The Judge and the Jedi language legal power

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

• “student” ≠ undergraduate • “lawyer” ≠ solicitor 03 March 2021 2

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 03 March 2021 3

03 March 2021 4

“You can go about your business. These aren’t the ‘droids you’re looking for… 03 March 2021 5

bass 03 March 2021 6

bass 03 March 2021 7

Some background

Some background • “There were moggies running about all over” 03 March 2021 9

Some background • “There were moggies running about all over” 03 March 2021 10

Some background • “There were moggies running about all over” • Bad Urach 03 March 2021 11

Some background • “There were moggies running about all over” • Bad Urach • Sutton International Freight Terminal 03 March 2021 12

Some background • “There were moggies running about all over” • Bad Urach • Sutton International Freight Terminal • Manresa 03 March 2021 13

Some background • “There were moggies running about all over” • Bad Urach • Sutton International Freight Terminal • Manresa • People’s College 03 March 2021 14

What people think lawyers do with language 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 Sayers The laws and the stage, both are a form of exhibitionism. Orson Welles Those who lie, conceal and distort everything and slander everybody Jean 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 03 March 2021 15

What lawyers think lawyers do with language …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. Lawyers -- a profession it is to disguise matters. 03 March 2021 Oliver Wendell Holmes Thomas More 16

Prescribe, describe, persuade 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; 03 March 2021 17

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 03 March 2021 19

• “Pardon impossible, to be sent to Siberia” • “Pardon, impossible to be sent to Siberia” • The truth • The whole truth; and • Nothing but the truth 03 March 2021 20

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? 03 March 2021 21

• “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…” 03 March 2021 22

Describe , mself. Lawyers and painters can soon change white to black

Goods and chattels Will and testament Breaking and entering Give, devise and bequeath … 03 March 2021 24

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 03 March 2021 25

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. . ? 03 March 2021 26

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 10 th anniversary party … 03 March 2021 28

Sometimes it’s just listening to what is said (or not) “I did not have sexual relations with that woman” 03 March 2021 29

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? 30 03 March 2021

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? 03 March 2021 33

• Elizabeth the Second, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland 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 … 03 March 2021 34

• Elizabeth the Second, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland of our other realms and territories, Queen, Head of the Commonwealth, Defender of the Faith. t r u o c o e t h t e r m o y f • To [name] o a c e t t c s s n tsittings of u e s • We command you to attend at the d u m i v m. Our High u the Queen’s Bench Division of e o u eon the Y o s v Y i Court of Justice day fixed for the trial a g h . lnotice of the above-named of which to ntiff cause, a i r t from day to day i to you, eand will be given a l P il thend of thereafter until the trial, to give t. dthe Plaintiff evidence u onnbehalfe of h s i n • Witness the fi. Right Honourable Lord Mackay of Clashfern, Lord High Chancellor of Great Britain … 03 March 2021 35

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” 03 March 2021 36

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 (2 nd. 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 03 March 2021 39

Reading • Fairclough, M. 2001. Language and Power. (2 nd 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) 03 March 2021 40

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 (3 rd 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 (2 nd 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) 03 March 2021 41