Linguistic Strategies Used by Lawyers (original) (raw)
Related papers
Van der Houwen, F. (2009) Formulating disputes. Journal of Pragmatics 41(10): 2072-2085.
Journal of Pragmatics, 2009
"This paper analyzes the role of formulations in dispute resolution as portrayed on the court show Judge Judy. Formulations have been studied in various institutional settings, but no studies, to my knowledge, have examined their role in a small claims court setting. The data for this study come from the court show Judge Judy, presided over by Judge Judith Sheindlin, a former family court judge. In this televised small claims court, a new version of events is co-constructed out of various competing stories. This study illustrates how various types of formulations constrain and project subsequent interaction. Formulating parts of litigants accounts allow Sheindlin to transform the plaintiff’s and the defendant’s opposing stories into a new version of events on which she can base her judgment. Litigants may resist some of the transformations by disconfirming and repairing Sheindlin’s formulations."
International Journal of Speech Language and the Law, 2006
""This discourse-analytic study of interactions on a televised court show describes how small claims disputes are negotiated and resolved. It finds that the presiding judge Judith Sheindlin on Judge Judy, re-constructs opposing stories from plaintiff and defendant into a new story from which an agreeable-to decision follows. Televised small claims courts have received very little attention despite their potential influence on viewers’ perceptions of the justice system. In a survey by The National Center for State Courts (1999), 40.5 percent of respondents indicated that they rely ‘sometimes’ or ‘regularly’ on televised small claims courts for information about the U.S. legal system. This suggests that court shows not only entertain, but also play an important role in molding lay views of institutionalized dispute resolution. While dispute resolution has been examined from different perspectives, we know little about how participants negotiate what their dispute is about and how decisions are achieved. This study examines the interactional resources and discursive practices of Sheindlin and the litigants who have agreed to be bound by her decision. The first part examines the interactional resources, analyzing how the judge directs and transforms litigants’ stories and negotiates mutual understanding of what a case is about. The second part addresses discursive practices, analyzing the interactions in their socio-cognitive context in an effort to make explicit certain assumptions in the discourse of participants about ‘how the world works,’ and it analyzes the interactions in an effort to lay out participants’ ‘common sense’ reasoning and the potential seductiveness of the judge’s invocation of ‘common sense’ in achieving decisions. The analysis shows that Sheindlin determines the scope of a case by narrowing and by establishing or elaborating elements of litigants’ stories, the details of which may be further transformed through formulations and decisions. Further, the study finds that Sheindlin’s invocations of ‘common sense’ allow her to reduce complex disputes to manageable moral story lines with characters whose various actions are clearly ‘right’ or ‘wrong,’ making for palatable judgments. Applications of the analysis and findings to other real world situations are also explored.""
Conversational Implicatures and Legal Texts
Legal texts are often given interpretations that deviate from their literal meanings. While legal concerns often motivate these interpretations, others can be traced to linguistic phenomena. This paper argues that systematicities of language usage, captured by certain theories of conversational implicature, can sometimes explain why the meanings given to legal texts by judges differ from the literal meanings of the texts. Paul Grice's account of conversational implicature is controversial, and scholars have offered a variety of ways to conceptualize implicatures and Grice's maxims of conversation. Approaches that emphasize the systematic nature of implicatures can provide explanatory accounts of the gap between literal meaning and the meaning communicated in the text. For example, a theory of scalar implicature, a type of generalized conversational implicature, can account for the application of the interpretive principle known as ejusdem generis, which narrows the scope of 'catch-all' clauses located at the end of lists of items. Despite the availability of such theories, some scholars have argued that conversational implicatures are not applicable to legislation. The arguments, based primarily on the uniqueness of the legislative context and its non-cooperative nature, though, do not establish the inapplicability of conversational implicatures to legislation.