saying “I don’t disagree” when what your non-response really means “I think those arguments amount to worthless drivel.”
Lear makes clear, over and over again, that the man Lear is dead wrong: something will always come of saying nothing. And those who think they can “say nothing” or take some action because “it shall lose [them] nothing” (I.2.125) are nothing but sorely mistaken.