Do Lawyers Talk Differently?

Do Lawyers Talk Differently?

This paper presents some of the findings of research into English lawyers' oral discourse. The research aimed at collecting and analyzing authentic data used for giving advice and speaking about the legal issue of a case to see how native speakers use the language in this context and to find out if there are any significant differences firstly between the language used by lawyers and laypersons secondly between written and oral legal discourse. Marked differences seem to be not at the level of lexis but rather at the level of syntax, personal involvement, rhetorical and cognitive structuring.

Introduction

Legal discourse is an area which has not been studied as extensively as other fields. However, a considerable amount of literature is devoted to certain genres eg. law reports, statutes, books on law, contracts, insurance policies or briefs of the written discourse and decisions, jury instructions, examining and cross-examining witnesses at trials, police investigations of the spoken discourse. The scope of the documents assayed ranges from the philosophical and socio-cultural overview (Goodrich,1990, 1995) to highly focused problems, eg. the thematic structure of lawyers' briefs (Kurzon, 1 939j91j 985). Nevertheless, legal language has some overall characteristic features on levels of vocabulary, sentence structure and textuality as shown by eg. Wright (1978), Crystal and Davy (1980), Davie (1982), Bhatia (1977, 1983, 1993) or Bhatia and Swales (1983) (see  below).

The research described in this paper is aimed at collecting and analyzing authentic data used to give advice and to speak about the legal issue of a case, to see how native speakers use the language in this context and to find out if there are any significant differences 1) between the language used by lawyers and laypersons, and 2) between written and oral legal discourse. Marked differences seem to be not at the level of lexis, but rather at the level of syntax, personal involvement, rhetorical and cognitive structuring.

Methods

In my research, I collected and analyzed authentic data used for speaking about the legal issue of a case, to see how native speakers use the language in this context. First, I selected two similar negligence cases, which were not very complex, to ensure that even laypersons might tackle the problem. One case was published in the magazine called Which? The Independent Consumer Guide (May, 1995). Its back cover is always devoted to the Brief Cases column, where two cases are presented, together with their solution, in an everyday, standard style. The other case was copied from the All England Law Report, from 1932. An adapted version of this case published in Cumps (1981) was also used.

As my aim was to investigate how lawyers use the language, I had two groups of informants: native-speaker lawyers and laypersons working in Birmingham, UK, to be able to define the specific features of lawyers' talk.

In accordance with the aims of my research, lawyers were given both the text copied from the Law Report and the one from the magazine, to see if the significantly different language input would result in significantly different language use during the implementation of the task or not. Laypersons were given either the case published in the magazine or the adapted version of the law report, to make sure both cases induce the same kind of language use. The task of both groups was to answer the question: Who, do you think, the person involved in the case might sue for damages? On what grounds? Answers were recorded then transcribed and analyzed to find the typical features of language use in this context of situation and to see if there are some significant differences between the language used by lawyers and laypersons.

Results

Lexico-grammatical level

Some salient features of legal discourse regarding vocabulary based on Crystal and Davy (1980) are as follows:

archaic words and forms eg -eth for 3rd person Singular

technical terms eg litigant, tort

common terms used in one restricted meaning eg proposal, material

formerly technical words used in one meaning only eg liable

adverbials to which a preposition-like word has been suffixed eg hereto, thereof

characteristic collocations of synonyms or near-synonyms eg able and willing, made and signed

high proportion of words which seem highly formal in their effect eg duly, deemed, expiration

adjectives are rare

intensifying adverbs are completely absent

The vocabulary used by lawyers and laypersons differ, but not significantly, perhaps due to the common language input and to the situation: lawyers talked to a layperson and laypersons were all educated. However, lawyers use some technicalities eg plaintiff, defendant, small claim, and liable. But eg negligence is also used by laypersons. A feature of spoken legal language can also be traced in lawyers' talk: fixed legal formulae embedded in speech eg "they are under an obligation to ensure", "it'll be a claim for damages" or " Elaine is the injured party or plaintiff who suffered injuries which would be worth for small claim." As to the last feature in our list, intensifying adverbs are used, however, mainly by laypersons eg absolutely fulfilled, extremely careless, highly open to question or challenge very strongly. Only one lawyer used such a device: not quite certain. These qualifiers occur in the part where the informants argue the case and their purpose is to evaluate. The purpose of using adjectives is also evaluation eg faulty item or identification eg contractual relationship, civil case, legal proposition. There is only one occasion when an adjective expresses emotion and not factual description : poor Elaine. Using Halliday's terminology, adjectives are rather Classifiers than Epithets in a Nominal Group.

The other feature of adjectives is that they tend to appear as head of a group that is a Complement to a copular verb rather than a modifier of a noun eg the product was unsatisfactory. This last remark leads us one level up: to sentence.

The most important features of written legal discourse on syntactic level - based on Crystal and Davy (1980), Bhatia and Swales (1983) and Bhatia (1993) - are:

long self-containing sentences - twice the average in the Brown Corpus

high nominalisation

complex prepositional phrases

preference for post-modifiers instead of pre-modifiers

binominal or multinominal expressions i.e. a sequence of two or more words or phrases belonging to the same grammatical category having some semantic relationship and joined by some syntactic device such as and, or

frequent and lengthy adverbial insertions between Subject and main verb

lengthy and elaborate initial sentence-settings/qualifying sections

high frequency of passive structures

relative frequency of non-finite clauses

special use and meaning of a number of auxiliaries eg shall expresses obligatory consequence of a legal decision

Their purpose is to make texts clear, precise, unambiguous and all-inclusive. Even spoken legal discourse aims to be precise, formal and impersonal.

The most noticeable feature of the data is the long complex sentences often containing rankshifted/embedded clauses most of which are restrictive/defining relative clauses eg he was the person who did the act which caused the incident. Recursion, when prepositional phrases and relative clauses recur one within another, is also frequent. A typical sentence exemplifying all the above: She might sue the.. the people who made the...the ginger beer I presume because they were the people who were responsible for the ...uhm. for the producing of the product that was unsatisfactory. Relative clauses are often insertions between Subject and Finite/Predicator eg the person who brings the goods which turn out to be wrong .uhm.. will. Another common feature is the frequent use of prepositional phrases eg makers of the ginger beer, evidence of the serious illness, action for negligence against ASDA store. These are characteristic of both groups. Due to the nature of the task, another typical sentence-type of both groups is reporting sentences: either reporting clause complexes with non-finite rankshifted clauses as is common in proposals or with dependent clauses as the projected clause, the latter type being more frequent in both groups. One significant difference is that lawyers more often use all the above features in one sentence: The facts are perhaps not sufficient enough to  tell whether.. the .. customer's been negligent in picking up the tin from the top shelf and with so doing knocking a third tin on to the head of Elaine ..uhm nor is it easy to tell whether the shop'd been negligent in allowing a tin in a position in a way that the customer might knock it and ... and allow to fall on . on the head of poor Elaine Charman.

Frequent use of modal auxiliaries might, would, could and should and also of adverbs and adjectives / used as modal adjuncts/ eg perhaps, probably, possibly, likely for expressing a lower degree of certainty and hedging is typical of both groups. Using certain verbs for expressing involvement is more typical of the laypersons' texts eg. I think, I presume, I would imagine. Lawyers tend to express such uncertainty by avoiding the personal pronoun I and using it or a noun instead e.g. sounds like, the facts seem to suggest, the facts are perhaps not sufficient enough to tell, it looks as though. In this respect, these utterances lack a feature of legal discourse, as they do contain personal involvement i.e. the speaker expresses "his opinion or attitude towards the proposition that the sentence expresses or the situation that the proposition describes" (Ghadessy, 1984:215).

However, lawyers' utterances occur at a lower degree of involvement. One form of expressing them is the use of a particular topical theme in the Hallidayian (1994) sense, where the theme is the idea represented by the constituent at the beginning of the clause. In lawyers' utterances, the typical theme is inanimate eg. the case or the facts, or, even if it is animate, it is neither the speaker itself, nor is it a proper noun, eg. the person. Another device representing impersonal style is the use of passive structures: "the injury was caused to her because of the way in which the goods on the shelves were .. were store were stocked .. uhm .  and she could argue that they are under an obligation to ensure that their shop is maintained in such a condition that accidents of this sort don't happen."

On a textual level, multiple thematic structure is a common feature, i.e. the relatively high proportion of textual and interpersonal themes. Typical textual themes are the relative pronouns eg. who, which or that; among conjunctive adjuncts therefore is the most frequent; due to oral mode continuatives also appear in theme position eg. well. Modal adjuncts eg. probably are the typical interpersonal themes. Another feature of thematic structure is the use of marked themes where the given information does not occur at the beginning of a clause. Cleft sentences with their predicated theme are the typical examples: it is basically ASDA that are negligent. They are regarded marked, although the grammatical subject of the sentence, an empty (dummy) it, is the theme. Its function is to emphasize the main message of the sentence.

In addition to the structural component, the cohesive component of textuality is worth examining. As is summed up by Bloor (1995), the elements of the latter are reference, ellipsis & substitution, conjunction and lexical cohesion. This aspect of the utterances would be worth investigating more thoroughly but due to the constraints of this work I can highlight only the most important features. As to linking ideas the conjunctions and, but, or and so that are mainly used; among conjunctive adjuncts therefore is the most frequent. All function as signposts for indicating the direction of the argument. Though spoken discourse is usually not rich in linking devices, these utterances contain both intra- and intersentential connectors in plenty, partly because of the task /reasoning and arguing/, partly because of the genre /spoken monologue/ which is halfway between planned discourse and conversation. Another feature of legal discourse, the scarcity of pronoun reference and anaphora even within a sentence and the repetition of lexical items as the main means of cohesion, is not typical of these utterances. Although repetition is used, its function is not to avoid pronoun reference in order to be unambiguous. But this leads us to the rhetorical-level analysis.

Rhetorical level

Features of organizing larger stretches of discourse are genre dependent. A determinative factor is that these utterances are monologues: "spontaneous spoken language, not previously prepared, and used in situations where other may be present but not meant to join in" (Abercombie cited by Darian, 1983:32). On the one hand, it has been shown (see below) that language is autonomous in so far as overt lexical markers relate sentences and parts of sentences to each other. Redundancy is also characteristic of monologues where "everything must be clear from the delivery. If not, the message is lost. For this reason, the speaker must reintroduce key ideas and concepts" (ibid p41). This provides a pattern of recycling a topic that has not been resolved. Repetitions serve mainly this function eg. "Action was brought against the manufacturer of the ginger beer I haven't previously mentioned that she did not bring an action against the person who'd given her the ginger beer because" ... "she in fact didn't bring an action . uhm . didn't bring a successful action against the retailer of the shop because" ... "she brought the action instead against the manufacturer ". On the other hand, utterances display features of spontaneous speech too eg. false starts, continuitives, degressions, repetitions and colloquial phrases such as if you like. Just one example from a lawyer's utterance to show it is a feature of both groups: I would sue the manufacturer the ginger beer manufacturer . and and and  yeah for negligence uhm because they .. well they should not have allowed a what was it a snail to enter in the the ginger beer.

A feature of rhetorical patterning that is typical only of lawyers' utterances is that lawyers seem to build up their texts according to the pattern of legal cases in specialist literature. The moves of legal cases in specialist literature (Bhatia 1993:135-136):

Identifying the case

Establishing facts of the case

Arguing the case - Stating history of the case

Presenting arguments

Deriving ratio decidendi

Pronouncing judgement

This pattern seems to be followed, in that lawyers nearly always first say something about the nature of the case itself, and then go on to establish the facts and argue the case eg Well . it's a civil case or Uhm it's a case from 1928. Laypersons never identify the case but usually begin with recommending action eg I think that .. uhm. the lady who became ill of drinking the ginger beer should have her money refunded from the cafe and then present arguments. Sometimes in the end they change their opinion and give other advice eg. the end of the above utterance: Therefore I think that she should sue either the makers of the ginger beer .. or if the ginger beer is packaged by separate company .. that maybe . she should sue the company that packages it.    

Conceptual level

The finding of Crystal and Davy (1980) about the typical sentence pattern of legal discourse: If X then Z shall do/be Y  seems to characterize the utterances of both groups except for the auxiliary which in our case is should (see last example below). This cognitive structuring is entailed by the purpose of communication i.e. to give advice after defining the conditions under which it is applicable or in other words to reach a verdict based on the balance of probabilities which is otherwise the standard of proof in civil cases. Lawyers' utterances contained two other typical structures used for this function: The possibilities are either ... or ... eg. "the possibilities are that she might sue either the customer . or the . store" and X might do/be Y or Z eg. "possible defendants ... would be either .. the . customer .. uhm .. for negligence .uhm . or possibly . the shop".

Discussion

The aim of the investigation was to find out how native speaker lawyers use language when giving advice and speaking about the legal issue of a case to a layperson, how this language differs from written legal discourse and from language used by laypersons. Analysis was carried out with respect to lexico-grammatical features on lexical, syntactic and textual level, features of rhetorical patterning, and cognitive structuring.

Lexis used by lawyers and educated laypersons do not differ significantly except for some set phrases of legal discourse embedded in lawyers' speech. As to syntax the main difference is that lawyers apply the syntactic features (complex sentences with lengthy adverbial insertions and prepositional phrases) of written legal language more intensively than laypersons as they are better trained in how to be precise and unambiguous. Devices of impersonal style are characteristic only of lawyers' utterances. One feature, lack of personal involvement is reversed here due to the purpose served by the genre, namely reasoning and arguing. Devices for expressing personal involvement are: modal auxiliaries, modal adjuncts and special verbs. In accordance with the twofold nature of the genre (monologue), textuality bears features of both written and spoken discourse. Some of the salient ones are: marked and multiple themes, pronoun reference (unlike in written legal discourse), frequent use of connectors - like in written discourse - and common features of spontaneous speech.

On the rhetorical level, the use of context-based language is characteristic, with redundancy as the most important feature to realize a certain pattern of recycling ideas. Lawyers tend to apply the rhetorical pattern of legal cases in specialist literature, the rhetorical pattern of lay-texts is different. As to the conceptual level, lawyers have a wider repertoire of cognitive structuring to serve the given purpose of communication.

What forms, patterns and strategies are used when lawyers discuss the legal issue of a case can be subject to further investigation. Another direction that may be followed is to implement similar investigations but in different contexts eg to see how professionals working in EU context use the language.

References

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