Vol. 1, No. 5 (July, 1991), pp. 69-71
LANGUAGE IN THE JUDICIAL PROCESS by Judith N. Levi and Anne
Graffam Walker (Editors). New York: Plenum Press, 1990. 373 pp.
Cloth $49.50.
Reviewed by Doris Marie Provine, Department of Political Science,
Syracuse University
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
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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.
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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.
Copyright 1991