The law operates primarily through language. Legislative bodies enact statutes and ordinances, judges hand down decisions, juries issue verdicts, and people enter into a wide variety of contractual relationships; in each case, a legal effect is produced through language. Nevertheless, until recently, the study of legal discourse was not well developed. Since the 1980s, however, an increasing number of scholars have addressed aspects of the relationship between law and language.
The language of the law, with its specialized vocabulary and technical subject matter, is largely inaccessible to the lay public. Accordingly, a major focus of legal education is the socialization into the discourse practices of the legal profession. American law school pedagogy is based on the Socratic method. The students read and “brief ” decisions of appellate courts in order to prepare for a daunting classroom exercise in which an arbitrarily selected student is presented with a series of questions which aggressively challenge the reasoning of each prior response, thus training the student to recognize, isolate, and respond to the legal issues that are presented – that is, to “think like a lawyer.” Much of the study of legal language has focused on courtroom discourse and, particularly, on criminal and civil trials. A trial is structured by speech events – voir dire (jury selection), opening statements, witness examination, closing arguments, jury instructions, and announcement of the verdict – and Stygall’s (1994) detailed analysis of the trial of an automobile accident case demonstrates the interrelationship of these discourses in producing legal outcomes. Other studies have limited their analysis to specific aspects of courtroom interaction.
The examination of witnesses has been extensively analyzed and discussed. In an early study, Atkinson and Drew (1979) examined the interactional effects of the structuring of testimony as a series of questions and answers, resulting in a fixed order of speaking in which the lawyer controls the topics to be addressed. They also detailed the manner in which lawyers can undermine a witness’s testimony by questions which construct a damaging version of the facts. Woodbury (1984) noted that questions posed in statement form (“The light was green?”) act to signal their expected answer, and can thus be used to suggest that the witness is lying. Woodbury also noted that questions that call for a “yes” or “no” answer can be used to transform the lawyer’s question into evidence. These observations have been replicated in a number of case studies. For example, Matoesian (1993) shows how a cross-examining attorney can allocate blame by constructing a particular version of an event through a series of questions. Similarly, Chang (2004) demonstrates how prosecutors and presiding judges in Chinese criminal trials use coercive questioning to accuse defendants, invalidate their exculpatory testimony, and impose discursive punishment through shaming.
A number of scholars have commented on the narrative structure of trials. Both Stygall (1994) and Cotterill (2003) describe the trial as constructed of competing stories, while Woodbury (1984) notes that the story is elicited from the witnesses through the lawyer’s questioning. The narrative structuring of trial discourse was extensively examined in the late 1970s by Lance Bennett , who argued that the story form aids in the evaluation of conflicting versions and interpretations and allows ordinary people to make sophisticated judgments about complex issues. He notes that jurors will abstract information elicited from question-and-answer sequences during the trial and arrange them in story form in the course of their deliberations.
The lawyer’s restructuring of the evidence in closing arguments has been the subject of a number of studies. Cotterill (2003) describes the use of metaphor in the prosecution’s and defense’s closing arguments in the O. J. Simpson murder trial in order to reframe the relevant events. Similarly, Hobbs (2005) details how the defense team’s closing argument in the murder trial of millionaire Robert Durst acted to direct the jury’s attention to a single event in order to effect a shift in focus that would allow the attorneys to argue that the prosecution had not met its burden of proof.
In comparison to the language of lawyers, the language of judges remains underexplored. Robertshaw’s (1998) examination of “summing up,” the practice by which English and Welsh judges summarize the trial evidence for the jurors, and Philips’s (1998) study of how judges’ political ideologies impact their conduct of guilty-plea hearings demonstrate the impact of language on the outcome of cases. In addition, Hobbs’s (2007) analysis of the United States Supreme Court’s majority opinion in Rasul v. Bush describes the discursive processes by which the Court presents its decision as grounded in existing law. However, given the power of judges and, particularly, the role of appellate judges in the development of the law, much work remains to be done.
- Atkinson, J. M., & Drew, P. (1979). Order in court: The organisation of verbal interaction in judicial settings. London and Basingstoke: Macmillan Press.
- Chang, Y. (2004). Courtroom questioning as a culturally situated persuasive genre of talk. Discourse & Society, 15, 705–722.
- Cotterill, J. (2003). Language and power in court. Basingstoke: Palgrave Macmillan.
- Hobbs, P. (2005). Unreasonable doubt: Manipulating jurors’ perceptions in a closing argument at trial. In A. Sarat (ed.), Studies in law, politics, and society, 35, 109–144.
- Hobbs, P. (2007). Extraterritoriality and extralegality: The United States Supreme Court and Guantánamo Bay. TEXT & TALK, 27, 171–200.
- Matoesian, G. M. (1993). Reproducing rape. Cambridge: Polity.
- Philips, S. U. (1998). Ideology in the language of judges: How judges practice law, politics, and courtroom control. Oxford: Oxford University Press.
- Robertshaw, P. (1998). Summary justice: Judges address juries. London: Cassell.
- Stygall, G. (1994). Trial language. Philadelphia: John Benjamins.
- Woodbury, H. (1984). The strategic use of questions in court. Semiotica, 48, 197–228.