Language in the Judicial Process

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Editorial Reviews

Doris Marie Provine
Lawyers are word doctors, exhibiting a skill in the manipu- lation of ideas that makes lay people nervous. One of the first lessons a law student learns is that precision in the use of language is important, not just in the presentation of ideas, but in the details of style and format. I remember my student anxiety over whether there is a space in "F.2d," as if one's professional reputation hangs on such details. Perhaps it does. Case cita- tions, format for briefs, and rules for oral communi- cation that specify the content of a Miranda warning or the way a judge should be addressed are the formal side of law. The student also learns that there are plenty of opportunities to wing it in law, in conversations with clients, in informal negotiations with lawyers, and in the give and take of a trial or appellate argument. Language in these situations is conceived to be as invisible as it is in ordinary conversation, an unremark- able fluid through which ideas are conveyed. The authors of LANGUAGE IN THE JUDICIAL PROCESS argue that this image of legal language is false. Form always counts. There are rules for all types of communication, even the most casual, and violations are met with disapproval or dismissal. Try opening a conversation with an inappropriate salutation, for example, and you are likely to get a reaction. The fact that some requirements are implicit, rather than explicit, renders them no less binding. Insensitivity to the implicit rules that structure communication, in fact, is more perilous because it signals that one is culturally obtuse. Nor is dealing with the formal side of law a simple and honorable matter of following explicit language rules, as law school teaches. Formality and ritual have a political dimension. They are tools the profession uses to control nonlawyers who come within the law's purview: witnesses in trials, unrepresented litigants, jurors, signers of documents. Paul Drew, one of the contributors to this volume, demonstrates how witnesses are forced to communicate by the lawyers' rules, while not quite knowing what they are. Such a practice empowers lawyers as it disempowers witnesses and other adversaries. Trimming lay narratives to professional modes of thought also occurs in small claims courts, as William O'Barr and John Conley show in another of the ten reports from the field that make up this volume. Court reporters help maintain the language regime by cor- recting the grammar and logic of the courtroom professionals "for the record." As Anne Walker shows, they don't cleanse anyone else's speech, though they do exercise significant discretion in rendering spoken English into text. There is no Page 70 follows consensus among court reporters on how to make judgement calls about dialect, simultaneous speech, and other transcription problems, but the appellate judges that depend on trial tran- scripts appear to be oblivious to the whole debate. The myth that language is a transparent medium without a politics of its own is hardest to sustain in the bilingual courtroom, a subject addressed by Susan Berk-Seligson. Official- ly, the translator is a voice machine, a participant without personhood or individuality. The assumption is that translating statements from one language to another calls for little judg- ment. But the trial process itself exposes the falsity of this assumption -- clarifications are often required and it is not unusual for lawyers and judge to begin to address the translator as the spokesperson for a non-English speaking litigant or witness: "Ask him if...." The translator, who is supposed to be invisible, becomes a focal point in the trial. The translator's dilemma is that familiar conceptions of due process do not recognize cultural diversity in speech. Other contributors to LANGUAGE IN THE JUDICIAL PROCESS probe speech and texts outside the courtroom but in settings related to litigation. Michael Johnson, for example, shows how an injured plaintiff in a products-liability case might use language analy- sis to demonstrate deficiencies in a spray-can warning label. Bethany Dumas analyzes the federally-mandated warnings on ciga- rette packages. These authors used experimental techniques to create evidence in pending law suits, but their research also contributes to language theory, specifically to the field lin- guists call "pragmatics," where the focus is on what people understand from words. In the same vein, Georgia Green and Ellen Prince each report on their efforts to convince courts to rely upon a linguist's expertise to analyze conversation. Judges are quite resistant, they found, to deferring to an expert in assess- ing a conversation -- the tendency is to assume that conversation has no structure, or that if it does, the structure is incidental to the important messages, which are easily grasped by law-trained personnel. As these examples suggest, research that focuses on how language is understood can aid litigants who have been harmed by miscommunication, or it might help lawyers demonstrate a speaker's state of mind. Another practical objective might be court reform -- making jury instructions more comprehensible, for example. Two contributions to this volume explore conversations where the potential for application or reform is less apparent. Douglas Maynard discusses the narrative structure of plea bar- gaining. He argues convincingly that the requirements of the narrative form limit the way lawyers conceptualize and present cases, which in turns constrains plea-bargaining deliberations. Austin Sarat and William Felstiner examine the interaction between lawyers and clients as they discuss their suits for divorce; they show how lawyers steer the conversation to accommo- date their own professional ends. All of these contributions are introduced and set into some context in a useful introductory essay by Judith Levi, one of the editors. Page 71 follows Taken as a whole, the book develops a convincing argument that law's taken-for-granted texts, conversations, and language conventions are legally and theoretically significant. One issue is the capacity of the system for change. If as these authors suggest, the codes for discourse in law are exclusionary, culturally-myopic, hierarchical, and sexist, what is to be done? Could power to set the standards of communication be more demo- cratically organized or be made less hostile to lay conventions for talking about trouble? It is, after all, the problems of non-lawyers which provide the grist for the legal mill -- why should legal personnel and practices silence them? I suggest that ritualized politeness, formality, and narrowed narrative forms may be necessary strategies for managing conflict -- a way over difficult emotional terrain and messy data in a situation in which exit is not an option. The possibility that there might be alternative methods for handling conflict, however, is not systematically investigated in this volume. What is missing from LANGUAGE IN THE JUDICIAL PROCESS is a sense of the power of knowledge about language to transform social relations. In a legal context the question is whether changing the rules, or understanding them better, would make a significant difference in how disputes are resolved. In other social contexts language analysis raises the same question. Can women improve their status by understanding the gender differenc- es in conversation? Deborah Tannen has written a best-seller, YOU JUST DON'T UNDERSTAND (Morrow, 1990), arguing that conversa- tion can be more satisfying if we learn from language how others understand the world. But what if the object of all parties to a communication is domination, not engagement? Language is the medium through which power differentials operate and can be observed, but the use to which these observations might be put remains a political question that deserves to be addressed.
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Product Details

  • ISBN-13: 9780306435515
  • Publisher: Springer US
  • Publication date: 10/1/1990
  • Series: Law, Society and Policy Series, #5
  • Edition description: 1990
  • Edition number: 1
  • Pages: 373
  • Product dimensions: 9.21 (w) x 6.14 (h) x 1.00 (d)

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