Forensic English by Natalie Udina

FORENSIC ENGLISH COURSEBOOK FOR LAW STUDENTS

N.N. Udina

MOSCOW 2014

CONTENTS Unit 1 Language and Law Unit 2 Forensics and Forensics Unit 3 Forensic Linguistics Unit 4 The creation, structure and interpretation of legal text Unit 5 Public Text Unit 6 Talking Like a Lawyer Unit 7 The Legal Lexicon Unit 8 Legal Writing Unit 9 The Plain English Movement Unit 10 Defining Plain English

INTRODUCTION Forensic English is an intermediate-level course book for law students and other learners who need English for academic study, research and work in legal sphere. It has been developed on principles of interdisciplinary and communicative approach in LSP. The course envisages the main discipline areas: legal language and legal discourse development and language and law interrelation with the aim of developing professional communication skills. The course book introduces students to the specific features and the use of legal English focusing on language and law relationship. It can be used in different legal English courses for bachelor and master programmes as well as for autonomous studies. The course book is intended for developing language and communicative competencies and translation skills. Course Objectives are: ❏

To outline language and law relationship.

❏

To acquaint learners with legal language features and functions.

❏

To develop reading comprehension of legal texts.

❏

To train various receptive and productive types of speech activity.

❏

To develop argumentative speaking skills.

❏

To improve reflective thinking and writing. Forensic English course book consists of ten units which cover different themes such as legal

English and legal text development, specifics of legal lexicon and legal writing, the plain English movement, development of Forensic linguistics, forensics as argumentative speaking. These topics manifest close interrelations of Language and Law. Each of Units 1-10 comprises Reading, Terminology Focus, Translation and Speaking Sections. There are other sections – Listening and Case study which are given in different units to expand topics related to the unit main themes and diversify students learning activities. Sections Project work and Reflective writing are intended to assess students’ progress.

UNIT 1 READING LANGUAGE AND LAW The law is a profession of words. David Melinkoff (1)

It’s hard to know when exactly the study of language and law began. But there has always

been a close relationship between these two fields, even if that relationship has not always been formally acknowledged. (2)

There are some scholars who seem to believe that emergence of law necessarily

presupposes the existence of writing. Yet despite the close historical connection between writing and law, writing is not essential to the existence of law. An excellent example is medieval Iceland. Once a year, people would gather from all around the island to attend the Althing, a type of folk assembly or parliament. The Althing took place at Thingvellir, a dramatic setting where the Euroasian tectonic plate meets the North American plate. One of the main purposes of the Althing was to settle disputes. Iceland at that time did not have a written code. Yet Iceland did have law. We know this because the official who presided over the Althing was called lögsögumađr, or “lawspeaker”. Every year, the lawspeaker was required to recite from memory one-third of Iceland’s law to those who had gathered at Thingvellir. Thus, the entire corpus of law would be recited in Althing at Thingvellir

three-year cycles. [Quinn 2000].

(3) Language is essential to law in at least two ways. First, laws or legal norms cannot exist without the ability to articulate or describe them in language. Secondly, language is an essential tool in carrying out the business of law. There is an extremely close relationship between language and law. (4) Although this relationship is an ancient one, it’s not clear when scholars first began to explicitly think about it or study it. We do know that people have been thinking about the consequences of writing down law for quite some time. About 500 BC, a Chinese prime minister ordered that certain laws be written down on bronze tripod vessels. The vessels themselves have been lost. But scholars know they existed because of a surviving letter written at the time by another government official. That official objected to the writing down of law, because he believed that people would stop following 4

accepted norms of behavior and would instead “make their appeal to the written word, arguing to the last over the tip of an awl or knife.” (Bodde&Moriis, 1973) (5) In contrast, the work of Plato suggests that the ancient Athenians had a more positive view of written law. In a speech by Clinias, he stated that “legal ordinances when put

writing

remain

wholly

unchanged, as though ready to submit to examination for all time,

Chinese Tripod Vessel

so that one need have no fear even if they are hard to listen at first, seeing that even the veriest dullard can come back frequently to examine them” (Plato 1926: 319). Plato and Aristotle

(6) Given that language and law are so closely linked, and that people have been thinking about the relationship for millennia, the

field of language and law remains a relatively marginal discipline. One of the major reasons that legal education, and the legal profession more generally, pays very little explicit attention to it. At least in the United States, lawyers and law professors tend to view language as a tool, rather than object of study. Lawyers are users – often very good users – of language, but most of them don’t consciously think about it very much. (7) Classes on language and law are rare at American law schools. The closest that American law schools come to a course on language and law is that almost all of them offer classes on legal writing. These are usually skills classes that teach students how to use language for specific purposes, such as writing legal memoranda or briefs, rather than focusing on the relationship between language and law. (8) If language and law is a discipline that has not realized its potential, the obvious question is what can we do about it? A realistic option is collaboration between scholars of law and scholars of language. Working together may not always be easy. In the United States, law schools tend to be physically, or at least institutionally, detached from their universities. It may be that collaboration is more practical in Europe, where law faculties are ordinary departments within universities, rather than separate professional schools. Another way of fostering more dialogue and collaboration is by means of organizations and conferences that bring scholars of language and law together. (Abridged from Peter Tiersma Language and Law. Does Anyone care? http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1352075 ) 5

I. Comment on the following issues of the text: ❏

Was writing essential to the emergence of law?

❏

What was Law in Medieval Iceland?

❏

In what ways language is indispensable to administration of law?

❏

Can we say that language and law relationship is ancient?

❏

What two opposite statements about written law are provided in the text?

❏

How do lawyers view the role of language in their profession?

❏

Are classes on language and law taught at law schools?

❏

What is a realistic option of introducing language and law studies at universities?

❏

Why is collaboration between scholars of law and scholars of language more practical in Europe?

❏ What other ways of bringing scholars of language and law together could you think of? II. Identify two premises and conclusion in Paragraph 3. The basic argumentative structure consists of two premises and conclusion. Premise – a statement or idea that is accepted as being true and that is used as the basis of an argument. Conclusion – an opinion or decision that is formed after a period of thought or research. III. Find in the text the premises to the following conclusion: “Despite the close historical connection between writing and law, writing is not essential to the existence of law.” IV. Which of the following statements most strengthens the following argument: “Lawyers and law professors tend to view language as a tool, rather than object of study.” The field of language and law remains a relatively marginal discipline. Lawyers are users – often very good users – of language, but most of them don’t consciously think about it very much Classes on language and law are rare at law schools.

TERMINOLOGY FOCUS Match the legal terms and their definitions A a national representative body having supreme legislative powers within the state; 1. Argument

B an authoritative command or order

2. Assembly

C a course of reasoning aimed at demonstrating truth or falsehood

3. Parliament

D a group of persons gathered together for a common reason, as for

4. Law

legislative, religious, educational, or social purpose;

5. Ordinance

E the body of rules and principles governing the affairs of community and enforced by a political authority; a legal system;

Find the definitions of the following terms in the Free Dictionary by Farlex http://www.thefreedictionary.com and think of Russian equivalents to these terms: Althing, lawspeaker, scholar, lawyer; dispute; TRANSLATION Work in pairs: ask each other to translate separate words in the text, you may check the meaning of most difficult words in the vocabulary at the end of the course book. Then translate one of the text paragraphs, each group will present their translation for general discussion in class. Consider the translation strategies you have used (translation plan) e.g. whether you used literal translation, whether you considered the context to derive the right meaning. What syntactic strategies have been used: have you changed any sentence structure?

SPEAKING ACTIVITIES I. Study the list of phrases expressing the speaker’s agreement or disagreement and use them in response to your classmates’ statements/opinions of the issues discussed in the text above: ❏ How to agree strongly with smb’s opinion: That’s absolutely true! I couldn’t agree more! I agree with this point; I’d go along with you there; I’m with you on that; That’s just how I see it; That’s a good point. ❏

How to half agree :

Yes, perhaps, however…; Yes, in a way, however…; I agree up to a point, however…; Well, you have a point there, but…; There’s something there, however…; Yes, I suppose so, however…;That’s worth thinking about, but… 7

❏

How to disagree politely:

I am not so sure about that…Do you think so? Well, it depends; I’m not so certain; I’m not sure you are right; I’m inclined to disagree with that. ❏

How to disagree strongly:

I disagree with your idea; I’m afraid I don’t agree; I’m afraid your idea is wrong; I couldn’t accept that for a minute; You can’t actually mean that; I wouldn’t go along with you, there; You must be joking; It’s possible you are mistaken about that. II. Analyze the text and give subtitles to the paragraphs (1-8). Give your reason and discuss this in the group. Use the phrases of agreement and disagreement. III. Work in groups of two. Use applications like https://app.imindmap.com/, http://prezi.com/, http://www.google.com/drive/apps.html?usp=ad_search&gclid=CIO-i_ess7wCFQeQcgodJDEAlg and create a mind map of the text, using your subtitles. Present your mind map and comment on the text. IV. There are two opposite opinions stated in the letter of a Chinese official and in Plato’s work. What reasons were provided in each opinion? LISTENING Listen to the interview with White & Case Chairman Hugh Verrier. What is his advice for law students to ready themselves for a global career? http://www.youtube.com/watch?v=v2Pzlnm7f-k Listen again and fill in the gaps in the interview: Hugh Verrier: One topic that is very dear to my heart, and I really ________________law students to consider is ___________________________________________________________ called the Jessup, which

wonderful

opportunity

for

students

demonstrate

their

desire

_____________________________ of the global legal community. We've become very active in this because we see it as a ________________________________ for young lawyers to develop into _____________________________________,

give

pathway,

wherever

student

_____________________________, in the remote parts of any country, to engage and ___________________________of that community, and the IBA (International Bar Association) is also active in this area. Visit the site of online institute devoted to the study of language and law, here is the link to lawyer jokes http://www.languageandlaw.org/JOKES.HTM, choose one and make a funny presentation to tell the story in class. Use for your presentation such an application as Smore https://www.smore.com/app 8

UNIT 2 READING FORENSICS AND FORENSICS Forensic science is the application of scientific knowledge and methodology to legal problems and criminal investigation. Forensic science encompasses various fields of science including anthropology, biology, genetics, medicine and many others, linguistics being added most recently. Sometimes called simply forensics this term could be used with different meanings. Dictionaries provide

the

following

definitions

the

term

(http://legal-

dictionary.thefreedictionary.com/Forensic+Science): Forensics is the use of science and technology to investigate and establish facts in criminal or civil courts of law; scientific tests or techniques used in the investigation of crimes. The other definition is the following: Forensics is the art or study of argumentation and formal debate. Many universities in the U.S.A. offer forensics programs to train communication and public speaking skills through the performance of individual Events and Debate. Forensic competition is a popular intercollegiate tournament in the USA which includes such events as impromptu speaking, informative speaking, prose interpretation, extemporaneous speaking, persuasive speaking, dramatization of literature, debates etc. Forensics competitors present their performances about 4-10 minutes in length, while debate students interact with students from other collegesâ&#x20AC;&#x2122; teams. The competitors are evaluated on their ability to effectively organize, deliver and refute arguments. Conducting debate research involves gathering information to support your side of the argument and information that supports your opponentâ&#x20AC;&#x2122;s side of argument so that you can effectively invalidate your opponent argument. The most common approaches to teaching arguments are formal, that is considering arguments as systems or structures. The formal approach developed by Stephen Toulmin has become popular in supporting studentsâ&#x20AC;&#x2122; argumentation skills. The other approach is critical thinking. In The Uses of Argument (1958), Toulmin proposed a layout containing six interrelated components for analyzing arguments: 1. Claim 9

Conclusions whose merit must be established. For example, if a person tries to convince a listener that he is a British citizen, the claim would be “I am a British citizen.” 2. Data The facts we appeal to as a foundation for the claim. For example, the person introduced in 1 can support his claim with the supporting data “I was born in Bermuda.” 3. Warrant The statement authorizing our movement from the data to the claim. The person must supply a warrant to bridge the gap between 1 & 2 with the statement “A man born in Bermuda will legally be a British Citizen.” 4. Backing Credentials designed to certify the statement expressed in the warrant; backing must be introduced when the warrant itself is not convincing enough to the readers or the listeners. For example, the speaker will supply the legal provisions as backing statement to show that it is true. 5. Rebuttal Statements recognizing the restrictions to which the claim may legitimately be applied. The rebuttal is exemplified as follows, “A man born in Bermuda will legally be a British citizen, unless he has betrayed Britain and has become a spy of another country.” 6. Qualifier Words or phrases expressing the speaker’s degree of force or certainty concerning the claim. The claim “I am definitely a British citizen” has a greater degree of force than the claim “I am a British citizen, presumably.” The first three elements “claim,” “data,” and “warrant” are considered as the essential components of practical arguments, while the second triad “qualifier,” “backing,” and “rebuttal” may not be needed in some arguments. This layout of argumentation was based on legal arguments and intended to be used to analyze the rationality of arguments typically found in the courtroom, then it was found applicable to the field of rhetoric and communication. (http://en.wikipedia.org/wiki/Stephen_Toulmin) To create an argument you have to: ❏ ❏ ❏ ❏ ❏

State your claim. Support it with facts (data) arranged singly. For each fact, give the evidence for the fact (warrant). For each warrant, state the quality of its validity (backing). For each warrant and its backing, think of an opposing point of view (rebuttal) 10

Example: A claim – it is morally right to use animals for testing new medicines; Data to support the claim – the law (Scientific Procedures Act) protects all lab animals from cruelty or mistreatment; A warrant to connect the data to the claim – the Scientific Procedures Act is strictly enforced; Backing – the framework of Home Office Inspections of testing labs; Qualifier – animal testing is morally acceptable when there is no other scientifically comparable alternative; Rebuttal – no, animal life is morally on a par with human life; Comment on the following issues of the text: ❏

What is forensic science?

❏

What two meanings does the term forensics have?

❏

What are forensics programs at universities intended for?

❏

What does students’ performance at forensics tournament include?

❏

What does debate research involve?

❏

Why is the information of opponent’s argument necessary?

❏

What are the main approaches to teaching arguments?

❏

What is a formal model of argument?

❏

What are the components of Toulmin’s model of an argument?

❏

Could this layout of argumentation be used in the court?

TERMINOLOGY FOCUS Match the terms and their definitions: A. statement showing or saying that something is 1.

claim

not true;

data

B. statement that something is true that you have no

warrant

definite proof of;

backing

C. support, help or active approval;

5. rebuttal

D. facts or information used for making calculations or decisions; E. a reason for doing something;

Find the definitions of the following terms in the Free Dictionary by Farlex http://www.thefreedictionary.com and think of Russian equivalents to these terms: forensic, debate, impromptu speaking, extemporaneous speaking; TRANSLATION Work in pairs: ask each other to translate separate words in the text, you may check the meaning of most difficult words in the vocabulary at the end of the course book. Then translate one of the text paragraphs, each group will present their translation for discussion in class. Consider the translation strategies you have used (translation plan) e.g. whether you used literal translation, whether you considered the context to derive the right meaning. What syntactic strategies have been used: have you changed any sentence structure?

SPEAKING ACTIVITIES I. Build your own argument following the model above. Use the information of the text or your own ideas. II. Visit the site http://www.figarospeech.com/the-3-basic-issues/ and comment on the following: ❏

What are the three basic issues of arguing according to Aristotle?

❏

What tense patterns do these core issues correspond to?

III. Create the mind map of all connections of the term “forensics”, using the application http://popplet.com/ , consider the use of this term in various areas.

REFLECTIVE WRITING ❏ Describe what you have learned from Units 1-2 (facts, linguistic knowledge). ❏ What skills have you acquired or improved? ❏ Do you have any gaps or problems in learning materials of Units 1-2?

UNIT 3 READING FORENSIC LINGUISTICS It's hard to imagine any area of life that linguistics does not touch. Law had received previous attention from anthropologists, psychologists, sociologists and political scientists but now linguists also have begun examining such matters as voice identification, authorship of written documents, unclear jury instructions, the asymmetry of power in courtroom exchanges, lawyer-client communication breakdown, the nature of perjury, problems in written legal discourse, defamation, trademark infringement, courtroom interpretation and translation difficulties, the adequacy of warning labels, and the nature of tape recorded conversation used as evidence. The term forensic linguistics began to be used commonly in the eighties and by now appears to be the established name for this area of study. By the nineties, forensic linguistics had established its own academic organization, The International Association of Forensic Linguists (http://www.iafl.org/), its own journal, a growing number of books and articles, and an increasing number of linguists doing the work. Trademark Infringement So what do forensic linguists do? Typically, they respond to requests of attorneys to help them with their law cases. For example, a lawyer may have a lawsuit involving a trademark dispute. One company may feel that another company's trade name is too much like its own. The burden of proof is on the allegedly offended party to show that the other party's name iCloud communication vs ICloud

looks like, sounds like, and means the same as their own. To a linguist, "sounds like" obviously suggests phonology,

"looks like" suggests graphology, and "means the same" suggests semantics. And this is why linguists are called upon to analyze and present their findings in trademark cases. Authorship of Written Documents Written documents also serve as data for forensic linguistics. In many cases, for example, threats exist in written form. Law enforcement agencies process hundreds of these every year, often calling on the expertise of psychologists to provide what they call a "psychological profile" of the person who sent the message. Federal Bureau of Investigation has begun to call on linguists to add the dimension of linguistic profiling to their analyses. Such profiling has two parts. Calling on their 13

knowledge of language indicators of such things as regional and social dialect, age, gender, education, and occupation, linguists analyze documents for broad clues to the identity of the writer. Linguists also provide stylistic analysis of such writings, usually by comparing the document's style with those of other documents written by possible suspects. Stylistic analysis centers on a writer's habitual language features over which the writer has little or no conscious awareness, such as mechanical errors, punctuation, discourse features and organization, and print features such as underlining, bolding or italicizing. It should be pointed out that linguistic profiling has been most effectively used to narrow down a suspect list rather than to positively identify a suspect. Criminal Cases The above are examples of how a forensic linguist is used in civil cases and in document analysis. But technological advances with recording equipment have opened the door also to criminal cases. Since the late seventies, law enforcement agencies have used tape recorders to capture criminal activity in progress. Suspects are either recorded with court authorized wire taps placed in such a way that none of the speakers is aware of being taped, or by using undercover agents who wear body microphones and engage suspects in conversation. Court authorization is not required for surreptitious body mike recording in the U.S. American law regarding surreptitious telephone taping varies between jurisdictions, some requiring the consent of only one of the parties (obviously, the one doing the taping). Other jurisdictions prohibit the practice altogether unless both parties consent. The linguist can be brought into a case either by the prosecution or the defense. If the law enforcement agency is concerned about the adequacy of the language evidence that they have gathered, they may call on a linguist to make transcripts of the conversations, analyze them and determine whether or not the target has clearly suggested or agreed to the illegal act. If the defense attorney calls on the linguist, the same issues are central. (Abridged from Forensic Linguistics by W. R. Shuy in The Handbook of Linguistics, Oxford: Blackwell, 2001) I. Explain the meaning of the italicized words. II. Comment on the following issues of the text: ❏ ❏ ❏ ❏ ❏ ❏

How did forensic linguistics develop? What is necessary to prove in trademark cases? What is linguistic profiling? Is a court authorization needed for surreptitious recording in the USA? Who calls for a linguist expert in the court? What is the role of a forensic linguist in criminal cases? 14

TERMINOLOGY FOCUS Match the legal terms and their definitions A a legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty, resulting 1. jury

in harm to the plaintiff;

2. attorney

B the means adopted to bring a supposed offender to justice and

law

enforcement

punishment by due course of law;

officer

C a group selected to hear evidence in a law case and provide a

4. lawsuit

verdict according to the evidence;

5. prosecution

D any person legally empowered to act as agent for, or in behalf of another; an officer in a court of justice who is employed by a party in a cause to manage the same for him; E an employee, the duties of whose position are primarily the prevention, investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws;

Find the definitions of the following terms in the Free Dictionary by Farlex http://www.thefreedictionary.com and think of Russian equivalents to these terms: Perjury, evidence, burden of proof; defamation, threat; TRANSLATION Work in pairs: ask each other to translate separate words in the text, you may check the meaning of most difficult words in the vocabulary at the end of the course book. Then translate one of the text paragraphs, each group will present their translation for discussion in class. Consider the translation strategies you have used (translation plan) e.g. whether you used literal translation, whether you considered the context to derive the right meaning. What syntactic strategies have been used: have you changed any sentence structure? SPEAKING ACTIVITIES I.

Provide facts from the text which support the following statements:

â??

Forensic linguistics is a new linguistic branch.

â??

Forensic linguistics is widely used in legal matters.

Work in pairs. Give your arguments for and against using surreptitious recording of

suspects. 15

III.

Listen to the part of the lecture on Forensic Linguist as Detective & Expert Witness

by Professor Malcol Coulthard, one of the founders and the first President of International Association of Forensic Linguists. http://www.youtube.com/watch?v=SBrmMAdsR8c ❏ What are three areas forensic linguists research into? ❏

What linguistic analyses were carried out to identify the authorship of text messages in the

trial? ❏

What issues of plagiarism were considered?

PROJECT WORK Inquire into development and research areas of Forensic Linguistics, search the Internet for

information.

Visit

the

site

International

Association

Forensic

Linguists

http://www.iafl.org/ and International Language and Law Association http://www.illa.org/, read What

Forensic

Linguistics?

Peter

Tiersma

http://www.languageandlaw.org/FORENSIC.HTM and make a presentation on one of the following topics: ❏ Development of Forensic linguistics. ❏ Cross cultural aspects of Forensic linguistics. ❏ Current problems of Forensic linguistics. ❏ Language evidences in the court. ❏ Forensic linguist in the court.

Lawyer Jokes http://tcotrel.tripod.com/lawyerjokes.html

UNIT 4 READING THE CREATION, STRUCTURE, AND INTERPRETATION OF THE LEGAL TEXT A legal text is something very different from ordinary speech. This is especially true of authoritative legal texts: those that create, modify, or terminate the rights and obligations of individuals or institutions. Authoritative legal texts come in a variety of genres. They include documents such as: ❏

constitutions

❏

contracts

❏

deeds

❏

orders/judgments/decrees

❏

pleadings

❏

statutes

❏

wills Each genre of legal text tends to have its own stereotypical format, is generally written in legal language (or "legalese"), and usually contains one or more legal speech acts that are meant to carry out its intended functions. Thus, a contract almost always contains one or more promises, a will contains verbs that transfer property at death, and a deed transfers property during the lifetime of its maker. The general nature of legal texts is remarkably similar across legal systems, although the details of their structure and use can vary considerably. The development of the text Legal transactions must originally have been performed by means of speech, often accompanied by rituals of various types. With the development of literacy, it became possible to make a record of such transactions in writing, or even to transact them in

Venerable Bede (672/3- 735), a monk, scholar

written form. Indeed, the writing of contracts, wills, and codes of laws was an early function of literacy in many different parts of the

world. The Evolution of Private Legal Texts In England, the birthplace of the common law that is used throughout the Englishspeaking world, an early type of legal text was the will, as well as grants of land and other types of 17

property. Throughout much of the Anglo-Saxon period, wills and grants of land were made orally, usually with witnesses present, and accompanied by some kind of ritual, such as the symbolic handing over of a clod of dirt to the purchaser or recipient. After England's conversion to Christianity, a class of literate clergymen emerged. Before long, clerics began to make written records of these wills and property transfers as memorials of the transaction, especially when the gift was made to a religious institution that had an interest in preserving evidence of the transaction in case of a future dispute. These early texts are quite clearly evidentiary rather than performative or dispositive. As some historians have pointed out, they were "after-the-fact records of the binding event that already had taken place." In other words, the performance of the legal act did not consist of the writing or the signing or sealing of a piece of paper or document. The transaction was performed orally in front of witnesses. If a written document was made, it was merely evidence of that oral ceremony, not an operative or dispositive legal document in the modern sense. This is evident from the fact that for the most part, the scribes used verbs that were in the third person and the past tense, rather than the first person, present tense verbs that are commonly used performatively, as the following introductory phrase illustrates: Her is geswutelod an ðis gewrite hu Ælfheah ealdorman his cwidæ gecwæðan hæfð... 'Here in this document it is declared how the ealdorman Ælfheah has declared his will...' (Will of Ælfheah, Whitelock 1930:22-23) In the late Anglo-Saxon period, however, there are indications of a new trend in which legal texts were no longer merely evidence of land transfers or wills. Over the centuries, it became the writing and signing of the document (or placing a seal on it) that constituted the legally operative or dispositive act. The legal transaction was now performed by means of the text. The English Statute of Wills, enacted in 1540, required that transfers of real property by will should be evidenced by a writing. Later English statutes extended the requirement of writing to transfers of personal property upon death. As a result, written evidence of a will was now essential. The development of English wills is a good illustration of how legal texts are introduced into a culture. In the beginning, such texts are almost always evidentiary, serving as nothing more than records of an oral transaction. Yet the text can also become authoritative, as have wills in the past few centuries. The same is true of another common legal text, the deed, which is used to convey real property. With wills and deeds, the transaction in question can only be performed by properly enacting written text. Not all private legal transactions require authoritative written texts. Contracts are a good example. In fact, in the law of contracts we can see all three major stages in the progression from the 18

exclusively oral to the authoritative written text. Even today, there is no requirement that a contract be in writing. A contract can be completely oral, just as in Anglo-Saxon England. (Abridged from Legal Language by P. Tiersma http://www.languageandlaw.org/) I. Explain the meaning of the italicized words. II. Comment on the following issues of the text: ❏

What are the main functions of legal texts?

❏

What may legal texts be referred to (by linguists and by lawyers)?

❏

What are the main genres of legal texts?

❏

What was the early function of literacy?

❏

What is characteristic of legal transactions in the Anglo-Saxon period?

❏

When did written records of legal transactions appear?

❏

What was the role of clergyman in developing legal texts?

❏

Why were written records made?

❏

How had the importance of written texts been changing over time?

❏

Do all private legal transactions require authoritative written texts?

TERMINOLOGY FOCUS Match the legal terms and their definitions: A. An official decision or order made by a leader or government; a judgment made by a court of law; 1. common law

B. Body of law developed in England, that is based on custom

2. Constitution

and general principles and embodied in case law and that serves

3. code

as precedent or is applied to situations not covered by statutes;

3. decree

C. An official document that gives details of a legal agreement,

5. deed

especially about who owns a building or piece of land; D. A set of basic laws or principles for a country that describe the rights and duties of its citizens and the way in which it is governed; E. A set of rules, laws; a systematic compilation of law or legal principles that is arranged by subject;

Find the definitions of the following terms in the Free Dictionary by Farlex http://www.thefreedictionary.com and think of Russian equivalents to these terms: literacy, order, genre, to convey, transaction TRANSLATION Work in pairs: ask each other to translate separate words in the text, you may check the meaning of most difficult words in the vocabulary at the end of the text book. Then translate one of the text paragraphs, each group will present their translation for discussion in class. Consider the translation strategies you have used (translation plan) e.g. whether you used literal translation, whether you considered the context to derive the right meaning. What syntactic strategies have been used: have you changed any sentence structure?

SPEAKING ACTIVITIES I. Provide facts from the text which support the following statements: 1. Early English legal texts were evidentiary. 2. Not all private legal transactions require authoritative written texts. II.

Work in pairs.

Give your arguments for and against making contracts by writing

(consider different situations). III. Visit the site http://law.suite101.com/article.cfm/legal_writing_basics read the article Legal Writing Basics for Law Students. What is the purpose of a Legal Office Memorandum? What is the format of a legal Office Memorandum? REFLECTIVE WRITING ❏ Describe what you have learned from Units 3- 4 (facts, linguistic knowledge). ❏ What skills have you acquired or improved? ❏ Do you have any gaps or problems in learning materials of Units 3-4?

UNIT 5 READING PUBLIC TEXTS The evolution of public legal texts, like statutes and judicial opinions (called "judgments" in England), was similar to that of private texts. Directly after the arrival of Christian missionaries in England, codes or compilations of laws began to appear, usually in the name of the king who had them written down. The function of these early codes was mainly to record or memorialize laws that already existed orally. The codes did not create new law, but rather created a record of law that already existed in people's minds or memories. Such texts, in other words, were mostly evidentiary. Legislation, in the sense of enacting innovative rules of behavior, was rare in England until the end of the thirteenth century. Even then, the texts of such early legislation were not authoritative in the modern sense. According to legal historian J.H. Baker, medieval legislation was "not a text which had been pored over word for word by the lawmakers, with debates upon the wording." In fact, the drafting of the text of early statutes was typically done by clerks or judges after parliament had given its assent. But towards the end of the fifteenth century, legislation in England underwent an important shift. It became "the deliberate Medieval Parliament of England

adoption of specific proposals embodied in specific texts." The text of statutes was no longer simply evidence of the law, but

constituted the law itself. The verbs no longer referred to what the king "hath ordained" or what Parliament "have established," but began to speak in the present tense of what the king and Parliament are enacting by means of the statute. There was now greater respect for the written text. Accordingly, judges felt themselves increasingly constrained by the language of the text itself. The other main source of law in a common law system is judicial opinions. A judicial opinion contains the reasoning of a judge in support of a decision. Early English judges no doubt gave their opinions orally. The first written documents containing judicial pronouncements in England date from the end of the 13th century. They contained summaries of the arguments of lawyers and the decisions of judges. They were originally intended as learning tools for law students. Critically, these

reports of what happened in court were not written by the judges themselves, but by the students or practitioners who were present in the courtroom. It seems that by the fifteenth century lawyers were beginning to treat descriptions of court proceedings not just as interesting or educational reports of what happened in court, but as actual sources of law. This, of course, was the beginning of the common law, where judges create legal rules by deciding cases that function as precedents for later decisions. Yet the text of judicial opinions never became authoritative in the way that statutory text is. English lawyers were well aware of this distinction, referring to statutes as lex scripta ("written law"), which they compared to the lex non scripta of the common law. To this day, the common law remains relatively oral, especially in England. English judges, including appellate judges, can still decide cases orally, and their opinions may or may not be reported. The highly authoritative nature of the statutory text has promoted a tendency to interpret statutes by close analysis of the words of the text. Judicial opinions, in contrast, are interpreted more by legal reasoning than by means of textual analysis. To decide the rule established by a precedential case, a common-law judge or lawyer traditionally must consider the facts of the case and how it was decided, and then use reasoning to determine which legal principle was necessary to produce the outcome. That principle was known as the holding or ratio decidendi of the case. It is worth observing that judicial opinions are more textual in the United States. At the end of the eighteenth century, American judges began to issue written opinions. What matters, for legal purposes, is what appellate judges write in their opinions. This has led to a greater emphasis on the text in determining the holding or ratio decidendi of a case. Judicial opinions are still felt to be different from statutes in the United States, but the distinction is starting to blur. (Abridged from Legal Language by P. Tiersma http://www.languageandlaw.org/) I. Explain the meaning of the italicized words. II.

Comment on the following issues of the text: ❏

What was the function of early codes of laws?

❏

How were statutes interpreted in medieval courts?

❏

When did a significant change in legislation occur?

❏

What are the main sources of law in common law system?

❏

What is judicial opinion?

❏

What were early written judicial opinions intended for?

❏

What was the beginning of common law?

❏

Can English judges decide cases orally now? 22

â??

How different is the interpretation of statutes and judicial opinions?

â??

How do judges determine the legal principle established by a precedent case?

TERMINOLOGY FOCUS Match the legal terms and their definitions:

A. a judicial decision that should be followed by a judge when deciding a later similar case; 1. appellate

B. a reason or the reasoning for and against a matter under

jurisdiction

discussion;

2. precedent

C. grounds for deciding; the principle or rule constituting the

3. ratio decidendi

basis of a court decision;

4. assent

D. the jurisdiction granted to particular courts to hear appeals

5. argument

of the decisions of lower tribunals and to reverse, affirm, or modify these decisions; E. agreement to a matter under consideration, based on freedom of choice and reasonable knowledge of the matter;

Find

the

definitions

the

following

terms

the

Free

Dictionary

Farlex

http://www.thefreedictionary.com and think of Russian equivalents to these terms: Enact, holding, courtroom, lawmaker, law book; TRANSLATION Work in pairs: ask each other to translate separate words in the text from English into Russian, you may check the meaning of most difficult words in the vocabulary at the end of the text book. Then translate one of the text paragraphs, each group will present their translation for discussion in class. Consider the translation strategies you have used (translation plan) e.g. whether you used literal translation, whether you considered the context to derive the right meaning. What syntactic strategies have been used: have you changed any sentence structure? SPEAKING ACTIVITIES I. Provide facts from the text which support the following statements: 1. Early legal texts were evidentiary. 2. Judicial opinions are not as authoritative as statutes. 23

II. Work in pairs. Give your arguments for and against written judicial opinions. CASE STUDY Read the article and consider the following issues: ❏

What is a judicial opinion?

❏

What is the structure of a judicial opinion?

❏

Comment on the main parts of a judicial opinion. How to read a Judicial Opinion: A Guide for New Law Students Judicial opinions (also known as legal opinions, legal decisions, or cases) are written decisions

authored by judges explaining how they resolved a particular legal dispute and explaining their reasoning. An opinion tells the story of the case: what the case is about, how the court is resolving the case, and why. Most legal opinions follow a simple formula. The Caption: The caption is the title of the case, such as Brown v. Board of Education. In most cases, the caption reflects the last names of the two parties to the dispute. If Ms. Smith sues Mr. Jones, the case caption may be Smith v. Jones (or, depending on the court, Jones v. Smith). In a criminal case, the government brings the case, and the government itself is listed as a party. If the federal government charges Sam Jones with a crime, for example, the case caption would be United States v. Jones. The Case Citation: Underneath the case name, you will find a legal citation that tells you the name of the court that decided the case, the law book in which the opinion was published. The Author of the Opinion: The next bit of information is the name of the judge who authored the opinion. In most cases, the opinion will simply state a last name, followed by the initial “J.” The letter stands for “Judge” or “Justice,” depending on the court. For example, “Hand, J.” refers to Judge Hand. In those jurisdictions where the judges are not called “judges,” you may see a different initial. For example, some courts call their judges “Chancellors,” so the initial will be a “C”. You will also see variations like “C.J.” for Chief Judge, “V.C.” for Vice Chancellor, etc. On occasion, the opinion will have the Latin phrase per curiam in place of the judge’s name. This phrase means “by the court,” and generally means that the opinion reflects a common view held by all of the court’s judges. The Facts of the Case: The first part of the body of the opinion is usually devoted to presenting the facts of the case. Typically, the facts tell you the judge’s understanding of the case and what the judge thought was an important aspect of the case that helped the judge reach the decision. The “facts” of a case consist mostly of the events that occurred before the legal case was filed in court, and that led to the filing of the case. For example, the facts might be that A pulled out a gun and shot B, or that A agreed to give B $100 and then changed her mind. However, most opinions also include a section on 24

the procedural history of the case: that is, what happened in the case after the case was filed in court. The procedural history usually consists of various motions, hearings, trials, and proceedings that went on in the case before the court that is writing the opinion was asked to resolve the dispute at issue. Some opinions may make your life a bit difficult by calling the parties to a case by special legal names, such as appellant, appellee, petitioner, respondent, plaintiff, defendant, and the like. For now, however, it may help to keep in mind a few simple guidelines. First of all, when parties first appear in court they are labeled using a pretty simple convention: in civil cases, where someone is bringing a lawsuit, the person bringing the lawsuit is known as the plaintiff, and the person sued is the defendant. In criminal cases filed by the government, the person who has been charged is still known as the defendant. There are no plaintiffs in criminal cases, however; the cases are brought by the government, which is referred to as “the state,” “the prosecution,” or simply “the government.” After the original court has resolved the case, the losing party may wish to seek review of that decision by filing an appeal before a higher court. An appeal is a legal proceeding before the higher court to review the decision of the original court. The original court is known as the trial court (because that’s where the trial occurs), and the higher court is known as the appellate or appeals court. A single judge presides over the trial court proceedings; however, appellate cases are decided by panels of several judges. For example, in the Federal court system, a single trial judge known as a District Court judge oversees the trial stage, and cases can then be appealed to the next higher court, the Court of Appeals, where cases are decided by panels of three judges known as Circuit Court judges. Finally, cases can then be appealed from the Court of Appeals to the U.S. Supreme Court, where cases are decided by nine judges. At the Supreme Court, the judges are called Justices, not Judges. During the proceedings before the higher court, the party that lost at the original court ordinarily is called the appellant – that is, the one bringing the appeal – and the party that won is known as the appellee – the party whose victory has been appealed. Some older opinions may refer to the appellant as the “plaintiff in error” and the appellee as the “defendant in error.” Finally, for historical reasons, some courts– including the U.S. Supreme Court– label an appeal as a “petition,” and require the losing party to petition the higher court for relief. In these cases, the party that lost before the lower court is called the petitioner, and the party that won before the lower court is called the respondent (that is, the one who appears before the higher court to respond to the losing party’s petition). The Law of the Case: After the opinion has presented the facts, it will then discuss the law. This section of the opinion describes the legal principles that the judge will use to decide the case and reach a particular outcome. In many cases, the law is presented in two stages: first the opinion will discuss the general principles of law that are relevant to the case given its facts, and next the court will 25

apply the law to the facts and reach the court’s outcome. Some cases interpret the Constitution, the founding charter of the government. Other cases interpret statutes, which is a fancy name for written laws passed by legislative bodies such as Congress. Still other cases interpret the common law, which is a term that usually refers to the body of prior case decisions (known as precedents) that derive ultimately from pre-1776 English law that the Colonists brought over from England. The source of the law can be quite important because Constitutional rules trump statutory (statute-based) rules, and statutory rules trump common law rules. As a result, the source of the court’s authority can help determine the significance of the court’s opinion. You should also look out for the method (or methods) of reasoning that the court offers to justify its decision. For example, courts may justify their decision on grounds of public policy. This is particularly likely in common law cases: the idea here is that the court believes that the legal rule it adopts is a good rule because it will lead to better results than any other rule. Courts may also justify their decisions based on the court’s understanding of the narrow function of the judiciary. When a case is governed by a statute, for example. courts may conclude that a result is required because that is what the legislature’s statute says, no matter what the court thinks would be the best rule. Similarly, when past courts have already answered similar questions before, a court may conclude that it is required to reach a particular result because it is bound by the past precedents. This is an application of the judicial practice of stare decisis, an abbreviation of a Latin phrase meaning “That which has been already decided should remain settled.” Other courts will rely on morality, fairness, or notions of justice to justify their decisions. Many courts will mix and match, relying on several or even all of these justifications. Two important ingredients you should be looking for in the legal section of the opinion are the holding of the case, if there is one, as well as any dicta the opinion may contain. The holding is the core legal principle that the case represents. It is the conclusion that the case stands for, the court’s resolution of the key legal dispute that it faced. At the opposite end of the spectrum from the holding of the case is dictum, or, to use the more common plural form, dicta. Dictum is an abbreviation of the Latin phrase “obiter dictum,” which means “a remark by the way.” Dicta are statements in an opinion that are not actually required to resolve the case before it. The distinction between the holding and dicta can be important because the holding of a case is more important than dicta. In fact, you will often hear lawyers try to minimize the importance of language in past decisions by characterizing that language as “merely dicta.” The Disposition: The disposition usually appears at the end of the main opinion, and tells you what action the court is taking with the case. For example, an appeals court may affirm the lower court 26

decision, upholding it; or it may reverse the decision, overturning it, and remand the case, sending it back to the lower court for further proceedings. For now, you should keep in mind that when a higher court affirms it means that the lower court had it right. Words like reverse, remand, and vacate means that the higher court though the lower court had it wrong. Concurring and/or Dissenting Opinions. Concurring and dissenting opinions (a.k.a. “concurrences” and “dissents”) are opinions by judges who did not see entirely eye-to-eye with the other judges of the court. In general, a concurring opinion is an opinion by a judge who would have reached the same result as the majority, but for a different reason. Dissenting opinions are opinions by judges who disagree with the majority’s result entirely. In most cases, dissenting opinions try to persuade the reader that the majority’s decision was simply incorrect. Concurrences and dissents are very important. When they’re not important, concurrences and dissents usually are edited out by casebook authors. When they are included, it means that they offer some valuable insights and raised important arguments. In fact, a strong dissent that points out a fatal flaw in the majority’s reasoning sometimes will influence later courts and convince them to decide the same question differently. Law school professors like to assign cases with concurrences and dissents because they often frame the issues better than unanimous decisions. (Abridged from How to Read a Judicial Opinion: A Guide for New Law Students by O.S. Kerr http://euro.ecom.cmu.edu/program/law/08-732/Courts/howtoreadv2.pdf

UNIT 6 READING TALKING LIKE A LAWYER Lawyers seem to have developed some linguistic quirks

that

have

little

communicative

function, and serve mainly to mark them as members of the legal fraternity. Pronunciation and Spelling as Markers of Group Cohesion. The odd pronunciation of defendant (rhyming with ant) and the spelling judgment (consistently without an e) seem to serve as a marker of group cohesion.

Ironically, when pronouncing

words of Latin or Law French origin, the recent trend is not to follow the expected traditional pronunciation of the legal profession (i.e., as though the words were English), but rather to use the articulation taught in foreign language classes. Lengthy and complex sentences Studies show that sentences in legal language are quite a bit longer than in other styles, and also have more embeddings, making them more complex. Sometimes there seems to be an attempt to state an entire statute or linguistic principle in a single sentence. Such a statute can easily be broken down into more digestible pieces with no loss in content, so there is no justification for such long sentences today. Wordiness and redundancy Lawyers are very prone to use wordy and redundant phraseology, including what is sometimes called boilerplate. Lawyers also tend to use ponderous phrases (such as ‘at slow speed’ or ‘subsequent to’) where a single word would suffice (slowly; after).On the other hand, sometimes legal language is not overly wordy at all, but highly compact or dense. The economic incentives and strategic motivations under which lawyers operate seem to be significant here: when clients are paying a large fee, there is a motivation to be verbose; when a document is written for a busy court, however, lawyers realize they have to get to the point quickly Conjoined phrases Conjoined phrases consist of words like by ‘and’ and ‘or’, as in ‘I give, devise and bequeath the rest, residue and remainder’. They have been used since Anglo-Saxon times. Conjoining words is still 28

extremely common in legal language. One reason for such lists of words is to be as comprehensive as possible. They also can add emphasis. But they can lead to ambiguity because of the rule of interpretation that every word should be given meaning and nothing treated as surplusage. Thus, careful communication requires that lawyers use such conjoined phrases with care. Unusual sentence structure Lawyers make use of unusual sentence structures, as in ‘a proposal to effect with the Society an assurance, which is taken from an insurance policy’. Often these unusual structures result in separating the subject from the verb, or splitting the verb complex, which can reduce comprehension. Negation Legal language seems to use an inordinate amount of negation. To some extent this may result from the tendency to regulate by prohibition; judges prefer negative injunctions, for example. Research reveals that especially multiple negation impairs communication and should be avoided. Impersonal Constructions A related characteristic of legal style is impersonal constructions. The best example is avoidance of first and second person expression (I and you). Elsewhere (as in the tendency of judges to refer to themselves as the court rather than I) it creates an impression of objectivity and authority, thus helping to legitimate the legal system. Multi-judge panels seem less reluctant to use we, and will even use this pronoun to refer to a decision made by their predecessors long ago. Here, the first person stresses the continuity and perceived timelessness of the law. Conclusion Many of the quirky or stylistic features of legal writing serve little or no communicative function and could easily be dispensed with, especially because they may reduce comprehension. (Abridged from Legal Language by P. Tiersma http://www.languageandlaw.org/) I. Explain the meaning of the italicized words. II. Comment on the following issues of the texts: ❏

Why do lawyers use specific language?

❏ What is the recent trend in pronunciation of Latin and French terms by lawyers? ❏ What is characteristic of sentences in legal English? ❏

Are there any justifications for using lengthy sentences?

❏

What are motivations for lawyers to be verbose?

❏

What are conjoined phrases?

❏ What syntactical structures can reduce comprehension? 29

❏

What do researchers think about using multiple negation in legalese?

❏

What is the reason of using impersonal constructions?

❏

Do stylistic features of legal language facilitate communication?

TERMINOLOGY FOCUS Match the legal terms and their definitions: A. a court order that orders a party to do or refrain from doing a certain act (or acts) as opposed to a money judgment. B. a law established by an act of the legislature; 1. verbose

C. using or containing a great and unusually excessive number of words;

2. statute

D. a court’s official decision on the matters before it. The declaration, by

3. court

a court, of the rights and duties of the parties to a lawsuit which has been

4. judgment

submitted to it for decision;

5. injunction

E. a place where justice is judicially administered; the judges, clerk, counselors and ministerial officers;

Find

the

definitions

the

following

terms

the

Free

Dictionary

Farlex

http://www.thefreedictionary.com and think of Russian equivalents to these terms: Defendant, plaintiff, claimant, respondent, prosecutor, jury;

II. Work in pairs. Give your arguments for and against using legalese in different legal documents instead of plain English.

III. Visit the blog http://ageorgialawyer.blogspot.com/2007/03/talk-like-lawyer.html read the story Talk like a Lawyer. Could you explain what caused misunderstanding between a trial attorney and a client?

IV. Visit the site EHow http://www.ehow.com/how_2032113_talk-to-lawyer.html and read the instructions how to talk to a lawyer. Comment on how useful instructions are?

REFLECTIVE WRITING ❏ Describe what you have learned from Unit 5-6(facts, linguistic knowledge) ❏ What skills have you acquired or improved? ❏

Do you have any gaps or problems in learning materials of Units 5-6?

Lawyer Jokes http://tcotrel.tripod.com/lawyerjokes.html

UNIT 7 READING THE LEGAL LEXICON Another way in which the language of the law is claimed to promote clear and concise communication is through a specific legal vocabulary. Legal Archaisms A common criticism of the legal vocabulary is that it is full of antiquated features. These include archaic morphology (â&#x20AC;&#x2DC;further affiant sayeth notâ&#x20AC;&#x2122;); the legal use of same, said, aforesaid, such and to wit; use of the subjunctive, especially in the passive (be it known); and words like herewith, thereunder, and whereto. Although these expressions often had a legitimate function in the past, the claim that archaic words or expressions should be preserved because they are somehow more precise than ordinary language is simply not defensible. Linguistic Creativity. New Wine in New Bottles Even though some legal language is quite archaic, many other old legal terms have died off as the concepts to which they refer became obsolescent. In fact, some areas of the legal lexicon are very innovative, as in terms like zoning and palimony. Such terms give the law the ability to deal with novel circumstances and legal developments. Asylees, Escapees and Tippees Another example of linguistic creativity in legal language is the frequent formation of new words ending in -ee, which contrast to those ending in -or (mortgagee/mortgagor). Although these pairs are confusing for the lay public, they can enhance communication within the profession by filling lexical gaps that exist in ordinary language. Conservative or Innovative? Legal language is neither hopelessly conservative nor remarkably innovative. Often there are reasons for using antiquated vocabulary. Like religious language, the language of the law is quite conservative with regard to sacred or authoritative texts, which adherents are reluctant to change or even to translate for fear of affecting the meaning. The fact that courts have authoritatively interpreted a term does inspire caution, of course. Further, using proven language over and over can be economical. A less palatable reason is that because archaic language is hard for most people to understand, lawyers sometimes have a financial incentive to use it to help justify their fees. Yet when dealing with new legal concepts for which there is no existing word, lawyers do not hesitate to create novel terminology. As a result of these conflicting motivations and goals, legal language is an odd mixture of archaic alongside very innovative features. 32

Formal and Ritualistic Terminology The legal lexicon also has many formal or ritualistic words and phrases. One function of such language is to emphasize that a proceeding is separate from ordinary life. Often ritualistic language frames a legal event by signaling the beginning and the end. In private legal documents, ritualistic and formal language indicates that something like a will is an important legal act, sometimes called the ritual or cautionary function of legal formalities. Of course, this function could be fulfilled by means that are more comprehensible. In fact, taken to extremes, formal language is simply pompous and serves little function besides its possible prestige value. Do and Shall When do is used in a declarative sentence, it is normally to add emphasis. This is not its function in legal language (e.g., The People of California do enact...) Here, it marks that something is a performative. The adverb ‘hereby’ (as in the People of California hereby enact...) fulfills the same function: indicating that by saying enact, the legislature by those very words engages in the act of enacting. Because do is anachronistic and unusual in this usage, it should be avoided; hereby can easily communicate performativity, where necessary. Shall is also used in an unusual sense in legal language. It is commonly said that legal use of shall does not indicate the future, but the imposition of obligation. But shall appears to function also in promises or declarations. In reality, ‘shall’ seems to mark that the phrase in which it occurs is part of the content or proposition of a performative phrase. Thus, in a contract the parties perform the act of promising by signing the contract; the content of their promises is indicated by shall. Shall does have the function of indicating that the document in which it occurs is legal, which may help explain its pervasiveness in legal language. Generally, however, the meaning of shall can be communicated more comprehensibly by must or will or is. Jargon, Argot and Technical Terms It is sometimes said that the legal vocabulary is full of argot. Argot is generally used to communicate in secret among a small group; this does not properly typify legal language. Others claim that legal terminology is largely jargon. I use the term jargon to refer to language of a profession that is not sufficiently precise to qualify as a technical term (e.g., conclusory). Jargon can be useful in facilitating in-group communication, but should obviously be avoided in communicating with the public. If the distinctive legal vocabulary actually enhances communication, it must be mainly through technical terms, or terms of art. It is sometimes claimed that legal language has few true terms of art. Any law dictionary reveals that there are large numbers of technical terms, however. Those who claim 33

otherwise may have too strict a notion of the precision required for a technical term. As long as an expression has a relatively exact meaning, is used by a particular trade or profession, and promotes brevity of expression, it fulfills an important communicative function and can properly be called a technical term. Such terms are less exact in law than in the hard sciences because legal terms typically refer to concepts that change over time, or are slightly different in divergent jurisdictions. And they may be modified by judicial decisions. Contrary to expectations, judicial decisions, by following the intent of the drafter over the "plain meaning" of a word, often make the meaning of the word less precise. Courts and the legal profession could work together to make legal terminology much more exact, but it would come at the cost of negating the intentions of speakers who use a term in a different sense. Legal terminology will therefore never be as precise as the profession might hope. Relationships among Words In ordinary English words exhibit certain systematic lexical relationships. The same is true for legal language, but with a number of deviations that can trap the uninitiated. One way that words can be related is as homonyms, or via polysemy. In either case, one word or sound sequence has two or more meanings. This can cause communication problems when legal terms have both an ordinary meaning and a divergent legal meaning (as in consideration or personal property). These words, which I call legal homonyms, are particularly problematic because laymen are very likely to (mis)interpret them in their ordinary sense, and even courts are sometimes unsure whether the ordinary or technical meaning was intended. Words can also be related as synonyms, which refer to words with very similar meanings. On the one hand, lawyers are told to avoid synonyms or elegant variation. Using a different word is assumed to invoke a different meaning. On the other hand, lawyers have a great love for long lists of synonyms, especially in conjoined phrases. Lists of synonyms can thus create interpretative problems. A final relationship is antonymy, or lexical opposites. Legal language has a tendency to create such opposition where it does not normally occur. Speech and conduct overlap in ordinary language, but American courts now treat them legally as opposites: if something is speech, the First Amendment applies; if an action is mere conduct, it does not. Yet it must be confusing for the layperson to read that burning an American flag is free "speech." (Abridged from Legal Language by P. Tiersma http://www.languageandlaw.org/) I. Explain the meaning of the italicized words.

II. Comments on the following issues of the text: ❏

What antiquated features are characteristic of legal English?

❏

What is the process of linguistic creativity like in legal English?

❏

What are functions of ritualistic terminology?

❏

What are the functions of the verb do in legal documents?

❏

What are the functions of the verb shall in legal documents?

❏

Is there any difference between argot and jargon?

❏

What is the role of technical terms?

❏

What kinds of lexical relationship are there in language?

❏ Could you find examples of synonyms, antonyms and homonyms in the text (e.g. end – beginning)? ❏

Do word relations in legal English create any problems?

TERMINOLOGY FOCUS I.

Match the legal terms and their definitions:

A. a deed, will or other formal legal document in writing; 1. term of art

B. a power constitutionally conferred upon a judge or

2. jurisdiction

magistrate, to take cognizance of and decide causes according to

3. legal act

law and to carry his sentence into execution;

4. proceeding

C. an alternation or change of something proposed in a bill;

5. amendment

D. a word having a particular meaning in a field (as the law); E. form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments and of executing;

II.

Find definitions of the following linguistic terms in the dictionary

http://dictionary.cambridge.org/dictionary/british/ : Technical Term

Archaism

Jargon

Homonym

Synonym

Antonym

III.

Argot Polysemy

What is synonym and antonym? Define the type of relations in the following word pairs (synonym or antonym): 35

Lawyer – solicitor; legal-criminal; aim-goal; accuse of – charge with; decide- solve; trial- hearing; fair – just; penalty- punishment; terms – conditions; jail – prison; prosecute- acquit; covenant – agreement; claim – counterclaim; prosecutor – barrister; judge – offender; law enforcement agency – police; defamation – libel; crime- offense; provide - deprive; unbiased – prejudiced; detain- release. IV.

What is polysemy? Give various meanings of the following words:

Case, bar, fair, customs, sentence, court, bench, term, action, claim, party, break, right, offend, remedy, damages, clause, award, dispute, article, share, bind, instruments, file.

SPEAKING ACTIVITIES I. Provide facts from the text to support the following: - Legal language is neither hopelessly conservative nor remarkably innovative. - Legal terminology will never be as precise as the profession might hope. II. Provide your arguments that technical terms enhance communication among professionals (e.g. lawyers, linguists or others). III. Read the article on William Rastell (1508 -1565), http://www.duhaime.org/LawMuseum/LawArticle-1268/William-Rastell-1508-1565.aspx Speak on his family and his role in developing of the common law and translating the first English law dictionary (Termes de la Ley). IV. Get acquainted with the following online dictionaries, comment on their structure and information provided: 

Duhaime’s Legal Dictionary http://www.duhaime.org/LegalDictionary.aspx



Nolo’s Free Dictionary of Law terms and Legal Definitions http://www.nolo.com/dictionary



The Lectric Law Library http://www.lectlaw.com/def.htm



The Free Dictionary by Farlex http://www.thefreedictionary.com/ 36

CASE STUDY Read the story and translate paragraphs which are not clear for you. Discuss the following issues in small groups: ❏

What is the most dangerous word?

❏

Why did it become dangerous?

❏

What arguments against using the word are provided?

❏

What are the functions of this word in other styles (witness or judge’s language, colloquial style, scientific The Most Dangerous Word in a Trial Lawyer’s Vocabulary

Do you know what the most dangerous word in your vocabulary is? You say it all the time. It’s the most commonly used word in the English language. If you listen to any conversation, especially conversations between lawyers, you’ll hear this word more often than any other. More than any other, this word leads to claims of improper argument and unprofessional conduct. Which word is it? “I.” That’s right – “I.” The shortest word in the dictionary is also the most dangerous. But what makes it so dangerous? “I” is dangerous because it leads to statements like “I think…” or “I believe…” Regardless of whether it’s an argument to the judge, a statement to the press, or an offhand comment during final summation, these seemingly innocuous phrases can have disastrous effects. The phrase “I believe” can overturn an otherwise valid verdict, or lead to disciplinary referral. How did “I” become so dangerous? It has its origins in the English legal system. They call it the “cab rank” rule. Keith Evans, former barrister and author of Common Sense Rules of Advocacy for Lawyers, says, “if you are offered a case that is within your field of expertise, then, if the client is willing to pay what you usually charge and your calendar shows you are free to take the case – you don’t have any choice in the matter. You must accept it. If you turn it down you can be disciplined, even disbarred!” The rule was designed to prevent loathsome clients from finding themselves without representation. It doesn’t matter whether you think the case is a winner or a loser, you are obligated to take up the cause and represent your client as best you can. The barrister’s personal feelings are irrelevant. He is there to argue one side or the other of the dispute, not to express personal opinions. That view has been passed on to our American system, and codified in many of our professional codes. For example, the ABA’s Model Rule 3.4 of Professional Conduct states, “A lawyer shall not… ‘state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused…’” That’s the “official” reason why you shouldn’t state a personal belief in your case. Here’s a more compelling reason why you shouldn’t state your personal opinion in a case: It’s not persuasive. Candidly, who cares what you think? It may sound harsh, but, in the courtroom, who cares what you believe? Unless the jurors personally know you and trust your opinion, why should they believe something you say? Simply because you said so? The only lawyer that the jurors trust in your courtroom is the judge – your opinion doesn’t carry much weight. Yet many lawyers persist in sharing their personal opinions. Here are three recent examples from criminal court: 37

1. A defense attorney seeking a more lenient sentence for her client: “I truly believe that this is a case that deserves pre-trial diversion.” 2. A prosecutor’s comment to the paper regarding the possibility of re-trying a defendant after a mistrial: “I think he is guilty of the charge, and he should be prosecuted.” 3. An assistant public defender at a motion to suppress: “I believe that my client’s version of events is the more credible one, and therefore the court should adopt my client’s version as the more credible version.” All of these comments were made by competent, experienced, and professional courtroom advocates. Yet somehow, they resorted to using one of the weakest argumentative devices available. Think about it for a moment. Which idea do you prefer – the idea that someone else proposes, or the one that you think of on your own? Once you reach a conclusion on your own, you take personal pride in the conclusion. When someone attacks your conclusion you’ll not only actively disagree with them, you’ll cling even closer to your conclusion. Jurors and audience members are the same. They like their ideas better than they like your ideas. Using “I” or stating your personal opinion shortcuts your persuasive powers. They aren’t going to believe something just because you say it’s so. Avoid the risks of a re-trial or a professional remand by omitting “I” from your vocabulary. Start by reading through the draft of your next presentation. Every time you see the word, “I,” strike it from the page. Can you replace it with the word “you”? Your jurors, readers, or listeners care more about themselves than they do about you, anyway. Give them what they want – talk about them. Approach your argument from their perspective. When you strike “I” from your courtroom vocabulary, you’ll become one of the most persuasive attorneys in your courthouse. (Retrieved from http://www.trialtheater.com/wordpress/courtroom-presentation-skills/the-mostdangerous-word-in-a-trial-lawyers-vocabulary/ )

UNIT 8 READING Legal Writing In many legal settings specialized forms of written communication are required. In many others, writing is the medium in which a lawyer must express their analysis of an issue and seek to persuade others on their clients' behalf. Any legal document must be concise, clear, and conform to the objective standards that have evolved in the legal profession. There are generally two types of legal writing. The first type requires a balanced analysis of a legal problem or issue. Examples of the first type are inter-office memoranda and letters to clients. To be effective in this form of writing, the lawyer must be sensitive to the needs, level of interest and background of the parties to whom it is addressed. A memorandum to a partner in the same firm that details definitions of basic legal concepts would be inefficient and an annoyance. In contrast, their absence from a letter to a client with no legal background could serve to confuse and complicate a simple situation. The second type of legal writing is persuasive. Examples of this type are appellate briefs and negotiation letters written on a clientâ&#x20AC;&#x2122;s behalf. The lawyer must persuade his or her audience without provoking a hostile response through disrespect or by wasting the recipient's time with unnecessary information. In presenting documents to a court or administrative agency he or she must conform to the required document style. The drafting of legal documents, such as contracts and wills, is yet another type of legal writing. Guides are available to aid a lawyer in preparing the documents but a unique application of the "form" to the facts of the situation is often required. Poor drafting can lead to unnecessary litigation and otherwise injure the interests of a client. The legal profession has its own unique system of citation. While it serves to provide the experienced reader with enough information to evaluate and retrieve the cited authorities, it may, at first, seem daunting to the lay reader. Court rules generally specify the citation format required of all memoranda or briefs filed with the court. These rules have not kept up with the changing technology of legal research. Within recent years, online and disk-based law collections have become primary research tools for many lawyers and judges. Because of these changes, there has been growing pressure on those ultimately responsible for citation norms, namely the courts, to establish new rules that no longer presuppose that a publisher's print volume (created over a year after a decision is handed down) is the key reference. Several jurisdictions have responded and many more are sure to follow. (Retrieved from http://www.law.cornell.edu/wex/legal_writing) 39

Explain the meaning of the italicized words.

II.

Comment on the following issues of the text

❏

What are the main purposes of using legal writing in legal setting?

❏

What requirements are set to drafting legal documents?

❏

What are the main types of legal writing?

❏

What is a memorandum?

❏

What should a lawyer consider to be effective in legal writing?

❏

What is persuasive writing?

❏

How specific could drafting of legal documents be?

❏

Is there a unique system of citation in legal writing?

❏

How do new technologies change the legal research?

TERMINOLOGY FOCUS Match the terms and their definitions:

Affidavit

Answer

Brief

Complaint

Counter-claim

Memorandum

Motion

Writ

Find

the

A the presentation by the plaintiff in a civil action, setting forth the claim on which relief is sought; B an application to a court to obtain an order, ruling or decision; C a short written statement outlining the terms of an agreement, transaction, or contract; D a defendant’s defense against charges; E a written order issued by court, commanding the party to whom it is addressed to perform or cease performing a specified act; F a claim filed in opposition to another claim, especially in a legal action; G a declaration in writing made under oath before a notary or other authorized officer; I H a document containing all facts and points of law pertinent to a specific case, filled by an attorney before arguing the case in court;

definitions

the

following

terms

the

Free

Dictionary

Farlex

http://www.thefreedictionary.com and think of Russian equivalents to these terms: litigation, drafting, citation, reference, conform to

Work in pairs. Give your arguments that new technologies impact greatly legal writing and

communication. II. Read the definition of persuasive writing and about structure of persuasive writing which is provided in the online dictionary. Consider using persuasive writing in various pheres (law, business etc.) and possible techniques used (facts, evidence, humour etc.) Persuasive writing, known as creative writing or an argument, is a piece of writing in which the writer uses words to convince the reader that the writerâ&#x20AC;&#x2122;s opinion is correct with regards to an issue. Persuasive writing sometimes involves convincing the reader to perform an action, or it may simply consist of an argument or several arguments to align the reader with the writerâ&#x20AC;&#x2122;s point of view. Persuasive writing is one of the most commonly used writing types in the world. Persuasive writers employ many techniques to improve their argument and show support for their claim. (http://encyclopedia.thefreedictionary.com/persuasive+writing) III. Read the article and discuss it in the group. Consider the importance of legal writing style, legal argument, legal citation and developing citation plan: The Art of Persuasion through Legal Citation Persuasive citation of legal authority is an essential part of legal writing. Proper citation involves knowing not only the basic form for citing cases, constitutions, statutes, rules, books, articles, and other legal authority, but also requires understanding the purposes and best practices for citing legal authority. The purpose of this article is to help you develop a more persuasive and effective citation style by discussing development of a citation plan, the hierarchy of authority, the role of courts and precedent; the use of pinpoint cites, parentheticals, and signals; and placement of citations. 41

The primary purposes of citation are support and attribution for the propositions advanced by the author. Proper citation further requires consideration of the source of the applicable law, whether the authority is binding or merely persuasive and the credibility attributable to the author or authority cited. In short, persuading a court to follow precedent, distinguish it, or overrule it — as the case requires to advance your client’s position — is in large part dependent upon credible citations and sound reasoning based upon the citations. Developing an Outline and Citation Plan Numerous books about effective legal writing styles are readily available. Authorities on legal writing agree that the goal is to clearly and carefully guide the reader straight to your “inescapable” conclusion. Start with an introduction that includes your thesis — which announces your major conclusion — and a roadmap outlining your legal analysis, then follow that roadmap in the succeeding paragraphs by explaining and supporting your conclusion. An example of such a writing style is known as the inverted pyramid. Like a newspaper article’s lead paragraph, the inverted pyramid style involves a first paragraph that tells the entire story. “As the argument is developed, the paragraphs become more and more specific until the finest points and subpoints have been established.” Creating a masterpiece of persuasive legal writing requires planning and developing an outline of your argument. In the same way that you plan and outline your legal argument, you should also plan and outline your citations. Review and analyze the pertinent legal authority, then select the most persuasive to include in your document. By developing a citation plan before you start writing, you will know what legal authority should be included to prove your conclusion, and you will be able to develop your legal argument around that authority to make it more persuasive to the reader. Persuasive legal citation generates more persuasive legal writing. Careful attention to this aspect of legal writing is appreciated by judges and staff attorneys who are the intended readers of your writing. More effective citation will often lead to better results for your client because a court is more willing to do what you ask if you provide precedent and sound reasoning. (S. W. Fox, W. S. Loquasto, http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/A8B63DC72FCE7882852576F10068EC D6 ) IV.

Listen to the part of the interview (up to Garner’s answer: 100 percent) of Alison Frankel with Professor Bryan Garner on Black’s Law Dictionary: http://www.youtube.com/watch?v=jDGux7zfI7M Why is this dictionary referred to as the gold standard for legal dictionaries? What was the main problem in editing the dictionary? 42

Did he have to review new or old entries? Listen to the interview for the second time, fill in the gaps and discuss the main points in detail: A. Frankel: Now I'm Alison Frankel the legal columnist for Thomson Reuters and I'm very excited to be here today with Professor Bryan Garner. Welcome professor. B. Garner: Thank you. A.

Frankel: Professor Garner is a lawyer, _________________ and professor who has written several books about English usage and ____________________ including Garner's Modern American Usage and The Elements of Legal Style. He has served as ______________ of Black's Law Dictionary since 1995 he is on his fourth edition and has co- authored two books with US Supreme ___________________________ Antonin Scalia making your case the art of persuading ___________________________

and

reading

law

the

interpretation

of__________________________. Garner is a distinguished research professor of law at Southern Methodist University's Dedman School of Law and he's taught more than 2500 writing workshops since the 1991, founding up his company Law Pros Incorporated. He also publishes a daily blog with great writing tips: at Lawpros.org. __________________________________, in case you're not aware, is the gold standard and that's an understatement for legal dictionaries in the United States. Its namesake comes from its _______________________ Henry Campbell Black who published the first edition in ___________________, today is the reference choice for legal ______________, court _________________________ and as well discuss later many Supreme _______________________, as well. I was thinking as I read the prefaces, I noticed that you said that few people do read ____________________ to two dictionaries. I am one of those people, I was noticing that they come out __________________ five years and I was thinking to myself I wonder if Brian ever feels that by the time he gets done rolling the rock up the hill he has to start all over again ________________________. B.

Garner: Well

I think it's getting easier and easier, because the book is getting better and

better,[forgive me I've got a slight cold] but the book is getting better and better and a lot of the hard work ____________________ of getting the core vocabulary for law accurately recorded and welldefined

has

been

done.

now

increasingly

the

additions

the

nuances

______________________ and some of the more interesting _______________________________ but a little bit more toward the periphery of _____________________________ still important work A. Frankel: But even the core terms do change, correct you have to review every time through you have to make sure that __________________________ are still good ones 43

B. Garner: Yes. I do. I review everything with every addition added, every entry if an entry is really well done, a certain translation of Latin phrase is probably unlikely to change, if it is for definition, but um… for me it's all about phrasing like to go over Black’s Law dictionary in 1995, one of my stipulations was that I wanted _________________________________ control. I wanted to be able to revise

all

the

definitions,

research

them

and

…

I’m

really

stickler

for

________________________, for good phrasing and I wanted the definitions to be not only _____________________________ but really well phrased A. Frankel: and how many do you know of the top of your head, how many definitions there are in this dictionary? B.Garner: about ________________ entries and probably multiple that in terms and definitions, I'm not actually sure about the number of definitions, but about 49,000 entries. A. Frankel: How many of them at this point would you say.., dating back to when you first take over the job, how many of them would you say you have had a hand in changing? B. Garner: 100 percent REFLECTIVE WRITING ❏ Describe what you have learned from Units 7-8 (facts, linguistic knowledge). ❏

What skills have you acquired or improved?

❏ Do you have any gaps or problems in learning materials of Units 7- 8?

UNIT 9 READING THE PLAIN ENGLISH MOVEMENT The premise behind the plain English movement is that legal documents ought to be plainer and more comprehensible - to the average person. It's probably fair to say that the modern movement began in the 1970s. But people have objected to the obscurity of lawyer's language for many centuries. The first major struggle in England was to get legal texts into English, the language of the people, rather than French or Latin. The problem largely arose when William, Duke of Normandy, defeated the Anglo-Saxon king Harold at the Battle of Hastings in 1066 and became king of England. William and his followers spoke a type of French. And their legal documents were mainly in Latin, and later also in French. English, in contrast, was the lower-class language of a subjugated people. The vast majority of the English people had always been English speakers. Not surprisingly, by 1422, the new king, Henry VI, was a native English speaker. Yet French did not die out among English lawyers. Au contraire, it thrived. Unhappiness about this state of affairs led to what might be considered the first plain English law: the Statute of Pleading, enacted in 1362. The Statute of Pleading, written in French, recited that French was much unknown in the realm; it therefore required that all pleas be "pleaded, shewed, defended, answered, debated, and judged in the English Tongue." An even sterner critic was Jeremy Bentham, who excoriated the language of lawyers as "literary garbage." Bentham advocated codification, in which all of the law would be systematically divided into codes on various topics. Individual parts of each code should be King Henry VI of England (1422- 1461)

small enough for people to remember, and written clearly enough for citizens to know the "exact idea of the will of the legislator." Bentham

argued that plain legal language is essential to proper governance. "Until, therefore, the nomenclature and language of law shall be improved, the great end of good government cannot be fully attained." At about the same time, the newly independent American states were also engaged in trying to achieve the great end of good government. Some of the founding fathers were well aware of the problems with legal language. John Adams criticized English legal language and the "useless words" in the colonial charters. He hoped that "common sense in common language" would become fashionable. Likewise, Thomas Jefferson lambasted the traditional style of statutes, which from their verbosity, their 45

endless tautologies, their involutions of case within case, and parenthesis within parenthesis, and their multiplied efforts at certainty by saids and aforesaids, by ors and by ands, to make them more plain, do really render them more perplexed and incomprehensible, not only to common readers, but to lawyers themselves. Unfortunately, the revolutionary fervor of the early Americans did not extend to overthrowing the language of the law. They ultimately imitated the ponderous style of his Majesty's statutes, if not their substance. A modern plain English movement did not really arise until the 1970s. David Mellinkoff's book, The Language of the Law, pointed out the many absurdities of traditional legalese. On a more practical level, Richard Wydick's Plain English for Lawyers has been widely used to teach law students the art of legal writing. In fact, plain English principles have been incorporated into the writing curriculum of most law schools. The crusade to make legal language less convoluted and more accessible to average citizens has also resonated outside the academy. In the United States, some of the earliest efforts to improve legal language directed at consumers were initiated by the Federal government, beginning rather modestly in the 1940s. In 1978 President Carter signed an executive order that required that Federal regulations be "as simple and clear as possible." Federal law now requires clear, conspicuous, accurate, or understandable language in many types of consumer transactions, including the Truth in Lending Act, the Fair Credit Reporting Act, and the Magnuson-Moss Warranty Act. Egged on by the consumer movement, the states also responded. New York enacted America's first general plain language law in 1978, and several states have followed. Most states now require straightforward language in specific transactions, especially insurance policies. After slowing during much of the 1980s, the movement has recently picked up steam. Some states are in the process of making their jury instructions more understandable, or have recently done so.

The Securities and

Exchange Commission has begun to require that the summary and certain other portions of prospectuses be in ordinary language. And the Clinton administration mandated in 1998 that federal regulations be written in plainer prose; in fact, it was part of their "reinventing government" initiative. Statutory drafters have not remained oblivious to these developments. American legislative drafting manuals now advocate the use of plain language principles. One such manual recommends avoiding elegant variation, as well as legalistic terms such as such, said, aforesaid, and to wit. It also favors the active voice over the passive. These are, of course, standard guidelines for clear writing. (Abridged from Legal Language by P. Tiersma http://www.languageandlaw.org/PLAINENGLISH.HTM)

I. Explain the meaning of the italicized words. II. Comment on the following issues of the text: ❏

What is the main objective of the plain English movement?

❏

What language was the official language in England under the Norman rule?

❏

When was the Statue of Pleading enacted?

❏

What language was the Statute of Pleading written in?

❏

What did the Statute of Pleading state?

❏

What did Jeremy Bentham, a British philosopher of law, criticize and advocate in his works on law?

❏

Did founding fathers of America criticize legal language?

❏

What were the earliest efforts of the American government to improve legal language?

❏

What state enacted the first general plain language law and when?

❏

What are guidelines for straightforward legal language?

TERMINOLIGY FOCUS Match the legal terms and their definitions:

A. a formal statement, generally written, propounding the cause of action or the defense in a case; 1. Legalese

B. a grant or guarantee of rights, power, or privileges

2. Pleading

from an authority or agency of a state or country;

3. Charter

C. a rule or order issued by a government agency and

4. Executive order

often having the force of law;

5. Federal regulation

D. the specialized language of the legal profession; E. an order issued by a government’s executive on the basis of authority specifically granted to the executive branch (as by the Constitution or a congressional act);

Find

the

definitions

the

following

terms

the

Free

Dictionary

Farlex

http://www.thefreedictionary.com and think of Russian equivalents to these terms: Plain language, advocate, consumer, aforesaid, to wit;

TRANSLATION Work in pairs: ask each other to translate separate words in the text from English into Russian, you may check the meaning of most difficult words in the vocabulary at the end of the coursebook. Then translate one of the text paragraphs, each group will present their translation for discussion in class. Consider the translation strategies you have used (translation plan) e.g. whether you used literal translation, whether you considered the context to derive the right meaning. What syntactic strategies have been used: have you changed any sentence structure? SPEAKING ACTIVITIES I. Provide facts from the text, which support the following statements: 1. Legal English has been criticized for its obscurity both in the USA and Great Britain. 2. The USA government initiated the process of improving Legal English. II. Work in pairs. Give your arguments for and against Bentham’s idea that plain legal English is essential to proper governance. III. Visit the website http://en.wikipedia.org/wiki/Jeremy_Bentham and make a brief account of the life and work of Jeremy Bentham. CASE STUDY Read the excerpt from the article in Florida Bar Journal and discuss the following points: ❏ Why legalese is criticized both by layperson and lawyers? ❏ What arguments for and against using legalese are provided in the article? ❏ Could you think of other arguments for using legalese?

Lawyers Should Use Plain Language Legal writing has long been criticized for being almost unintelligible to laypersons and on occasion, to lawyers. In his article, "The End of Legalese: The Game is Over," Robert W. Benson quoted a doctor's, a lawyer's and a judge's reactions to legalese. In reply to an insurance company, the doctor wrote: I am certain that you put a lot of thought into the letter but as far as I am concerned it is not understandable. This was not written for the common man to understand; it was presented in a smoke of confusion and "double talk." I want you to rewrite the letter so that I know simply and plainly what was on your mind. The lawyer wrote: 48

I have in my time read millions of words from the pens of judges and, despite my professional interest in them, I have rarely failed to experience a sense of defeat or even pain. Sometimes it is as though I saw people walking on stilts; sometimes I seem to be trying to see through dense fog; and always there is the feeling of being belabored with words. I have known moments when I felt actual physical shock, as though the words were bats or bricks. The judge wrote: I read briefs prepared by very prominent law firms. I bang my head against the wall, I dash my face with cold water, I parse, I excerpt, I diagram and still the message does not come through. In addition the structural content is most often mystifying. These quotes are typical of those advocating use of plain language (also referred to as "plain English") in legal writing and the abandonment of "legalese" means words other than "terms of art" which are typical in legal documents but not in ordinary English. Terms of art are those terms whose meaning is fairly well agreed to among lawyers and whose use eliminates a more lengthy phrase written in ordinary English. An example of a term of art is "stare decisis." The criticism of impenetrable legal writing is well founded, especially concerning "functional documents." "Functional documents" are documents such as contracts, jury instructions, and legislation written to be acted upon. Legal documents, especially functional documents, should be written in plain language because a reader cannot act on a document the reader cannot understand. (Abridged from Lawyers Should Use Plain Language by C.M. Bast, http://www.afn.org/~afn54735/language1.html) PROJECT WORK Write a report on one of the following topics: 1. Plain English Movement 2. International organizations of Plain English movement. 3. Language legislation (in different countries) Visit the site Law Notes, link to Law Humor: http://www.1215.org/lawnotes/lawnotes/humor.htm, Read Review of proposed Declaration of Independence and comment on the items under revision.

UNIT 10 READING DEFINING PLAIN LANGUAGE Three categories of definitions There are many definitions of plain language and plain English around the world. Many definitions are similar to each other and could be allocated to the following three categories: 1.

Numerical or formula-based definitions

Elements-focused definitions

Outcomes-focused definitions

Most definitions combine characteristics of two or even all three types. All three types of definitions play a role in determining whether a particular communication is plain language. Option1: numerical or formula-based This approach counts elements such as word and sentence length, number of syllables, length of paragraphs, font size or uses formulas applied mechanically such as Flesch-Kincaid Index, the Coleman-Liau Index, and Gunning Fog Index. Option 2: element focused This approach is based on the techniques used to write clearly, which may be classified under: structure (arranging the information in a reader friendly order), design, content, vocabulary. Option 3: outcomes-focused This approach, adopted by organizations such as the Centre for Plain language, focuses on how well readers are able to understand and use a document. It includes consideration of visual elements, making documents easy to read, not just linguistic characteristics. Some sorts of testing are strongly recommended. The purpose of language is to communicate. The purpose of plain language is to communicate clearly and effectively. It places the needs of audience over any other consideration. A communication is in plain language if it meets the needs of its audience – by using language, structure, and design so clearly and effectively that the audience has the best possible chance of readily finding what they need, understanding it, and using it. Guidelines As a starting- point for paper documents written in English the following guidelines are designed. They are not substitute for thought and should not be followed slavishly but as means to the end of serving the audience’s needs – departing from them when the end can be achieved as well or better by other means. As Phil Knight has said, ‘Writing is art, and art is best when it is unbound.’ 50

Structure ❏ Organize your points in chronological order, logical order, order of importance, or some other principle or combination of principles that is likely to make sense to the reader. ❏ Get to the main point as soon as possible, with subsidiary points afterwards. ❏

Ensure that each paragraph deals with one topic exclusively.

❏

Avoid paragraphs of more than about 40 words.

❏

Aim for an average sentence length of between about 15 and 22 words.

❏

Avoid consecutive long sentences, even if each is less than40 words.

❏

Keep subject, verb, and object as close together as possible, and generally in that order.

❏ Design ❏ Use fonts and font sizes that are easy to read. ❏ Allow sufficient white space. ❏ Avoid large blocks of dense text. ❏ Use many meaningful headings (and captions for graphics). ❏ Use lists, tables, and other graphic elements where possible to express lengthy or complex material. ❏ Use design to illustrate structure and meaning. ❏

Don’t sacrifice clarity to attractive design.

❏ Content ❏ Don’t assume the reader knows something (unless you’re sure they do). ❏ Include the information the reader wants to know – then think about what they might ask about next, and include that too. ❏

Omit superfluous material.

❏ Use words familiar to the readers where they would give the precise meaning. ❏

Where no such word exists, explain the more complex words.

❏

Give examples to explain difficult ideas.

❏

Always use the same word to mean the same thing.

❏

Omit words and concepts the reader doesn’t need (except those worth including for interest).

(Abridged from A. Cheek Defining Plain Language http://clarityinternational.net/journals/64.pdf)

I. Explain the meaning of the italicized words and phrases. II. Comment on the following issues of the text: ❏

What categories do plain language definitions fall into?

❏

Characterize the main categories of definitions.

❏

What is the purpose of using plain language?

❏

How is communication in plain language defined?

❏

Are there any guidelines to write documents?

❏

Should the guidelines be strictly followed?

❏

What are requirements for the document structure

❏

What are requirements for the document design?

❏

What are requirements for the document content?

❏

Comment on the citation by Phil Knight ‘Writing is art, and art is best when it is unbound’.

TERMINOLOGY FOCUS Match the words and their definitions:

1. Clarity 2. Structure 3. Category 4. Word 5. Syllable 6. Sentence (grammar) 7. Subject (grammar) 8. Object (grammar) 9. Paragraph

A. a sound or combination of sounds that has a meaning and is spoken or written; B. fundamental, tangible or intangible notion referring to the recognition, observation, nature and permanence of patterns and relationships of entities; C. any of several fundamental and distinct classes to which entities or concepts belong; D. a part of a piece of writing that usually deals with one subject, that begins on a new line, and that is made up of one or more sentences; E. a noun or noun equivalent (as a pronoun, gerund, or clause) denoting the goal or result of the action of a verb; F. the quality of being easily understood, expressed, remembered, etc. in a very exact way; G. any one of the parts into which a word is naturally divided when it is pronounced; I. a group of words that expresses a statement, question, command, or wish; J. the person or thing that is being discussed or described;

Find

the

definitions

the

following

terms

the

Free

Dictionary

Farlex

http://www.thefreedictionary.com and think of Russian equivalents to these terms: concept, caption, guidelines, audience, techniques; Simplify the phrases. (from Law in Samples of Plain Language Rewrites and Organizational change: http://www.careerforce.org.nz/wordpress/wp-content/uploads/WB01279v4.pdf )

We will be in a position to …

We can

First and foremost …

First

It is something I could possibly consider…

I might consider

There is an issue I would like to discuss with you in regard to … There are a number of questions that we should raise … He stated that it would be ready in a short period of time … In spite of the fact that he had missed the train… I replied in the affirmative and said … Notwithstanding the many reason given …

SPEAKING ACTIVITIES I. Provide your arguments in favour of using Numerical or formula-based, Elements-focused or Outcomes-focused approaches to using plain English. II. Read the Examples provided in Samples of Plain Language Rewrites and Organizational Change http://www.plainlanguagenetwork.org/samples/#law and comment on them (what changes could you see in the structure, vocabulary and content in these writing samples). III. Consider the mind map in Law in Samples of Plain Language Rewrites and Organizational Change P.10 and comment on different forms of written English http://www.careerforce.org.nz/wordpress/wp-content/uploads/WB01279v4.pdf ) Make up the similar mind map and develop it by adding specific features of other forms of written English. Use www.mindmap.com,

REFLECTIVE WRITING ❏

Describe what you have learned from Units 9 -10 (facts, linguistic

knowledge). ❏ ❏

What skills have you acquired or improved? Do you have any gaps or problems in learning materials of Units 9 - 10

accessible - доступный, общедоступный, понятный, досягаемый accomplish a task – выполнить задачу accuracy – правильность, точность accusation - обвинение acknowledge – допускать признавать; выражать признательность adjudication - вынесение судебного решения, разрешение дела; приговор adjudicator - судья, арбитр affiant – свидетель дающий письменные показания под присягой affidavit – письменное показание под присягой, аффидевит affiliate - филиал, отделение aforesaid - вышеизложенный, вышесказанный aforesaid - вышеизложенный, вышесказанный, вышеупомянутый allegedly - якобы, как утверждают, по утверждению allocate – предназначать, размещать, отводить, назначать Althing [`ɔ:lѲiƞ ]– альтинг (исландский парламент) ambiguity - неопределенность, двусмысленность amendment - поправка; изменение, уточнение answer – письменное объяснение ответчика по делу, возражение antonymy - антонимия (слова с противоположным значением) appellate judge - судья апелляционного суда applied linguistics - прикладная лингвистика argot - арго, жаргон, свойственный определенной группе, сленг arrive at a verdict - прийти к решению articulate - отчетливо произносить, артикулировать, ясно излагать, выражать artisan-ремесленник, мастеровой assent - согласие assignee - представитель; назначенное лицо, правопреемник asylees (asylum seeker) – беженец, просящий политическое убежище asymmetry of power - неравное положение; неравенство в силе, власти Athenian - афинский, афинянин attorney - адвокат; атторней; прокурор; поверенный, доверенное лицо 55

authentic - аутентичный, истинный, настоящий averment - доказывание, изложение фактов awl - шило backing - помощь, поддержка, подкрепление доказательствами; bankruptcy - банкротство bearing – поведение, манера держать себя; отношение, аспект; опора bequeath - завещать (движимость, деньги) bind (bound) – обязывать, связывать binding event - событие, мероприятие, действие, имеющее обязательную силу blur - делать неясным, затуманивать boilerplate - шаблон документа, форма, стереотип brief – краткое, письменное изложение дела, записка по делу, представляемая солиситором барристеру, или адвокатом в апелляционный суд burden of proof - бремя доказательств caption – заголовок, надпись под изображением, сопроводительная надпись carry out - выполнять, осуществлять, исполнять chancery - канцелярия; суд лорда-канцлера (Брит.); суд справедливости (Амер.) charter - хартия, устав; чартер civil procedure - гражданский процесс citation - цитата, цитирование claim – утверждение, заявление; требование, претензия; claim form - бланк заявление о выплате страхового возмещения claimant - истец clarity – ясность речи, разборчивость clause embedding - присоединение придаточных предложений clergyman - священник, лицо духовного звания cleric - духовное лицо, церковник сlues - улики code - свод законов, кодекс (систематический сборник законов) codification - кодификация, сведение в кодекс; нормирование и стандартизация cognizance - знание; компетенция, юрисдикция, судебное рассмотрение дела coin - создавать неологизмы; придумывать; штамповать columnist – редактор, журналист, обозреватель постоянной рубрики 56

common law - общее право, англо-саксонское право common sense - здравый смысл competence – способность, данные, знания, компетентность complaint – иск, исковое заявление, официальное обвинение, претензия complementizer - союз в придаточном предложении compound –смешивать, соединять concise - краткий, сжатый, лаконичный condemn – осуждать, порицать, приговаривать, обрекать conduct - поведение; руководство, ведение confer - даровать, давать, передавать, возлагать; обсуждать, совещаться сonfession - признание, сознание; исповедь conform to – соответствовать, приводить в соответствие с; согласовывать conjoined phrases - объединенные фразы conspicuous - видный, заметный, бросающийся в глаза consumer - потребитель; абонент content - содержание, содержимое conversely - наоборот convoluted - витой, извилистый; запутанный, сложный corporation - корпорация, акционерное общество corpus – свод (законов), корпус (текстов), собрание (сочинений) counterclaim - встречный иск, встречная претензия сourt authorization - разрешение, санкционирование суда courtroom - зал судебных заседаний courtroom exchanges - прения в суде covenant - договоренность, сделка, соглашение cross-border – заграничный, иностранный culpability – виновность, ответственность curriculum - курс обучения, учебный план data - данные, факты, сведения, информация; decode -расшифровывать deed - документ за печатью (подписанный и заверенный); акт; договор дарения, документ на право собственности deem - думать, мыслить, полагать, считать 57

defamation - диффамация, клевета defendant - ответчик, обвиняемый defense - защита, аргументация ответчика в суде deliberate –совещаться, совместно рассматривать, консультироваться, обдумывать devise - завещать (недвижимость); разрабатывать, продумывать discourse analysis - анализ дискурса (направление в лингвистике) disbar – лишать звания адвоката, права адвокатской практики dispense with - обходиться без distinguish - не применять в качестве прецедента, отличать divergent - расходящийся, отличающийся draft – составлять проект dullard – тупица, дурень, олух ealdorman/alderman - олдермен ( в Англо-Саксонской Англии назначался королем editor - редактор embodied - воплощенный, олицетворенный; материализованный; сформированный emergence – появление, выход, возникновение emphasis - выразительность, сила, акцент enact - вводить закон, принимать enforceable - имеющий исковую силу, обеспеченный правовой санкцией entity - сущность; экономический объект, самостоятельная правовая единица entry – запись, словарная статья escapee - беглец evidence - улика, свидетельские показания evidentiary - доказательный, имеющий значение exact – точный, четкий, пунктуальный excoriate - подвергать резкой критике executive order - административный указ exegesis

- экзегеза (толкование текста, особенно Библии), толкование, интерпретация

текста explicit – точный , определенный, ясный, явный, эксплицитный extemporaneous speaking - подготовленная речь “без бумажки” facilitate - облегчать, содействовать, помогать, продвигать

Federal Bureau of Investigation (FBI) - Федеральное Бюро расследований, подразделение министерства юстиции США federal regulation - постановление федерального органа fee - гонорар, плата fettered - скованный, сдерживаемый font - шрифт forensic – судебный foster - растить, поощрять, стимулировать, framework - структура, строение, система, рамки; fraternity - братство, община, содружество, ассоциация fyrd - милиция в графстве в Англо-Саксонской Англии, в которой служили все свободные жители get to the point - переходить к сути дела, говорить по существу government forms - правительственные формуляры, анкеты great end - великая цель group cohesion - принадлежность к определенной группе, общности guidelines - рекомендации, нормативы, руководящие положения hard sciences - естественные или физические науки (физика, химия, астрономия) hereby - этим, настоящим; при сём hereinafter - ниже, в дальнейшем (в документе) hereof - отсюда; из этого, об этом hereto - к этому (документу), к тому, на это herewith - при сем, при этом homonym-омоним (слова с одинаковым произношением/написанием, но разные по значению) impair - ухудшать, портить, повреждать impersonal construction - безличные предложения implement - выполнять, осуществлять, приводить в исполнение impose - налагать, устанавливать, назначать impromptu - спонтанный, неподготовленный improper – неподходящий, неправильный, неуместный in camera hearing - слушание дела при закрытых дверях in good faith - добросовестно incentive - стимул, поощрение 59

inconsistent - несовместимый, несообразный inheritance - наследование, наследство injunction - судебный запрет, запретительная норма innocuous – безобидный, безвредный Internal Revenue Code - налоговый кодекс interpretation - устный перевод; толкование, интерпретация invoke – вызывать, воспользоваться, привлекать involution - сложность, затейливость, запутанность, закручивание issue - вопрос, проблема; выпуск, издание; результат jargon - жаргон, профессиональный жаргон joint venture - совместное предприятие judgment - слушание дела в суде, решение, приговор judicial opinion - судебное заключение или решение; мнение судьи; судебная практика juror - присяжный; член жюри jury instructions - напутствие присяжным (кот. делает судья) justification - обоснование, оправдание, оправдывающие обстоятельства lambaste - нападать (словесно) ; критиковать, подвергать словесной критике, разносить в пух и прах landlord - арендодатель, домовладелец; землевладелец law case - судебное дело law enforcement agency - правоохранительные органы law suit - судебный процесс lawmaker - законодатель laymen - неспециалист, непрофессионал layout - план, расположение, формат, компоновка; learning tool - обучающее средство lease - аренда, сдача внаем legal discourse - правовой дискурс (письменные и устные тексты) legal dispute - правовой спор, юридические разногласия legal principle - правовой принцип legal term - юридический термин legalese - юридический язык lessor –арендодатель, сдающий в аренду 60

literacy - грамотность literal – буквальный, дословный. пословный literary -литературный literate- грамотный, образованный litigation – тяжба, судебный процесс lot - партия, серия (какого-л. товара) man of sense – здравомыслящий, разумный человек mandate - предоставлять мандат, давать полномочия manual - руководство, справочник, учебник, инструкция marginal - крайний, маргинальный, неважный, незначительный medieval - средневековый medium – средство, способ, среда memorandum (pl. memorandums or memoranda) - памятная записка, меморандум, служебная записка, minutes - протокол совещания. собрания missionary - миссионер, проповедник; посланник, посол mortgagee - кредитор по закладной; залогодержатель; кредитор по ипотеке motion - запрос в суд, заявление, предложение, частное ходатайство multi-judge panel - судейская коллегия namesake – одноименный, названный в честь nomenclature - номенклатура, перечень, список; терминология nonsensical –бессмысленный, абсурдный obey - подчиняться, слушаться, повиноваться object (to) - возражать; дополнение (лингв.) obligation - обязательство; долг; договор, соглашение obscurity - неизвестность, непонятность, неясность obsolescent - устаревающий, выходящий из употребления offhand – сделанный без подготовки, экспромтом, на скорую руку, неформальный omit – пропускать, не упоминать, не включать, обойтись on a par - в среднем, на одном уровне, наравне; operative - действующий, оперативный, действенный, эффективный, продуктивный, dispositive - распорядительный, регулирующий ordinance – указ, декрет, закон, предписание 61

overlap - частично совпадать; перекрывать overrule – отвергать решение по ранее рассмотренному делу с созданием новой нормы прецедентного права; отменять outcome – результат; последствие; итог; следствие palimony – алименты в гражданском браке paragraph – абзац, пункт договора parallel structures - параллельные конструкции (лингв. Напр. face to face) parenthesis- скобки; вводное слово parenthetical - вводные слова; вводный, заключенный в скобки performative - перформатив (предложение-действие, напр. Я благодарю …) perjury - лжесвидетельство persuasive – убедительный pervasiveness - распространение, проникновение pick up steam - набирать обороты, ускорять ход pinpoint – точно указывать; точный plain - простой, ясный, понятный plaintiff - истец Plato – Платон (древнегреческий философ 429-347В.С.) plea - судебный акт, процесс, тяжба pleading - заявление истца и ответчика, подаваемое в суд, состязательные бумаги, выступление стороны в суде police interrogation - допрос в полиции polysemy - полисемия, многозначность ponderous - громоздкий, нескладный, тяжеловесный pragmatics - прагматика (наука о функциях языка) predecessors - предшественник preface – предисловие, вступление premise - исходное условие, предположение, допущение preside -председательствовать, вести заседание, осуществлять контроль/руководство proceeding - судопроизводство, судебное разбирательство product liability - ответственность за продукт; ответственность производителя перед потребителем promissory note - простой вексель, долговое обязательство 62

proper - присущий, свойственный; правильный, должный prosecution - судебное преследование, предъявление иска, обвинение prospectus - проспект, рекламный справочник provision - положение, условие public utilities - коммунальные предприятия, коммунальные услуги pursuant to - в соответствии qualifier - уточнитель, спецификатор; Quantico - Квонтико, город в Вирджинии quirk - уловка, ухищрение, причуда ratio decidendi - мотивы решения, основания резолютивной части решения reading ease score - показатель удобочитаемости (текста) reasoning of a judge - основание вынесения судебного решения rebuttal - опровержение, предоставление контрдоказательств; receipt - квитанция recite - повторять вслух по памяти, декламировать, излагать redundancy - чрезмерность, избыточность, обилие reference – ссылка; ссылаться relief - освобождение, помощь, облегчение reminder - остаток; последующее имущественное право («выжидательная собственность») residue - наследство, очищенное от долгов и налогов; остаток rest - остаток roadmap – план действий, путь решения проблемы, «дорожная карта» run a risk - рисковать, подвергаться риску run counter - идти вразрез, противоречить safeguards – меры безопасности scholar – ученый, исследователь, ученик scribe - переписчик seal - печать. клеймо Securities and Exchange Commission – комиссия по ценным бумагам и биржам semantics - семантика (наука о значении) semiotics – семиотика, наука о знаках, знаковых системах sentence – приговор, выносить приговор; предложение (лингв.) set forth - предлагать, выдвигать, излагать, издать 63

shire – территориальное деление, графство shredded - кромсать, резать, рвать на клочки sign language - язык жестов, язык глухонемых sound - здравый, правильный, логичный stare decisis (Lat.) – доктрина судебного прецедента, ‘стоять на решенном’ statute of Pleading - статут о разбирательстве в суде statutory drafters - разработчики статутов (нормативных актов) stern - строгий, суровый, решительный stickler – приверженец, ярый сторонник stilt – ходули, стойка straightforward - простой; прямой, откровенный strike from – убрать, вычеркнуть, изъять subject to - при условии; допуская; в зависимости, subjugated - подчиняющиеся; покоренные submit - подчиняться, представлять на рассмотрение subpoena - вызов в суд, повестка в суд successor - преемник, наследник, правопреемник succinct – сжатый, краткий, исчерпывающий, без лишних слов summary - краткое изложение, краткие выводы, сводка summation – подведение итога, суммирование surplusage - излишек, избыток; не относящееся к делу обстоятельство surreptitious - тайный, сделанный тайком survey - опрос, анкетирование; обозрение, осмотр suspect - подозреваемый syllable - слог tautology - повторение, тавтология technical term - технический термин, специальный термин techniques – приемы, методы tenant - наниматель, арендатор, временный владелец terms of art - специальный термин, юридический термин, правовой термин testify - давать показания, свидетельствовать the uninitiated - непосвященные, несведущие thereunder - ниже, под тем 64

thrive – процветать, преуспевать, хорошо развиваться time-honoured - освященный веками, древний, почтенный timelessness - вечность tippee - лицо, которое получает информацию (tip) особенно, касающуюся стоимости акций tool – орудие, инструмент, оборудование, средство to wit - то есть, а именно trademark infringement - нарушения прав на товарный знак transaction – сделка, ведение деловых операций, мировая сделка transcript - запись, транскрипция, копия, расшифровка translation - письменный перевод, перевод treatise -трактат trial - судебное разбирательство, судебный процесс tripod - сосуд на трех ножках, треножник unambiguous - недвусмысленный, точно выраженный undercover agent - тайный агент underrate – недооценивать understatement – сдержанное высказывание, ‘мягко сказано’ unintelligible - непонятный, неясный, нечеткий verbosity - многословие; словесное наполнение veriest – archaic superlative of ‘very’ vessel – сосуд (для жидкости), корабль, судно voidable –спорный, оспоримый vulnerable - уязвимый, ранимый, восприимчивый warning labels - предупредительная этикетка warrant - ордер, предписание; основание warranty act - закон о гарантиях whereto - к которому white space - пробел will - завещание witness summons - вызов в суд свидетеля wordiness - многословие wording - форма выражения, формулировка, текст workshop - семинар 65

writ - предписание, судебный приказ, исковое заявление zoning – зонирование, районирование