The Judge and the Jedi: language, legal power and legal learning

Jane Ching

•“student” ≠ undergraduate

•“lawyer” ≠ solicitor

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O perilous mouths,That bear in them one and the self-same tongue,Either of condemnation or approof;Bidding the law make court'sy to their will:

Measure for Measure

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“You can go about your business. These aren’t the ‘droids you’re looking for…

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bass

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bass

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Some background

Some background

• “There were moggies running about all over”

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Some background

• “There were moggies running about all over”

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Some background

• “There were moggies running about all over”

• Bad Urach

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Some background

• “There were moggies running about all over”

• Bad Urach

• Sutton International Freight Terminal

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Some background

• “There were moggies running about all over”

• Bad Urach

• Sutton International Freight Terminal

• Manresa

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Some background

• “There were moggies running about all over”

• Bad Urach

• Sutton International Freight Terminal

• Manresa

• People’s College

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What people think lawyers do with language

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Lawyers enjoy a little mystery, you know. Why, if everybody came forward and told the truth, the whole truth, and nothing but the truth straight out, we should all retire to the workhouse.  

Dorothy L SayersThe laws and the stage, both are a form of exhibitionism.  

Orson Welles

Those who lie, conceal and distort everything and slander everybodyJean Girardoux

It is a strange trade that of advocacy. Your intellect, your highest heavenly gift is hung up in the shop window like a loaded pistol for sale.

Thomas Carlyle

What lawyers think lawyers do with language

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…lawyers, whose trade it is to question everything, yield nothing, and talk by the hour? …

Thomas Jefferson

Lawyers spend a great deal of their time shovelling smoke. Oliver Wendell Holmes

Lawyers -- a profession it is to disguise matters.   Thomas More

Prescribe, describe, persuade

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I know you lawyers can with ease, Twist words and meanings as you please; That language, by your skill made pliant, Will bend to favour every client;

Prescribe

• “Pardon impossible, to be sent to Siberia”

• “Pardon, impossible to be sent to Siberia”

• The truth

• The whole truth; and

• Nothing but the truth

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• “Pardon impossible, to be sent to Siberia”

• “Pardon, impossible to be sent to Siberia”

• The truth

• The whole truth; and

• Nothing but the truth

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Anti-Slavery Day Act 2010

S 1 The Secretary of State shall by order made by statutory instrument specify a date which shall be observed each year as Anti-Slavery Day.

Does that mean it’s a bank holiday?

Children Act 1989

S 105(6) In determining the “ordinary residence” of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place- …

What if the mother of the child is also under 18?

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• “If a man be adherent to the King’s enemies in his realm giving them aid and comfort in the realm or elsewhere…”

Treason Act 1351

• Means:

• If a man be adherent to the King’s enemies in his realm, giving them aid and comfort in the realm or elsewhere…”

• If a man be adherent to the King’s enemies in his realm (giving them aid and comfort in the realm) or elsewhere…”

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Describe

, mself.

Lawyers and painters can soon change white to black

Goods and chattels

Will and testament

Breaking and entering

Give, devise and bequeath …

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It is an offence recklessly to ….

Does that mean:

•Realise there is a risk but decide to ignore it anyway

•Realise there is a risk but miscalculate its size/likelihood

•Not realise there is a risk when any ordinary/sober adult would realise there was one

•Not realise there is a risk when someone of the same age/intelligence/state of mind would realise there was one

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Success is:

• Unlikely/improbable

• 15%

• Likely/probable

• 70%

• Possible

• 15% - 95%

• You have:– A good chance of winning– A small chance of losing

• So a “reasonable prospect of success” means ..?

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Persuade

The most successful trial lawyers are often master storytellers, making their cases come to life for their jurors. The reason is that stories matter ... stories are the deepest and most obvious way that humans organize, communicate, receive,

and digest facts.

• Matilda has been married for almost 10 years

• Matilda has been getting home late several nights each week

• Matilda has been seen carrying a holdall

• Matilda has maxed out her credit card this month

• Matilda has been seen in town with an attractive young man who is not her husband (or a relative)

• More than once

• In the evenings

• At a gym

• Matilda has been very secretive in the past few weeks …

• … because she has been taking dancing lessons to impress her husband at their 10th anniversary party …

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Sometimes it’s just listening to what is said (or not)

“I did not have sexual relations with that woman”

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Sometimes it’s just listening to what is said (or not)C-- Did you ever kiss him?

W--Oh, dear no.  He was a peculiarly plain boy.  He was, unfortunately, extremely ugly.  I pitied him for it. C--Was that the reason why you did not kiss him? …C--Did you say that in support of your statement that you never kissed him? …C--Did you ever put that forward as a reason why you never kissed the boy? …C--Why, sir, did you mention that this boy was extremely ugly?

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Translate

Lawyers are like doctors. They've each a secret language of their own so that if you get a letter from one lawyer you've got to take it to another to get it read, just like a doctor sends you to a chemist with a rigmarole that no one else can read, so they can charge you what they like for a drop of coloured water.

Translate

…through a translator, one can be heard and understood in places where otherwise one is mute. … translation offers both an image of the constraints upon a lawyer’s ability to represent fully his client’s story and a model for recognizing and managing …changes in meaning in a way that may empower … the client.

Cunningham, 1991.

What lawyers do with language

• Understand it

• Create it

• Guard it?

• Obscure it?

• Analyse it

• Manipulate it

• Listen to it

• Articulate in it

In order to:

• Translate it?

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• Elizabeth the Second, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of our other realms and territories, Queen, Head of the Commonwealth, Defender of the Faith.

• To [name]

• We command you to attend at the sittings of the Queen’s Bench Division of Our High Court of Justice on the day fixed for the trial of the above-named cause, notice of which will be given to you, and from day to day thereafter until the end of the trial, to give evidence on behalf of the Plaintiff

• Witness the Right Honourable Lord Mackay of Clashfern, Lord High Chancellor of Great Britain …

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• Elizabeth the Second, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of our other realms and territories, Queen, Head of the Commonwealth, Defender of the Faith.

• To [name]

• We command you to attend at the sittings of the Queen’s Bench Division of Our High Court of Justice on the day fixed for the trial of the above-named cause, notice of which will be given to you, and from day to day thereafter until the end of the trial, to give evidence on behalf of the Plaintiff

• Witness the Right Honourable Lord Mackay of Clashfern, Lord High Chancellor of Great Britain …

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You must come to court

to give evidence for the

Plaintiff. You must stay

until the tria

l has

finished.

Translating (or not)

“My client was not there on the night of the offence…”

“My client instructs me that he was not there on the night of the offence …”

“They were running around on deck like headless chickens.”

Alex Lawrie Factors v. Morgan and others [2001] CP Rep 2, CA.

“Yo soy culpable”

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So what does this mean for educators?

It is the demands of the values and reasoning practices of the law that call forth the language students need to deploy, but it is only through language that students can enact the legal expertise they are required to demonstrate. An inclusive curriculum needs to incorporate both.

Moiraitis and Murphy, 2013

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Reading• Bellos, D. 2012. Is that a Fish in Your Ear? Translation and the Meaning of Everything. (Faber)

• Breakey, P. 2012. Assessment of the use of English in undergraduate law degrees: are law schools complying with the QAA subject benchmark? The Law Teacher, 46(1), 38-49

• Brooks, P.1998. Law's Stories: Narrative and Rhetoric in the Law. (Yale University Press)

• Bryson, B. 1984. The Penguin Dictionary of Troublesome Words. (Penguin)

• Cao, D. 2007. Translating Law (Multilingual Matters)

• Ching, J. 1999. Civil procedure: part 24 - how real is a real prospect of success . Nottingham Law Journal. 8(2), 28-47.

• Ching, J. 2006. Communicating risk: words or numbers?  The Commercial Litigation Journal, 10 (Nov/Dec) , 2-5.

• Conley, J.M. and O’Barr, W.M. 2005. Just Words: Law, Language and Power (2nd. Ed., University of Chicago Press)

• Cotterill, J. (ed.) 2004. Language in the Legal Process (Palgrave)

• Coulthard, M and Johnson, A. 2007. An Introduction to Forensic Linguistics: Language in Evidence (Routledge)

• Crystal, D. 2004. The Stories of English. (Allen Lane)

• Cunningham, C.D. 1989. A Tale of two Clients: Thinking about Law as Language. Michigan Law Review, 87(8) 2459-2494

• Cunningham, C.D. 1991-1992. The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse. Cornell Law Review, 77, 1298-1387

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Reading• Fairclough, M. 2001. Language and Power. (2nd ed., Longman)

• Giannoni, D. and Frade, C. (eds.) 2010. Researching Language and the Law: Textual Features and Translation Issues (Peter Lang)

• Gibbons, J. 2003. Forensic Linguistics: An Introduction to Language in the Justice System. (Wiley-Blackwell)

• Gibbons, J. (ed.) 1994. Language and the Law (Longman)

• Gibbons, J. and Prakasam, V (eds.) 2004. Language in the Law (Orient Longman)

• Gopen, G.D. 2006. Writing Clear and Effective Legal Prose. Law Practice, 32(3), 60; 32(4), 50; and 32(5)

• Harvey, M. 2002. What’s so special about legal translation? Translators’ Journal, 47(2) 177-185

• Lewinbuk, K.P. 2008. Can Successful Lawyers think in Different Languages? Incorporating Critical Strategies that Support Learning Lawyering Skills for the Practice of Law in a Global Environment. Rich. J. Global L. & Bus., 7 1

• Marsh, D. and Hodsdon, A. (eds.) 2007. The Guardian Book of English Language (The Guardian)

• Mellinkoff, D. 1963. The Language of the Law (Little, Brown)

• Moraitis, P and Murphy, H. 2013. Language, law and identity a language and learning response to the challenges of widening participation of students in law subjects. The Law Teacher, 47(2), 159-191

• O’Barr, W. 1982. Linguistic Evidence: Language, Power and Strategy in the Courtroom (Academic Press)

• Olssen, J. 2009. Wordcrime: Solving Crime Through Forensic Linguistics (Continuum)

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Reading• Pasternak, M. and Rico, C. 2008. Tax Interpretation, Planning and Avoidance: Some Linguistic Analysis .

Akron Tax Journal, 23, 34-79

• Pintore, A. and Jori, M. (eds.) 1997. Law and Language: the Italian Analytical School (Deborah Charles)

• Posner, R. 2009. Law and Literature (3rd ed.; Harvard University Press)

• Shuy, R. W. 1998. The Language of Confession, Interrogation, and Deception (Sage)

• Shuy, R.W. 2008. Fighting Over Words. (Oxford University Press)

• Tiersma, P. 2000. Legal Language (2nd ed., University of Chicago Press)

• Ward, I. 1999. Shakespeare and the Legal Imagination (Butterworths)

• Ward, I. 2008. Law and Literature: Possibilities and Perspectives (Cambridge University Press)

• Watt, G. 2009. Equity Stirring: The Story of Justice Beyond Law (Hart Publishing)

• White, J.B. 1985. The Legal Imagination (University of Chicago Press)

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